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Richard Mcdonald v. Pennsylvania State Police; Colonel Frank Pawlowski

April 1, 2011

RICHARD MCDONALD, PLAINTIFF,
v.
PENNSYLVANIA STATE POLICE; COLONEL FRANK PAWLOWSKI, COMMISSIONER OF PENNSYLVANIA STATE POLICE IN HIS OFFICIAL CAPACITY;
MAJOR JOHN GALLAHER, IN HIS INDIVIDUAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: McVerry, J.

MEMORANDUM OPINION AND ORDER OF COURT

Presently before the Court is DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Doc. No. 46). The issues have been fully briefed (Document Nos. 47 and 56). The parties have also developed their respective positions regarding the Concise Statements of Material Facts and have submitted numerous exhibits (Document Nos. 48, 49, 57, 58, 59). The summary judgment motion is ripe for disposition.*fn1

Factual and Procedural Background

The Court appreciates the extensive appendix provided by Plaintiff Richard McDonald (hereinafter "Plaintiff" or "McDonald"), which sets forth the background and chronology of the dispute. Although the Court recognizes that Defendants have not had the opportunity to respond to Plaintiff's additional facts, at the summary judgment stage of the case all facts and reasonable inferences therefrom must be drawn in favor of the non-moving party.

Defendant Pennsylvania State Police ("PSP") is an agency of the Commonwealth of Pennsylvania. The PSP, among other things, administers the Municipal Police Officers Education and Training Commission ("MPOETC"), a twenty member commission charged with the responsibility to establish and administer training and certification of police officers. 53 Pa.C.S.A. § 2164. In order to serve as a police officer in a municipal police department, the officer must be certified by MPOETC pursuant to Act 120. Defendant Pawlawski was the Commissioner of the PSP and served as the Chairman of MPOETC by virtue of that position. 53 Pa.C.S.A. § 2163. Defendant Gallaher served as the Executive Director of MPOETC and administered the program and staff of fifteen people on a daily basis. MPOETC administrative officer Beverly Young, certification unit supervisor Judy Herr and application processor Erica Aikens were more directly involved in processing applications for certification.

Plaintiff has, throughout his career, been employed in various law enforcement capacities in Pennsylvania. Between 1989 and 2002, Plaintiff was employed by the City of Pittsburgh Bureau of Police as a uniformed officer, a member of the drug task force and as a detective in the homicide unit. As a Pittsburgh Police officer, Plaintiff was certified by MPOETC as having fulfilled the necessary education and training requirements to serve in that capacity. Following his tenure as a Pittsburgh Police officer, Plaintiff was employed by the Pennsylvania Office of Attorney General as a "Special Agent II" from 2002 to 2006. Act 120 certification was not required for McDonald's employment with the Commonwealth and his certification lapsed.

In December 2002, McDonald suffered a work-related automobile accident, in which he sustained a herniated disc at L5-S1. He continued to perform his duties as a special agent for approximately one year after the accident. Due to chronic pain, McDonald had lumbar decompression and fusion surgery in November 2003. After the surgery, McDonald attempted to resume his duties as a special agent, but was unable to do so, and his employment was eventually terminated.*fn2 In July 2006, McDonald had additional surgery to remove the pedicle screw and other hardware that had been implanted in the original surgery. McDonald received additional therapy, a continuing course of pain management therapy, and his condition began to improve.

As a direct result of his injuries, Plaintiff was lawfully prescribed the narcotic pain reliever Avinza. At all relevant times, he was prescribed a stable dosage of 60 mg per day. McDonald testified that, with Avinza, he has no physical limitations that would prevent him from performing the duties of a police officer. He can bend, handcuff a suspect who is lying on the ground, lift a person, and subdue a person. McDonald is limited only as to the ability to sit in a car for hours on end or to stand in one place for an extended period of time. As McDonald explained, the Avinza helps to minimize the pain from his nerve damage so that he is able to perform his life activities.

In May 2007, the Borough of Ellwood City, Pennsylvania (the "Borough") offered Plaintiff the position of Police Chief. In order to serve in that capacity, Plaintiff was required to be re-certified by MPOETC. On August 20, 2007, Plaintiff and the Borough entered into an employment agreement and Plaintiff commenced work as the Chief of Police for the Borough.

In June/July 2007 and again in April 2008, the Borough of Ellwood City requested that MPOETC re-certify Plaintiff as a police officer.

The MPOETC application contained a Physical Examination report completed by Dr. Andrew Margolis on May 25, 2007, which stated that McDonald was physically fit to be certified as a police officer. The MPOETC application also contained a Psychological Report dated June 5, 2007 by Julie Uran, Ph.D., Psychologist. Dr. Uran opined that there was "no indication that would preclude [McDonald] from execution of duties as a police officer to include weapon usage." The Report noted McDonald's car accident and resultant back pain, but did not specifically address the use of Avinza.

On July 16, 2007, MPOETC notified the Borough that McDonald had passed the Certification Exam and, upon receipt of a completed application with required documentation, he would be recommended for certification as a police officer as a "waiver of training" applicant. On October 12, 2007, MPOETC notified the Borough that the Commission had decided to deny certification. The letter explained that based on the documents reviewed by the medical advisor to the Commission, McDonald did not have the physical capacity to perform the essential job tasks of a police officer without medical restriction. The "medical advisor" was Darby Hand, D.O., FACP, a PSP medical officer. In a two-page email on October 2, 2007 to Judy Herr, Dr. Hand explained his rationale for concluding that McDonald was physically unable to perform the duties of a police officer. In essence, Dr. Hand credited the consensus of three pre-2006 neurosurgeon independent medical examiners ("IMEs") that McDonald had reached Maximum Medical Improvement ("MMI") and was limited to light or medium-light duty as a result of the car accident. Dr. Hand found it "difficult to believe" the contrary opinion expressed by Dr. Margolis in his May 2007 Physical Examination report. Dr. Hand did not reference McDonald's use of Avinza.

In response to the denial of certification, McDonald sent a letter to MPOETC on October 22, 2007 in which he sought reconsideration of its decision, offered to provide updated medical records and/or undergo an IME at his own cost, and inquired into his right to a hearing. On November 26, 2007, an attorney from the Office of Chief Counsel to the PSP notified McDonald that he had no right to a hearing.

On January 9, 2008, as a result of MPOETC's refusal to provide certification under Act 120, the Borough demoted McDonald to the position of Chief of Operations, a position with lower pay and benefits. The Borough suggested this arrangement because it wanted McDonald to remain in the job. The parties re-negotiated a two-year contract under which McDonald performed very similar day-to-day activities at the police department.

On March 12, 2008, Charles H. Ziegler, D.O., performed a Functional Performance Evaluation and opined that McDonald was capable of performing the essential demands of the Police Chief job. Dr. Ziegler noted the prior surgeries and some residual radiculopathy in the left leg, but concluded that McDonald had "no functional limitations." Dr. Ziegler did not address the use of Avinza. McDonald forwarded the IME to Beverly Young on April 12, 2008. On April 17, 2008, Dr. Uran performed another Psychological Examination and prepared a Report. Dr. Uran opined that McDonald was psychologically capable of exercising appropriate judgment and restraint to be certified as a police officer. Dr. Uran further stated: "There is no indication that would preclude him from execution of duties as a police officer or engaging in lethal weapon usage." She averred that her report was submitted "with the highest degree of psychological certainty."

On June 9, 2008, Dr. Hand sent another memorandum to Judy Herr which addressed Dr. Ziegler's medical opinion and explained the basis for Dr. Hand's continued belief that McDonald was not fit to serve as a police officer. Plaintiff's Exhibit 23. For the purpose of summary judgment, the Court will assume that Dr. Hand misinterpreted Dr. Ziegler's evaluation of McDonald's physical capabilities. In addition, Dr. Hand continued to emphasize the lack of documentation to explain ...


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