The opinion of the court was delivered by: Yohn, J.
Shamus Reilly brings this action against Upper Darby Township ("Upper Darby"), alleging discrimination in violation of the Americans with Disabilities Act of 1990 (the "ADA"), 42 U.S.C. §§ 12101 et seq., and the Pennsylvania Human Relations Act (the "PHRA"), 43 Pa. Stat. Ann. §§ 951 et seq. Reilly, a former Upper Darby police officer, suffers from a progressive degenerative neurological disease, and he claims that Upper Darby discriminated against him by failing to provide a reasonable accommodation for his disability and instead terminating him. Upper Darby has filed a motion for summary judgment under Federal Rule of Civil Procedure 56, arguing that Reilly's claims are time-barred and that, in any event, his claims must fail as a matter of law. For the reasons set forth below, I will deny Upper Darby's motion for summary judgment.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY*fn1
Reilly was hired as a police officer by Upper Darby in October 1997 and was classified as a patrol officer throughout his course of employment. (Def.'s Statement of Undisputed Facts ("Def.'s Facts") ¶¶ 1--3.)
In 2001 Reilly was diagnosed with inclusion body myositis, a slowly progressive degenerative neurological disease that has caused weakness in his legs. (Id. ¶ 4; Pl.'s Counterstatement of Disputed and Undisputed Material Facts ("Pl.'s Facts") ¶¶ 4--5.) As a result of this condition, Reilly has difficulty running, climbing steps without assistance, and getting up from a seated position. (Pl.'s Facts. ¶ 6.) Reilly did not initially inform anyone in the police department of his diagnosis and continued to work as a patrol officer (Def.'s Facts ¶ 6.).
By 2007 Reilly's fellow officers noticed that he had difficulty climbing steps and that he fell "once in while," and he told them that he had a "leg problem." (Def.'s Mot. for Summ. J. Ex. 16, Dep. of Shamus Sean Reilly (Mar. 4, 2011) ("Reilly Dep.") at 25:6--23.) In June 2007 Reilly was called to a meeting with Captain Anthony Paparo, as well as his immediate supervisors, Sergeant Donald Peterson and Lieutenant John Burke, to address concerns about his physical ability to serve on patrol. (Pl.'s Facts ¶¶ 10--11.) Reilly told them about his medical condition, and he was informed that he was being taken off patrol duty and placed in an "alternate duty" position in the control room.*fn2 (Id. ¶¶ 12--14.)
Reilly underwent a "fitness for duty" evaluation on August 3, 2007, at the request of Upper Darby. (Pl.'s Facts ¶ 21.) Dr. Harvey Bishow, an orthopedic surgeon selected by Upper Darby for this purpose, reported that he "[did] not feel that [Reilly] is capable of performing the requirements specific to the duties of a police officer for the Upper Darby Township Police Department" but that Reilly was able to work in the "light duty" position to which he had recently been assigned. (Def.'s Facts ¶ 15; Def.'s Mot. for Summ. J. Ex. 8, at 2.)
In preparation for a scheduled meeting with Thomas J. Judge, Jr., Upper Darby's chief administrative officer, Reilly drafted a list of alternative jobs that he believed he could perform, including working as a property-room officer; assisting in the Investigations Division by photographing evidence, processing crime scenes, delivering evidence to the state police laboratory, and preparing criminal complaints and affidavits; assisting in the Administration/Training Division by assisting in fleet maintenance, entering incident reports, and assisting in firearms and CPR training; and working in the operations (or control) room. (Def.'s Mot. for Summ. J. Ex. 7.)
On September 18, 2007, Reilly met with Superintendent Chitwood, who told him that he would be placed on non-service-connected disability*fn3 sometime in October in light of Dr. Bishow's medical report. (Def.'s Facts ¶ 26.) And on October 4, 2007, Reilly was told that his employment was being terminated because of his inability to perform the duties of a police officer. (Pl.'s Facts ¶ 34; Def.'s Mot. for Summ. J. Ex. 17, Dep. of Michael Chitwood (Mar. 24, 2011) ("Chitwood Dep.") at 34:4--9.) Reilly was told that he was being placed on non-service- connected disability and that he would be permitted to first use any accrued unused sick and vacation time until all his paid time off was exhausted. (Def.'s Facts ¶ 21; Pl.'s Facts ¶ 34.) Reilly's vacation and sick leave was exhausted on September 25, 2008. Upper Darby allowed other police officers to donate their unused sick leave to Reilly, and this donated leave was exhausted on October 24, 2008. (Def.'s Mot. for Summ. J. Ex. 15.)
Meanwhile, a representative of Reilly's union, Delaware County Lodge 27, Fraternal Order of Police, filed a grievance on Reilly's behalf on November 1, 2007, claiming that the action taken by Upper Darby violated the collective bargaining agreement. (Pl.'s Facts ¶ 35; Def.'s Mot. for Summ. J. Ex. 3.) Superintendent Chitwood denied the grievance on November 15, 2007 (Def.'s Mot. for Summ. J. Ex. 4), and an arbitrator ultimately concluded, on October 14, 2008, that Upper Darby had not violated the collective bargaining agreement (id. Ex. 14).
Reilly filed a charge with the Equal Employment Opportunity Commission (the "EEOC") on January 14, 2009, alleging that Upper Darby had violated the ADA; Reilly cross-filed the charge with the Pennsylvania Human Relations Commission (the "PHRC"), alleging discrimination under the PHRA. (Def.'s Mot. for Summ. J. Ex. 13.) In a notice dated February 27, 2009, the EEOC dismissed the charge as untimely and notified Reilly of his right to sue. (Id. Ex. 12.)
Reilly filed this action against Upper Darby on June 1, 2009, and filed an amended complaint on July 23, 2009, alleging discrimination in violation of the ADA (count I) and the PHRA (count II). He claims that Upper Darby discriminated against him by failing to provide a reasonable accommodation for his disability and instead terminating him. Upper Darby moved to dismiss Reilly's amended complaint, arguing (1) that Reilly did not timely file his charge of discrimination with the EEOC and therefore failed to meet the prerequisites for filing suit under the ADA, and (2) that Reilly filed this suit before the expiration of the one-year conciliation period required by the PHRA. Reilly argued in response that the time for him to file his charge with the EEOC should be tolled because he never saw notices posted about his rights under the ADA. Because I concluded that Reilly should have the opportunity to conduct discovery to demonstrate that he is entitled to equitable tolling, I denied Upper Darby's motion to dismiss Reilly's ADA claim. But because Reilly did not dispute that his PHRA claim was premature, I dismissed that claim without prejudice to his right to reinstate it if his PHRA claim was not resolved within the one-year conciliation period. See Reilly v. Upper Darby Township, No. 09-2465, 2010 WL 55296 (E.D. Pa. Jan. 6, 2010). Reilly filed a second amended complaint on February 2, 2010, after the one-year conciliation period expired, reinstating his disability-discrimination claim under the PHRA.
After discovery, Upper Darby filed this motion for summary judgment.
A motion for summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
The moving party bears the initial burden of showing that there is no genuine issue of material fact and that it is entitled to relief. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its initial burden, the nonmoving party must present "specific facts showing that there is a genuine issue for trial," Matsushita, 475 U.S. at 587 (internal quotation marks omitted), offering concrete evidence supporting each essential element of its claim, see Celotex, 477 U.S. at 322--23. The nonmoving party must show more than "[t]he mere existence of a scintilla of evidence" for elements on which it bears the burden of production, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986), and may not "rely merely upon bare assertions, conclusory allegations or suspicions," Fireman's Ins. Co. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). By the same token, "it is inappropriate to grant summary judgment in favor of a moving party who bears the burden of proof at trial unless a reasonable juror would be compelled to find its way on the facts needed to rule in its favor on the law." El v. SEPTA, 479 F.3d 232, 238 (3d Cir. 2007) (footnote omitted).
When evaluating a motion for summary judgment, the court "is not to weigh the evidence or make credibility determinations." Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1230 (3d Cir. 1993). "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255. "Summary judgment may not be granted . . . if there is a disagreement over what inferences can be reasonably drawn from the facts even if the facts are undisputed." Ideal Dairy Farms, Inc. v. John Labatt, Ltd., 90 F.3d 737, 744 (3d Cir. 1996) (internal quotation marks omitted). "[A]n inference based upon a speculation or conjecture," however, "does not create a material factual dispute sufficient to defeat entry of summary judgment." Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n.12 (3d Cir. 1990).
Upper Darby argues that Reilly's claims under the ADA and the PHRA are time-barred and that, in any event, his claims must fail as a matter of law. Because courts "generally interpret the PHRA in accord with its federal counterparts," and the Third Circuit has thus recognized that it is proper to treat ADA and PHRA claims collectively, I will reference only the ADA in this discussion. Kelly v. Drexel Univ., 94 ...