The opinion of the court was delivered by: McVerry, J.
MEMORANDUM OPINION AND ORDER OF COURT
Presently before the Court on remand is DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Doc. No. 46). The Court's Memorandum Opinion and Order of April 1, 2011, which granted the motion, was affirmed in part and vacated in part by the United States Court of Appeals for the Third Circuit in a non-precedential opinion dated June 22, 2012. Subsequently, the remaining issues have been additionally briefed by counsel (Document Nos. 69 and 70). Further, the United States has filed a Notice of Intervention with an attached memorandum of law. The summary judgment motion is now ripe for disposition.
Factual and Procedural Background
The factual background was set forth in the Court's previous Memorandum Opinion, to which neither party has objected. For convenience, it is repeated herein.
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 Pennsylvania municipal police department, the officer must be certified by MPOETC pursuant to Pennsylvania Municipal Police Education and Training Act ("Act 120"), 53 Pa.C.S.A. § 2161 et seq. Defendant Pawlowski 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 on a daily basis with a staff of fifteen people. MPOETC administrative officer Beverly Young, certification unit supervisor Judy Herr and application processor Erica Aikens were 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 Plaintiff's employment with the state Attorney General 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.*fn1 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 a stable dosage of 60 mg per day. McDonald testified that, with Avinza, he has no physical limitations that would impede him from performing the duties of a police officer. He can bend, handcuff a suspect who is lying on the ground, lift and/or 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, McDonald 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. 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 included 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 June 5, 2007
Psychological Report from Julie Uran, Ph.D., who 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 his 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 denied certification of McDonald. 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 incapable of performing 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 injuries from his 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 specifically 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 on 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 at the request of the Borough 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 at MPOETC on April 12, 2008. On April 17, 2008, Dr. Uran performed another Psychological Examination and prepared a Report in which she 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 how McDonald's condition could have substantially improved since 2006, when three IME's had opined that he was disabled.
On July 8, 2008, MPOETC selected Dr. John Levy to perform another IME to evaluate McDonald's physical capabilities. On August 13, 2008, after reviewing medical records and performing a physical examination, Dr. Levy opined that McDonald was "capable of tolerating a full duty position as police chief as well as performing the essential tasks of a police officer." (Plaintiff's Exhibit 5.) Dr. Levy then stated:
My only concern is the patient does take oral narcotics on a daily basis. However, I will state that by report he has not taken increasing doses. He has taken a stable amount for the past year. In my opinion, I believe that he would be capable of performing his duties, taking narcotics on a daily basis, as long as this is supervised by a specialized pain management physician, such as Dr. Weidner, who currently takes care of Mr. McDonald. I am unaware of the police policy referable to the use of prescribed narcotics in the workplace. If in fact they are allowed, I believe that Mr. McDonald is capable of reentering the workplace as a police officer full time, full duty without restrictions. If there is any concern in terms of his mental abilities referable to the use of narcotics, certainly cognitive testing through psychological testing could be considered. Based on his presentation today, my opinion is that Mr. McDonald is fit for duty as the police chief of Ellwood City Police Department and capable of performing all the essential tasks of a police officer.
On September 2, 2008, Dr. Hand sent another memorandum to Beverly Young at MPOETC, which expressed his analysis of Dr. Levy's IME.*fn2 (Plaintiff's Exhibit 4.) Dr. Hand acknowledged that Dr. Levy opined that McDonald was fit for duty, but for the first time, focused on the use of Avinza. Dr. Hand recognized that McDonald was under the care of a pain control physician and that there was no evidence that he was abusing Avinza. On the other hand, Dr. Hand was concerned that Avinza was a long acting oral form of morphine with numerous reported potential side effects. Dr. Hand stated that if a member of the PSP "were to take this drug for a legitimate reason they would be excluded from any critical duty and placed on medically limited duty until such time as they no longer used this drug." Dr. Hand believed that chronic use of Avinza could result in a cognitive deficit and he was "not able to say that Mr. McDonald would be able to function in the capacity of a certified municipal police officer who is engaged in the day to day tasks of law enforcement in which coherent, quick and precise decision making is paramount." In summary, Dr. Hand opined:
I am mightily resistant (emphasis in original) to the assertion, or belief, that they would be able to respond appropriately in situations that require split second thinking and instantaneous action to protect themselves and the public. I believe it to be imprudent to allow Mr. McDonald to be certified as a municipal police officer while using this medication.
Dr. Hand did not know whether McDonald actually suffered from any of the potential side effects of Avinza and he acknowledged that no physical or mental side effects had been reported. Nevertheless, as set forth in a letter dated October 14, 2008, MPOETC continued to withhold Act 120 certification "because of his daily use of Avinza, a prescription narcotic, and its potential side effects . . . ." Counsel for McDonald made another request for a hearing on October 28, 2008. On October 30, 2008, Lisa A. Weidner, M.D., opined that McDonald had been stable on his present medications, had demonstrated no side effects from the Avinza and was "neurologically intact and functioning fully cognitively." Dr. Weidner had no concerns that McDonald would have any limitations due to his chronic pain or the medications prescribed for treating that pain. On November 14, 2008, MPOETC again advised counsel that McDonald was not entitled to a hearing.
McDonald's contract as Chief of Operations with the Borough expired on
December 31, 2008. Pursuant to a settlement agreement,*fn3
McDonald remained on a "leave of absence" for the entire 2009
calendar year. McDonald is now employed doing investigative services
for the Travelers Group.
The Complaint in this case was filed by Plaintiff on April 15, 2009 and asserted the following claims: (1) a violation of § 504 of the Rehabilitation Act by the Pennsylvania State Police ("PSP"); (2) a violation of Title II of the Americans With Disabilities Act ("ADA") by Defendant Pawlowski in his official capacity as Commissioner of the PSP, for which McDonald seeks declaratory and injunctive relief; and (3) a Due Process violation by Defendant Gallaher in his individual capacity. Plaintiff seeks declaratory relief; compensatory damages at Count 1; injunctive relief at Count 2 in the form of an Order that Defendants certify Plaintiff as a police officer; and attorneys fees and costs.
Defendants seek summary judgment on all counts. In its April 1, 2011 Memorandum Opinion, the Court granted summary judgment on the ADA and Rehabilitation Act claims based on Lekich v. Pawlowski, 361 Fed. Appx. 322 (3d Cir. January 15, 2010) (non-precedential), in which the United States Court of Appeals for the Third Circuit had recently rejected very similar ADA and Rehabilitation Act claims and held that MPOETC is not a "covered entity." The Court also granted summary judgment on McDonald's due process claim against Gallaher. On appeal, the United States Court of Appeals for the Third Circuit held that this Court erred in disposing of the ADA and Rehabilitation Act claims on the basis of the holding in Lekich that Defendants were not "covered entities" *fn4 and pointed out that McDonald's claim was based on Title II of the ADA, which prohibits discrimination by "public entities." The case was remanded for this Court to address Defendants' other defenses to the ADA and Rehabilitation Act claims. The Court of Appeals further instructed that it would be inappropriate for this Court to decide whether the abrogation of sovereign immunity in Title II of the ADA was constitutional "unless and until it is decided that McDonald has made out a distinct Title II claim." Opinion at 6 n.1. The Court of Appeals affirmed this Court's decision as to the due process claim.
Federal Rule of Civil Procedure 56 governs summary judgment. In interpreting Rule 56, the United States Supreme Court has stated:
The plain language . . . mandates entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to material fact," since a complete failure of proof ...