The opinion of the court was delivered by: Judge Munley
Before the court are plaintiff's and defendant's objections (Docs. 33, 34) to the report and recommendation (Doc. 30) of Magistrate Judge Malachy E. Mannion that defendant's motion for summary judgment (Doc. 19) be denied in part and granted in part. Having been fully briefed, the matter is ripe for disposition.
Plaintiff John Fowler ("Fowler") was born on June 11, 1944. (Fowler Dep. at 8:24-25, Def. Ex. 1, (Doc. 22-2 at 5) (hereinafter "Fowler Dep.")). Defendant Dallas Borough ("Dallas") hired Fowler as a police officer in 1973, and made him chief in 1988. (Fowler Dep. at 20:25-22:5). Fowler alleges, and Dallas denies, that defendant "ha[d] twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year." Age Discrimination in Employment Act of 1967, Pub. L. 90-202, 29 U.S.C. § 630(b) (making 20 calendar week rule a precondition for an ADEA claim) (Fowler Aff., Pl. Ex. 1, (Doc. 24-2 at 2)); (Carr Aff., Def. Ex. 27, (Doc. 22-4 at 109)).
Timothy J. Carroll ("Carroll") took office as Mayor of Defendant Dallas Borough in 2000. (Carroll Dep. at 16, Def. Ex. 2 (Doc. 22-2 at 42) (hereinafter "Carroll Dep.")) . According to Fowler, during the mayor's first term in office, the mayor told him he "was too old and [ ] made too much money." (Fowler Dep. at 53). Likewise, according to Fowler, Councilman John Oliver ("Oliver"), "wanted to know when [Fowler] was going to quit and get out of there." When Fowler indicated that he would stay until he was sixty-five, Oliver responded, "we'll make sure you get all your benefits if you leave right now." (Fowler Dep. at 54). Defendant disputes the accuracy of plaintiff's recollections.
On or about November 1, 2002, Fowler sent a memorandum to Carroll indicating that Dr. Latzko, Fowler's family physician, placed Fowler on sick leave between November 4, 2002 and November 15, 2002 related to "harassment and stress," and that Fowler would again visit Dr. Latzko on November 15, 2002 for reevaluation. (Pl. Ex. 6, (Doc. 24-2 at 18-19)). The memorandum included Dr. Latzko's note recommending leave for "health reasons." (Pl. Ex. 7, (Doc. 24-2 at 20-21)).
Carroll responded by letter on November 14, 2002, stating that Dr. Latzko's note left unclear whether Fowler was actually sick. (Pl. Ex. 8 (Doc. 24-2 at 23-24). Carroll pointed out that Fowler could only take sick time if actually sick-- not for personal reasons unrelated to illness. Carroll requested "a more specific explanation from Dr. Latzko as to the reason for [Fowler's] absence from work . . . [setting] forth his diagnosis." (Id.) Carroll placed preconditions upon Fowler returning to work, requiring that (1) Fowler's "physician [provide documentation] releasing [Fowler] to return to full duty without restriction," and that (2) he submit to a "fitness for duty examination" by a doctor selected by the defendant. (Id.) The Borough's doctor would determine if plaintiff was "mentally and physically capable of performing [his] full duties" and determine "whether [Fowler] meet[s] the physical requirements set forth in the Municipal Police Officers' Training and Education Commission [sic] (MPOETC) guidelines." (Id.)
Because Fowler had indicated that his leave was connected to "stress," the Dallas Borough Council was concerned that Fowler's ability to think or exercise judgment might be impaired. (Oliver Dep. at 30:20-23, Def. Ex. 3, (Doc. 22-2 at 92) (hereinafter "Oliver Dep.")). Likewise, Fowler's reference to stress led Carroll to be concerned that Fowler was not "sound" and that the Borough Council should "make sure that [Fowler] was okay." (Carroll Dep. at 64). However, Carroll could not explain how his concerns for Fowler's mental soundness would be resolved by imposing a physical-fitness examination (Id. at 64 to 65).
On November 18, 2002, Dr. Latzko provided the release back to work (Pl. Ex. 9, (Doc. 24-2 at 26)), and a note*fn2 specifying that Fowler was, and remained, under his care for hypertension. (Pl. Ex. 10, (Doc. 24-2 at 28)). However, Fowler refused to undergo the fitness for duty examination because, "no one else ever had to go for a test like that," (Fowler Dep. at 38), and because the "union [had] filed a grievance." (Id. at 38).*fn3 On December 3, 2002 Carroll issued a letter of reprimand for Fowler's refusal to attend his scheduled examination. (Pl. Ex. 11, (Doc. 24-2 at 30)). Between the time Carroll became mayor and the time he was deposed on August 12, 2008, Carroll could only remember one other occasion where he required a police officer to re-certify under the MPOETC guidelines or required a physician attest to such ability. (Carroll Dep. at 59:; cf. Doc. 24-3 at 30 (arbitrator noting that re-certification was then unprecedented)). Carroll claimed that the requirement for Fowler to re-certify was suggested by labor counsel's recommendation, though it was not, to Carroll's knowledge, required by any "provision" or Borough policy. (Carroll Dep. at 58, 60).
Thereafter, Fowler's union, in settling the grievance, directed him to attend a fitness examination conducted by Doctors Kline and Raymond (a neuropsychologist). (Fowler Dep. at 58-59). After Drs. Kline and Raymond cleared Fowler to return to work, Dallas did not permit him to return to work "for a while," until March 11, 2003. (Id. at 61). It is unclear from the record on what date Drs. Kline and Raymond issued their evaluations to Dallas.
At some point during this period, Carroll changed Fowler's work schedule, but no other officer's schedule was similarly changed. (Fowler Dep. at 63). Prior to the change Fowler worked only day-shifts, afterwards he was assigned afternoons and evenings. (Fowler Dep. at 63). While other officers knew their schedule a year in advance, Fowler's varied weekto-week. (Fowler Dep. at 62, 64). Finally, Carroll required Fowler, instead of part-time officers, to fill in for officers on vacation. (Carroll Dep. at 33). Carroll stated that this policy was instituted to save money, which Fowler disputes. (Id. at 32; Fowler Dep. at 63 to 64).
On Fowler's first day back to work after taking leave for hypertension, he and Carroll had a meeting which Fowler openly tape-recorded. Carroll later objected by letter to Fowler taping the meeting. (Carroll Letter, March 14, 2003, Pl. Ex. 14 (Doc. 24-2 at 38)). Over the next several months, Carroll assigned Fowler new duties and instituted new policies. (Carroll Letter, March 24, 2003*fn4 , Pl. Ex. 15 (Doc. 24-2 at 40); Moskovitz Letter, June 27, 2003*fn5 , Pl. Ex. 21 (Doc. 24-2 at 53)). Carroll issued several reprimands in regard to Fowler's conduct. (Carroll Letter, April 22, 2003*fn6 , Pl. Ex. 17 (Doc. 24-2 at 45); Carroll Letter, June 17, 2003*fn7 , Pl. Ex. 20 (Doc. 24-2 at 51) On July 10, 2003 plaintiff's counsel wrote to defendant's counsel stating that plaintiff planned to file administrative charges of disability and age discrimination unless the dispute between the parties was resolved. (Pl. Ex. 23, (Doc. 24-2 at 57)).
On or about July 21, 2003, Fowler injured his shoulder in a non-work-related accident*fn8 . (Pl. Ex. 25, (Doc. 24-2 at 64); Pl. Ex. 28 (Doc. 24-2 at 73). On July 24, 2003, Dr. Latzko wrote a note stating that because of Fowler's shoulder injury, Fowler was unable to perform his duties and that he should be excused "until further notice." (Def. Ex. 12, (Doc. 22-3 at 47). Latzko's note was forwarded on to Carroll on or about July 27, 2003. (Def. Ex. 13, (Doc. 22-3 at 49)).
Carroll responded by letter on August 12, 2003. (Id.) Carroll again required that before Fowler returned to duty he meet MPOETC fitness standards. (Id. at 49-50). Furthermore, while acknowledging that the relevant labor agreement was silent on the number of sick days Fowler might take, Carroll stated that the Borough would grant Fowler no more that eighteen (18) days per year of paid sick leave. (Id. at 49). When deposed and asked if any such restriction had been placed on any other Borough police officers, Carroll stated, "I don't believe there was any other employees that were off like this." (Carroll Dep. at 87). Answering whether "other employees of the Dallas Police Department . . . had been off for two or three weeks [like Fowler]," Carroll replied, "[n]o, sir. They're younger. They didn't take time like that." (Id.)
After his July 2003 injury, Fowler stopped reporting to work. On May 13, 2004 Carroll sent Fowler a "Pre-Honorable Discharge Notice." (Pl. Ex. 25, (Doc. 24-2 at 64)). The import of the notice was that Fowler's most recent fitness for duty examination, on April 16, 2004 with Dr. Naidu, resulted in a report which concluded that Fowler "suffer[s] from a physical condition which precludes [Fowler] from performing [his] full duties without restriction ... and [would] prevent [Fowler] from performing [his] full duties without restriction in the reasonable [sic] foreseeable future." (Id.) Carroll invited Fowler to submit a written response by May 18, 2004, including any "medical documentation or other information which indicates that [Fowler would] be capable of performing [his] full duties without restriction in the reasonably foreseeable future." (Id.)
Dr. Kim, Fowler's surgeon, in a letter dated May 18, 2004, wrote:
Mr. Fowler underwent a rotator cuff repair. During his rehabilitation, he has had some difficulty with range of motion, but has made slow but progressive gains. I feel that, at some point in the future, he stands a chance of returning to his pre-injury level.
This would allow him to return to his previous job of Chief of Police. (Def. Ex. 15, (Doc. 22-3 at 56)). Carroll responded with a letter to Dr. Kim requiring him to respond on office letterhead (as opposed to blank stationery) and to indicate whether Fowler could presently complete certain physical tasks (matching the fiftieth percentile of the MPOETC standards for males aged fifty to fifty-nine attached to Carroll's Letter of August 12, 2003, excepting "sit and reach"), and if he could not yet do so, inquiring whether "[Fowler would] ever be able to [perform those tasks]?" (Pl. Ex. 16, (Doc. 22-3 at 58)). In his deposition, Carroll indicated that officers were made to meet these requirements when they become Act 120 certified, but that they are not asked to meet the requirements a second time, even if they gain weight, get out of shape, or acquire a medical condition that did not require their missing work. (Carroll Dep. at 92 to 93). Fowler was required to submit to these tests, according to Carroll, because he had "been off for medical reasons." (Id. at 92 to 93). According to Carroll, the Borough acted on the advice of labor counsel in imposing this requirement, and Carroll believed that "when you've been out injured or something, [he didn't] really see where it is a problem" to require re-certification. (Id. at 94).
Dr. Kim wrote a follow up letter on May 26, 2004. He could not "state with certainty that [Fowler] will not be able to return to his pre-injury status" and that Fowler has the "potential" to meet the physical standards laid out in Carroll's prior letter. (Pl. Ex. 28, (Doc. 24-2 at 73)).
On June 17, 2004, Oliver, as Borough Council President, informed Fowler by letter that he had been granted an honorable discharge. (Pl. Ex. 29, (Doc. 24-2 at 75-77)). Fowler, who was sixty years old at the time of his discharge, was replaced by James Drury, who was in his ...