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Acevedo v. City of Philadelphia

January 21, 2010

ROBERT ACEVEDO, PLAINTIFF,
v.
THE CITY OF PHILADELPHIA, DEFENDANT.



The opinion of the court was delivered by: Ronald L. Buckwalter, S. J.

MEMORANDUM

Currently pending before the Court are the Motion for Summary Judgment by Defendant City of Philadelphia (the "City") and the Cross-motion for Summary Judgment by Plaintiff Robert Acevedo. For the following reasons, Defendant's Motion is granted in part and denied in part, and Plaintiff's Motion is denied in its entirety.

I. FACTUAL AND PROCEDURAL HISTORY*fn1

A. General Background of Regulation 32

This action focuses on the operation of Philadelphia Civil Service Regulation 32 ("Regulation 32" or the "Regulation") and its alleged discriminatory effect on Plaintiff, as well as other individuals with disabilities in violation of the Rehabilitation Act, 29 U.S.C. § 794, et seq. Philadelphia City Council passed Regulation 32 in 1953. (Pl.'s Mot. Summ. J., Ex. D, Dep. of Hilary Cornell ("Cornell Dep."), 6:16-23, Aug. 6, 2009.) The Regulation applies to disabled individuals with the purpose of "provid[ing] benefits for . . . all employees in the civil service except, temporary emergency, seasonal, and part-time employees, and those paid at established hourly rate." (Def.'s Mot. Summ. J., Ex. A ("Regulation 32") §§ 32.011, 32.012.) According to this Regulation, a "disability" is: a physical or mental condition caused by injury or occupational disease, including heart and lung ailments, which is service-connected and prevents an employee from performing the essential functions of the job classification to which the employee is assigned, with or without accommodation. For purposes of this section, disability does not include any condition which is self-inflicted or caused by another person for reasons personal to the employee and not because of this employment. (Id. § 32.033.) Once an employee is deemed disabled, he or she is entitled to either seventy-five or eighty percent of the base salary he/she was being paid on the date of disability (depending on whether the employee is required to make Social Security contributions). (Id. § 32.023.) For a police officer injured on duty as either "an immediate result of the violent conduct of a third party directed towards the officer or a member of the public," or "an immediate result of performing other heroic action in an emergency situation in the line of duty," Regulation 32 provides that such officer shall receive 100% of the officer's pre-injury base pay, including longevity. (Id.)

The Regulation defines the various types of disabilities that it covers. A "partial disability" is one "which prevents an employee from performing the normal duties of the employee's position, but which does not prevent the employee from performing the duties of some other position in the civil service." (Id. § 32.026.) A "total disability" is one "which prevents an employee from performing any kind of gainful employment." (Id. § 32.0210.) A "permanent disability" is a "disability determined as not medically correctable and likely to continue for the remainder of the employee's life." (Id. § 32.027.) Finally, a "temporary disability" is a "disability determined not to be permanent." (Id. § 32.029.)

According to Regulation 32, an employee who is "temporarily disabled" "may be continued in such status for a period not to exceed one year for each work-related injury," unless extended in six month increments at the recommendation of the Medical Director. (Id. § 32.045.) An employee, however, may not be continued in temporary total disability status for more than three years. (Id.) Similarly, a "permanently and totally disabled" employee shall be compensated at disability salary for at least one year and potentially longer at the recommendation of the Medical Director, but for no longer than three years. (Id. § 32.0511.) Finally, and most important for the present case, a "permanently and partially disabled" employee shall be referred for re-employment in a position compatible with his or her disability, skills, abilities, and aptitudes, and shall receive supplemental compensation equaling the difference between the salary rate of the pre-injury position and the salary rate of the secondary position. (Id. §§ 32.061, 32.06213.) If a secondary position is not available, either due to the lack of vacancies or the employee's disability, the employee shall be compensated at disability salary for a period of up to six months, which may be extended for up to one year. (Id. § 32.0642.)

An employee who is separated from his or her position as "permanently and partially disabled" and who seeks to receive his or her pension must apply to the Board of Pensions. (Cornell Dep. 16:25-18:9.) Such an employee may not receive both a service-connected disability pension and a workers' compensation pension. (Id. 18:10-22.) An employee separated as permanently and either partially or totally disabled forfeits all accumulated sick leave and vacation time. (Regulation 32 §§ 32.053, 32.0642; Pl.'s Mot. Summ. J., Ex. K, Response to Request for Admissions ("Response to Request") No. 11.)

B. Administration of Regulation 32

Wilhelmina Korevaar is the current Medical Director of the Employee Disability Program of Philadelphia. (Def.'s Mot. Summ. J., Ex. B, Wilhelmina Korevaar Aff. ("Korevaar Aff.") ¶ 1.) As Medical Director, Dr. Korevaar is responsible for the review of medical documentation regarding City employees who are participating in the disability programs offered by the City, including Regulation 32. (Id. ¶ 2.) In addition, she bears the initial responsibility for determining whether a City employee sustained a service-connected injury and whether that injury is total or partial and permanent or temporary. (Cornell Dep. 19:21-20:5; Regulation 32 § 32.031.)

As explained by Dr. Korevaar, the disability determination process begins when she first receives a notice from the employee's health care providers stating that the employee has reached "maximum medical improvement." (Korevaar Aff. ¶ 3.) Thereafter, she schedules a meeting with the employee to discuss his or her disability status and she reviews any medical documentation brought by the employees from their own medical providers, as well as medical documentation provided by the City's third-party administrator. (Id.) In making her decision, Dr. Korevaar considers the employee's viewpoint, all submitted medical documentation, and the essential functions of the employee's position. (Id. ¶ 5.) She does not examine the employee. (Pl.'s Mot. Summ. J. Ex. K, Response to Request No. 16.) Both the treating doctor's assessment and the individual employee's assessment are given great weight. (Pl.'s Mot. Summ. J., Ex. I, Dep. of Wilhelmina Korevaar ("Korevaar Dep.") 33:16-25, 45:4-17, 52:19-53:12, Mar. 17, 2005.) She has never determined individuals to be permanently and partially disabled if they believed that they could do their pre-injury jobs. (Id. at 45:10-17.)

In order for an employee to be deemed not disabled, for purposes of Regulation 32, he or she needs to be able to perform all of the essential functions of the job classification to which the employee is assigned. (Regulation 32 §§ 32.022, 32.026; Korevaar Aff. ¶ 5; Cornell Dep. 21:10-22:6.) To make such a determination, Dr. Korevaar relies on each department's requirements for full, active duty and standard job descriptions. (Korevaar Dep. 45:18-21.) Full, active duty refers to particular job classifications, not specific jobs within them. (Id. at 45:22-25.) In some more unusual job classifications, Dr. Korevaar contacts the department to understand precisely what a classification encompasses and what opportunities actually exist. (Id. at 50:7-51:8.)

Once the Medical Director makes the initial determination of the nature and extent of disability, either the disabled employee or the appointing authority has the right, within fifteen days after receipt by the employee of written notice of the Medical Director's decision, to ask that a Medical Board review the determination of disability. (Regulation 32 § 32.0312.) The employee may then, at his or her own expense, obtain and present to the Medical Board any medical histories, reports, or testimony. (Id. § 32.0313.) Upon completing a review of the evidence, the Medical Board reports its findings and conclusions to the appointing authority and to the disabled employee or employee's physicians. (Id. § 32.0314.) These findings and conclusions are subject only to appeal to the Civil Service Commission. (Id. §§ 32.0314, 32.12.) Civil Service Commission decisions are then appealable to the Court of Common Pleas of Philadelphia County. 2 PA. CONS. STAT. § 752 (2008).

If someone is deemed to be "permanently and partially disabled," he or she meets with the Medical Director to discuss various options such as participating in the "secondary employment" program -- which is discussed in more detail below -- or obtaining a reprieve of an additional few months for the condition to improve. (Cornell Dep. 29:5-30:3.) The "permanently and partially disabled" determination is not a finalization of disability status. (Id. at 29:23-30:3.) The discussion is rather informal and simply explores what the person wants to do and what they believe their medical condition to be. (Id. at 33:22-34:11.) Moreover, the Medical Director and employee may have additional meetings on the subject. (Id. at 35:8-36:7.) If the employee has reached a three-year aggregate or maximum at the time they meet with the Medical Director, however, there are no options available to that employee to remain within City employment other than the "secondary employment" program. (Id. at 34:20-35:4.)

C. The Secondary Employment Program

For employees who are determined to be permanently and partially disabled under Regulation 32, the City maintains a secondary placement program, which operates to provide "possible re-employment in a position compatible with [the] employee's disability, skills, abilities or aptitudes." (Regulation 32 § 32.061.) The secondary employment program falls under the auspices of the City's Personnel Department ("Central Personnel"), which handles personnel issues for the entire City. (Pl.'s Mot. Summ. J., Ex. K, Response to Request No. 27.) The City's Director of Central Personnel has the responsibility for, among other things, recommending changes to Regulation 32 for consideration by the Philadelphia Civil Service Commission. (Id. Response to Request No. 29.) Secondary employment is available not only to Police Department employees, but to all City employees. (Pl.'s Mot. Summ. J., Ex. E, Dep. of Tahira Jiles ("Jiles Dep."), 8:14-9:3, Aug. 6, 2009.) When individuals enter secondary employment, they are separated from their particular department's payroll and put on the payroll of whatever secondary department they enter. (Id.) Although the individual receives the minimum pay step of the pay range for the new position, the pay for the secondary position is supplemented by the difference between the salary rate of the secondary position and the pre-injury salary rate, provided that as the employee receives pay step increases in the secondary position, the supplementary pay is decreased accordingly. (Regulation 32 §§ 32,0611, 32.06213.) Upon reaching retirement, or at the expiration of one year from the date of disability (whichever is later), supplementary pay shall cease. (Id. § 32.0623.)

Secondary employment is not a guarantee. (Jiles Dep. 11:11-16.) In fact, an employee who is deemed permanently and partially disabled under Regulation 32 will only obtain a secondary employment if a position is available within six months, which may be extended at the discretion of the appointing authority for up to one year. (Id. at 11:17-24; Regulation 32 § 32.0642.) During that six-month window, if the individual cannot be placed either due to his or her physical disability or because of lack of vacancies, he or she shall continue to be compensated at disability salary. (Regulation 32 § 32.0642.) If, at the termination of the maximum one-year period, the individual is not yet placed in secondary employment, he or she shall be separated from City employment and forfeit all claims or rights to accumulated sick and vacation leave. (Id.; Jiles Dep. 22:4-9.) Likewise, an individual who refuses the offered secondary position may be separated from the City's employment and lose right to leave time. (Regulation 32 § 32.0613.) Once an individual is separated from City employment under these provisions, he or she is placed on workers' compensation benefits and can apply for various types of pensions. (Jiles Dep. 23:21-24:5.)

D. The Philadelphia Police Department and Regulation 32

The Philadelphia Police Department ("Police Department") is the fourth largest metropolitan police department in the United States. (Pl.'s Mot. Summ. J., Ex. K, Response to Request No. 46.) It employs approximately 6,700 sworn officers and 830 civilian employees. (Id. Response to Request No. 47.) Sylvester Johnson served as the Police Commissioner for the City from January 4, 2002 until January 7, 2008. (Id. Response to Request No. 49.) As the Police Commissioner, Johnson was the final decision maker regarding the making and implementation of polices, practices, and procedures within the Police Department. (Id. Response to Request No. 50.)

The Personnel Director of the Police Department at the time relevant to this lawsuit was Lynda Orfanelli. (Pl.'s Mot. Summ. J., Ex. L; Pl.'s Mot. Summ. J., Ex. G, Dep. Of Albert D'Atlio ("D'Atilio Dep."), 7:13-17, Aug. 21, 2009.) Further, at the times relevant to this lawsuit, Deputy Commissioner John J. Gaittens oversaw the Bureau of Administration and Training, including the Safety Office and/or Division. (Pl.'s Mot. Summ. J. Ex. K, Response to Request No. 56.) Deputy Commissioner Gaittens reports directly to the Police Commissioner. (Id. Response to Request No. 57.) Gaittens does not handle any training in matters under the ADA or the Rehabilitation Act. (Pl.'s Mot. Summ. J., Ex. F, Dep. of John Gaittens ("Gaittens Dep."), 13:11-14:20, Aug. 21, 2009.) That responsibility rests with Sergeant Henry Trusch, who works in the Labor Relations Unit and handles all requests for disability accommodation. (Id. at 14:21-15:21.)

The City uses one job description for each of the positions of police officer, detective, sergeant, corporal, lieutenant, and captain, regardless of the actual job duties which an individual officer performs in a particular job assignment. (Pl.'s Mot. Summ. J. Ex. K, Response to Request No. 72.) The Medical Director refers to these descriptions when making a disability assessment for a police officer. (Cornell Dep. 25:13-26:7.) There are no separate job specifications for officers who are in limited duty capacities. (Pl.'s Mot. Summ. J., Ex. A, Dep. of Carol Madden ("Madden Dep."), 66:23-67:2, Jul. 1, 2009.) Deputy Commissioner Gaittens testified that regardless of where an officer is assigned, he or she is responsible for being able to perform all of the duties as outlined in the job description. (Gaittens Dep. 22:12-22.)

The written job description for a "Police Officer I" states, in relevant part as follows:

GENERAL DEFINITION

This is general duty police work on an assigned shift involving the protection of life and property, enforcement of laws, and investigation of crimes.

Work is performed under the supervision of a police officer of high rank. The employee has a controlling impact on the prevention of crime within an assigned area. Work requires regular exposure to uncontrolled and/or unpredictable conditions and the frequent exercise of moderate physical effort.

TYPICAL EXAMPLES OF WORK (ILLUSTRATIVE ONLY)

Patrols a designated area of the city, on foot or horseback, or in a car[], motorcycle, or police boat to prevent and discover the commission of crime and to enforce traffic and parking regulations; answers calls and complaints, taking the necessary police action.

Takes proper police action at scene of crime, administers first aid, gathers evidence, locates witnesses and makes arrest; appears in court to present evidence and testify against persons accused of crimes.

Investigates persons suspected of being engaged in gambling, illegal sale of liquors, or other vice activities; checks the operation of taverns, poolrooms, dance halls, clubs, and similar establishments for compliance with laws and ordinances. Ascertains validity of information or secures evidence for the arrest of persons alleged to have committed a crime; searches for and preserves evidence; interviews suspects, prisoners, complainants, and witnesses to obtain information about crimes; reports automobile accidents, interviews witnesses, takes information, and makes detailed reports.

Investigates complaints concerning juveniles; discusses the case with complainant, juvenile, parents and others who may be able to aid in the case; investigates crimes by and against juveniles; testifies in court concerning case, visits neighborhood boy's clubs and recreations centers, counseling leaders on juvenile problems.

May serve in the district operations office to perform necessary clerical procedures connected with police work.

Performs related work as necessary.

SKILL IN:

1. the use and care of firearms

ABILITY TO:

2. cope with situations firmly, courteously, tactfully and with respect for the rights of others.

3. analyze situations quickly and objectively, and to determine a proper course of action to be taken.

4. understand and carry out oral and written instructions.

5. write and speak effectively.

6. learn clerical procedures connected with police work.

REQUIRED KNOWLEDGES, SKILLS AND ABILITIES KNOWLEDGE OF:

* the use, care and safe handling of firearms.

* the laws controlling, and the procedures, practices and techniques necessary to police patrol operations.

* the laws, codes, statutes and regulations concerning criminal activity, especially when they apply to law enforcement operations.

* the criminal justice system as it applies to law enforcement operations.

* the techniques, practice and procedures necessary to the effective interaction with the general public, victims, suspects, and officers of other agencies and municipalities.

* duty manuals, departmental organizations, administrative direction and applicable City ordinances.

MINIMUM ACCEPTABLE TRAINING AND EXPERIENCE * * * PHYSICAL AND ...


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