The opinion of the court was delivered by: Christopher C. Conner United States District Judge
Plaintiff Randy S. Zimmerman ("Zimmerman"), a former employee of the Commonwealth of Pennsylvania Department of Transportation ("PennDOT"), brings this action pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. and 42 U.S.C. § 1983, which imposes civil liability upon any individual who deprives another of a constitutionally-protected right under the color of state law. Zimmerman alleges that he was "regarded as having" a disability within the meaning of the ADA. (Doc. 1 ¶ 56.) Zimmerman also claims that the Pennsylvania State Employee Assistance Program ("SEAP") violates the ADA, in that it requires medical examinations which are not job-related and consistent with business necessity, and is unconstitutional, both on its face and as applied in his case, in that it fails to afford procedural due process. Finally, Zimmerman complains that "his involuntary admission to the SEAP program was in retaliation for the exercise of [his] First Amendment rights." (Id. at ¶ 62.) The defendants in this action are Allen D. Biehler ("Biehler"), Secretary of the Pennsylvania Department of Transportation;*fn1 Naomi Wyatt ("Wyatt"), Secretary of the Pennsylvania Office of Administration; and Donna Hoskins-Helm ("Hoskins-Helm"), chief of the Workplace Support Services Division in the Office of Administration. Presently before the court is defendants' motion for summary judgment (Doc. 29). For the reasons that follow, the motion will be granted.
I. Statement of Facts and Procedural History*fn2
On February 13, 2006, plaintiff became a permanent employee of PennDOT. (Doc. 30 ¶ 2; Doc. 40 ¶ 2.) A collective bargaining agreement governed his employment. (Doc. 30 ¶¶ 44-46; Doc. 40 ¶¶ 44-46.) In an evaluation of his work performance from February through July of 2006, plaintiff received satisfactory ratings in every category except "Work Habits" and an overall rating of satisfactory. (Doc. 30 ¶¶ 9-10; Doc. 40 ¶¶ 9-10.) On October 4, 2006, plaintiff attended a pre-disciplinary conference regarding allegations that he behaved inappropriately and used inappropriate language with a supervisor. (Doc. 30 ¶ 12; Doc. 40 ¶ 12; Doc. 31, Ex. A at 28-31.) Plaintiff attended a second pre-disciplinary conference on November 9, 2006, to address allegations that he violated PennDOT's Internet/email user policies. (Doc. 30 ¶ 15; Doc. 40 ¶ 15.) At both of these pre-disciplinary conferences, plaintiff had an opportunity to respond to the allegations against him. (Doc. 30 ¶¶ 13, 16; Doc. 40 ¶¶ 13, 16.) In addition, a union representative accompanied plaintiff to both pre-disciplinary conferences. (Doc. 30 ¶¶ 11, 14; Doc. 40 ¶¶ 11, 14.) On November 15, 2006, plaintiff sent an email to Deputy Secretary Betty Serian ("Serian"), which contained references to her "co-conspirators," to workplace harassment he claimed to be experiencing, and to alleged "civil rights violations and felonies" committed against him. (Doc. 30 ¶¶ 51-52; Doc. 40 ¶¶ 51-52.) Plaintiff attended a third pre-disciplinary conference on or about November 17, 2006, to address the allegations that he engaged in inappropriate behavior by sending the email, as well as allegations that he was absent from work without leave. (Doc. 30 ¶ 19; Doc. 40 ¶ 19.) Again, at the pre-disciplinary conference, plaintiff was accompanied by a union representative and afforded an opportunity to respond to the allegations. (Doc. 30 ¶¶ 18, 20; Doc. 40 ¶¶ 18, 20.) As a result of plaintiff's email to Serian, and as a result of the answers he gave during the pre-disciplinary conference, PennDOT personnel recommended that his be referred to SEAP for an independent psychological examination ("IPE").*fn3 (Doc. 30 ¶ 48; Doc. 40 ¶ 48.) At least one of plaintiff's superiors was concerned that plaintiff was delusional. (Doc. 30 ¶¶ 4-5, 55; Doc. 40 ¶¶ 4-5, 55.)
Dr. Christopher Ziegler evaluated plaintiff in the IPE process. (Doc. 30 ¶ 58; Doc. 40 ¶ 58.) He initially concluded that plaintiff was unfit for his position and recommended that plaintiff take medication to stabilize his thought processes. (Doc. 30 ¶ 59; Doc. 40 ¶ 59.) Dr. Ziegler referred plaintiff to Dr. Ali Ahmed, who prescribed medication for him. (Doc. 30 ¶ 67; Doc. 40 ¶ 67; Doc. 35, Ex. F at 9.) Plaintiff did not consistently take his medication as prescribed, and he continued expressing delusional ideas. (Doc. 31, Ex. A at 84-88; Doc. 35, Ex. F at 14-15.) Plaintiff stopped attending his appointments with Dr. Ahmed in June of 2007. (Doc. 30 ¶ 70; Doc. 40 ¶ 70.) Between June and December of 2007, PennDOT sent several letters to plaintiff regarding his benefits and options with respect to use of leave, but plaintiff neglected to respond to PennDOT or make any decisions about his benefits or available leave. (Doc. 30 ¶¶ 71-72; Doc. 40 ¶¶ 71-72.) By letter dated January 14, 2008, PennDOT notified plaintiff that he had been "administratively removed" from his position after exhausting all entitlements under the collective bargaining agreement.*fn4 (Doc. 31, Ex. A-7.)
Plaintiff filed the instant suit on March 24, 2008. (Doc. 1.) Defendants thereafter filed a motion for summary judgment (Doc. 29) asserting that plaintiff failed to state a claim under the ADA, the Due Process Clause, or the First Amendment. The parties have fully briefed these issues, which are now ripe for disposition.
Through summary adjudication the court may dispose of those claims that do not present a "genuine issue as to any material fact," and for which a jury trial would be an empty and unnecessary formality. See FED. R. CIV. P. 56(c). It places the burden on the non-moving party to come forth with "affirmative evidence, beyond the allegations of the pleadings," in support of its right to relief. Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); FED. R. CIV. P. 56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This evidence must be adequate, as a matter of law, to sustain a judgment in favor of the non-moving party on the claims. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986); see also FED. R. CIV. P. 56(c), (e). Only if this threshold is met may the cause of action proceed. Pappas, 331 F. Supp. 2d at 315.
Plaintiff alleges that he was "regarded as having" a disability under the ADA. Plaintiff also contends that SEAP violates the ADA and unlawfully infringes the right to procedural due process. In addition, plaintiff claims that he was referred to SEAP in retaliation for the exercise of his right to free speech. The court will first address plaintiff's ADA claim. It will then turn to his claims under the Fourteenth Amendment and the First Amendment.
Plaintiff alleges that he "was regarded as having a mental impairment that substantially limits one or more . . . major life activities . . . within the meaning of the Americans with Disabilities Act." (Doc. 1 ¶ 56); see also 42 U.S.C. § 12102. In addition, plaintiff argues that the application of SEAP in his case violated the ADA because it required a psychological examination which was neither job-related nor consistent with business necessity. See 42 U.S.C. § 12112(d)(4)(A). Defendants contend that plaintiff has failed to exhaust ...