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Charles Dawson v. Darby Borough

January 13, 2012

CHARLES DAWSON
v.
DARBY BOROUGH



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

MEMORANDUM

Presently before the Court is Defendant Darby Borough's Motion for Summary Judgment. (ECF No. 11.) For the following reasons, the Motion will be granted.

I. BACKGROUND

Plaintiff Charles Dawson is a high school graduate. (Dawson Dep. 66, Pl.'s Resp. Ex. A, ECF No. 12.) Since graduating from high school, Plaintiff has held several manual labor jobs, including working as a detail person for a car dealership, a security person for a department store, a shipping receiver, a forklift operator and a laborer. (Id. at 66-67.) Plaintiff graduated from the Police Academy in 1993. (Id. at 67.) In 1994, Plaintiff joined the Darby Borough Police Department as a police officer. (Id.) Plaintiff has been a member of Lodge No. 27 since 1998, the year he became a full-time police officer. (Id. at 6.) Other than his training at the Police Academy, Plaintiff has had no formal training or education since graduating from high school. (Id. at 66, 68.)

In 2001, Plaintiff's vision became blurry while operating his police vehicle. Plaintiff pulled over and sat in the vehicle until he regained clear vision. He then returned to the police station, where he announced that he was experiencing vision problems. Plaintiff was subsequently admitted to a hospital where he was diagnosed with diabetes. (Id. at 72-74.) From 2001 to 2007, Plaintiff did not experience problems in performing his job as a police officer as a result of the diabetes, although he experienced some symptoms stemming from the disease. (Id. at 74.)

In August 2007, Plaintiff became sick and was admitted to a hospital where he remained in a coma for five days. His illness was a result of contracting Rocky Mountain Fever and his underlying condition of diabetes. (Id. at 10.) Defendant knew, prior to August 2007, that Plaintiff suffered from diabetes. (Id. at 17.)

Plaintiff returned to work in January 2008. (Id. at 10-11.) He was still recovering from the illness and getting his strength back. (Id. at 11.) He had his diabetes "under control" by taking medication, and was placed on desk duty, rather than his normal duties as a patrol officer. (Id. at 11-13.)*fn1 While on desk duty, Plaintiff worked forty hours per week, did not have any problems with the work and did not have any disciplinary issues. (Dawson Dep. 14-15, 20.)*fn2

Plaintiff returned to patrol duty in June 2008. (Dawson Dep. 14.) Upon his return, Plaintiff had no problem controlling his diabetes with medication, although he did have physical symptoms stemming from diabetes, such as "little tingles in [his] fingers." (Id. at 17, 19.) While on patrol duty, Plaintiff was disciplined on two occasions. (Id. at 22.)

The first occasion occurred on June 24, 2008. (July 11 Reprim. Ltr, Def.'s Mot. Ex. H.) Plaintiff was assisting another officer in pursuing an ATV. While on his way to assist the officer, Plaintiff entered an intersection, and the ATV darted out in front of him. Plaintiff slammed on his brakes to avoid striking the ATV. As Plaintiff slid through the intersection, his vehicle was struck by the police vehicle that was pursuing the ATV. (Dawson Dep. 22-23.) No one involved in the collision was seriously injured. (Dawson Dep. 24; Smythe Dep. 21.) Plaintiff did not lose consciousness and was not incoherent at the time of this incident. (Gevers Ltr. 2, Def.'s Mot. Ex. O.)*fn3

The second occasion arose on July 25, 2008, when Plaintiff was transporting a prisoner to the police station. (Gevers Ltr. 2; Dawson Dep. 22.) Plaintiff began having severe pain in his sinus area. (Gevers Ltr. 2.) As Plaintiff approached an intersection, another vehicle came from the opposite direction and "was so far over that [Plaintiff] moved over and . . . tapped the mirror on the car that was parked on the right-hand side." (Dawson Dep. 22.)*fn4 Later that day, Plaintiff was taken to a hospital because the pain in his sinus area was intense. He was admitted for a tooth abscess with an elevated blood sugar level. (Gevers Ltr. 2.)

Plaintiff received a written reprimand from his supervisor, Lieutenant Guy, for each of these two incidents. (Dawson Dep. 18, 25-26; see also July 11 Reprim. Ltr.; July 25 Reprim. Ltr., Def.'s Mot. Ex. I.) With respect to the first incident, the July 11, 2008 reprimand letter stated that "[i]t has been determined that the resulting accident which [the pursuing officer] and [Plaintiff] were involved in was precipitated by [Plaintiff] not giving [the other officer] a safe distance to travel." (July 11 Reprim. Ltr.) The letter noted Plaintiff's previous record of safe driving and requested that Plaintiff attend an eight-hour course on driving. (Id.) With respect to the second incident, the July 25, 2008 reprimand letter stated that Plaintiff's "conduct is unacceptable and considering [he] just finished drivers training for a past accident, harsher correction methods will be employed if it happens again." (July 25 Reprim. Ltr.)

As a result of his hospitalization on July 25, 2008, Plaintiff missed one day of work. (Dawson Dep. 28.) After his release from the hospital, Plaintiff went on a previously-scheduled two-week vacation. (Id. at 29, 32.) At this point, Defendant became concerned about Plaintiff's health and its impact on his participation as a patrol officer. (Guy Dep. 13-14.)

When Plaintiff returned to work on August 5, 2008, his supervisor at the time, Peter Ray, informed him that he could not return to work until he brought in a doctor's note. (Dawson Dep. 26, 29, 33.) Plaintiff provided to Defendant a note from his doctor within a week of the request. (Id. at 29.) The note is on the letterhead of, and signed by, Dr. Mario Littman, M.D., F.A.C.P., the doctor who treated Plaintiff for the tooth abscess. (Dawson Dep. 31; see also Dr.'s Note, Pl.'s Resp. Ex. B.) The note is not dated and states that "Charles Dawson was hospitalized on 07/25/08-07/27/08 at Mercy Fitzgerald Hospital for an abscess of the upper gum. Dawson is able to return back to work." (Dr.'s Note.) After Plaintiff provided the note to Defendant, he was still not permitted to return to work. (Dawson Dep. 34.) When Plaintiff asked Lieutenant Guy why he was not allowed to return to work, Guy told him not to worry and that he would "take care of it." (Id. at 35.) When Plaintiff asked Corporal Baker the same question, Baker responded that he did not know anything about it. (Id. at 36.) In August 2008, Plaintiff's employment with the Darby Borough Police Department ended. (Id. at 20-21).

Sometime before December 2008, Plaintiff filed a grievance with the union with regard to his not being permitted to return to work. (Id. at 38-41.) In December 2008, the union representative, Tim Baker, set up a meeting with Plaintiff, Skip Miller, the attorney for the Fraternal Order of Police, and the union president at the time, to discuss Plaintiff's grievance. (Id. at 38.) At the meeting, the individuals discussed Plaintiff taking a deal in which he would receive a non-service-connected disability pension. (Id. at 40-41.)*fn5 The pension would provide Plaintiff with 50 percent of his wages and 100 percent of his medical benefits. (Dawson Dep. 42; see also Pension Plan, Def.'s Mot. Ex. E.) In response to this offer, Plaintiff asked, "What does that have to do with me coming back to work?" (Dawson Dep. 43.) It was suggested to Plaintiff that he take the deal. (Id.) After 45 minutes to an hour of discussion, Plaintiff agreed to take the non-service-connected disability pension. (Id. at 44.) When Plaintiff left the building and walked to his car, he did not "feel right" about taking the deal. As a result, he returned to the office and spoke to Miller in a one-on-one conversation. He asked Miller again why he was not permitted to come back to work. Miller responded that it was because of his diabetes. (Id.)

Sometime before December 18, 2008, a meeting was held between Mark Possenti, the Manager/Secretary of Defendant, Arthur J. Gallagher, Defendant's insurance broker, Raymond Santarelli, Defendant's solicitor, and the individual who runs Defendant's pension plan (collectively, the "Committee"). (Possenti Dep. 10-13, Pl.'s Resp. Ex. D.)*fn6 At the meeting, the Committee discussed Plaintiff's performance as a police officer and whether he would be eligible for a non-service-connected disability pension. (Possenti Dep. 11.) Among the topics discussed was Plaintiff's diabetes. (Id. at 12-13.)*fn7

The decision to terminate a police officer's employment can only be made by vote of the Borough Council. (Possenti Dep. 14.) By letter of December 18, 2008 from Possenti, Plaintiff's employment with the Darby Borough Police Department was terminated. The letter stated:

Our review of your current medical condition indicates that you are not capable of performing the full scope of duties as a sworn Police Officer. In addition, your ...


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