United States District Court, W.D. Pennsylvania
BRIAN P. HENDERSON, Plaintiff,
BOROUGH OF BALDWIN, Defendant.
MEMORANDUM AND ORDER
BISSOON, UNITED STATES DISTRICT JUDGE.
before the Court is Defendant Borough of Baldwin
(“Defendant” or “Borough”)'s
Motion for Summary Judgment (Doc. 36),
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. For the reasons that follow, Defendant's
Motion for Summary Judgment (Doc. 36) will
Brian Henderson (“Plaintiff” or
“Henderson”) has been a police officer with the
Borough since January 2002. Def's Statement of Undisputed
Facts (Doc. 37) ¶ 11. Plaintiff applied for a lieutenant
position in 2011. Id. ¶ 16. In August 2011, the
Baldwin Borough Civil Service Commission certified the
eligibility list of officers who could fill a lieutenant
position. Id. ¶ 17. Plaintiff was third on the
list, with Craig Cavlovic (“Cavlovic”) and
Matthew Kearns (“Kearns”), scoring higher than
Plaintiff. Id. On September 20, 2011, Borough
Council promoted Cavlovic and Kearns, the two officers who
scored higher than Plaintiff, to lieutenant. Id.
¶ 18. Following Cavlovic and Kearns's promotions to
lieutenant, by letter dated November 23, 2011, Plaintiff
questioned why the promotion process did not comply with the
Civil Service requirement that a medical and psychological
examination be conducted. Id. ¶ 19. In his
November 23, 2011 letter, Plaintiff stated that he
“can't help but feel [his] candidacy for Lieutenant
had been predetermined, perhaps due to [his] position as the
Union President.” Id. ¶ 20.
December 6, 2011, Borough Council unanimously passed a motion
to rescind the promotions of Cavlovic and Kearns “and
to have the reinstatement of these positions contingent on
the passing of the medical and psychological evaluations as
per the Civil Service Regulations.” Id. ¶
21. On December 7, 2011, in his role as union president,
Plaintiff requested “written clarification of where the
legal authority came from to remove [Cavlovic and Kearns from
their supervisory positions] without due process.”
Id. ¶ 22. By letter dated December 7, 2011,
Borough Manager John Barrett (“Barrett”)
responded to Plaintiff and provided an explanation of the
Borough's actions regarding the promotions. Id.
¶ 23. In that letter, Barrett informed Plaintiff that
the Borough had concluded that the officers in question had
not completed a medical examination and psychological
evaluation as required in the Civil Service Regulations.
Id. ¶ 24. Barrett further stated that these
conclusions “have caused the Borough to take further
action to properly promote, ” including “the
‘temporary rescinding' of the promotional
appointments, ” which will be reinstated contingent
upon the satisfactory completion of both a medical and
psychological evaluation.” Id. ¶ 25.
separate letter to Plaintiff also dated December 7, 2011,
Barrett stated that the promotions were not compliant with
the Civil Service Regulation due to the lack of examinations
and had been temporarily rescinded. Id. ¶ 26.
In this letter, Barrett further stated that the Borough
wished to schedule the examinations for “all eligible
applicants” and that if Plaintiff would like to be
considered eligible for the promotion, he should advise the
Chief of Police of his “decision to participate in the
medical examination and psychological evaluation.”
Id. ¶ 27. Plaintiff understood that Cavlovic
and Kearns remained lieutenants in an acting capacity and
would be placed “back in the same position” if
they passed the physical and psychological examinations.
Id. ¶ 28. As such, Plaintiff did not have a
reasonable expectation that he would be promoted if Cavlovic
and Kearns passed the medical examination and psychological
evaluation unless “perhaps down the road . . . another
slot maybe opened up.” Id. ¶ 29.
December 8, 2011, Plaintiff informed Barrett that he
“would very much like to take the physical and
psychological exams for the position of lieutenant” but
questioned whether failing either would jeopardize his
current position as a Borough police officer. Id.
¶ 30. Plaintiff chose to proceed with the physical
examination and psychological evaluation in case Cavlovic or
Kearns did not pass one of the tests or another lieutenant
position became available during the pendency of the Civil
Service list. Id. ¶ 31. Plaintiff had some
doubt about whether Cavlovic and Kearns would pass both
tests. Id. ¶ 32. Plaintiff had no reason to
think he would not pass either the physical examination or
the psychological evaluation. Id. ¶ 33. If
another lieutenant position opened, Plaintiff believed he
would not have to take the physical examination or
psychological evaluation again. Id. ¶ 34.
physical examination was conducted on December 13, 2011.
Id. ¶ 45. The report of the physical
examination was faxed to John Barrett on December 13, 2011.
Id. ¶ 46. Plaintiff's psychological
evaluation was conducted on January 3, 2012. Id.
¶ 47. Plaintiff passed both the psychological evaluation
and the physical examination. Id. ¶ 48.
Plaintiff claims that Barrett's receipt of the results of
the physical examination violated the ADA's
confidentiality provisions because Barrett is not
Plaintiff's “immediate supervisor.”
Id. ¶ 38. Plaintiff admitted, however, that it
would have been necessary for Barrett to receive the results
so that he could inform Borough Council of the candidates who
remained eligible for promotion. Id. ¶ 39.
Plaintiff also suggests that other staff may have seen the
results of his medical examination, as the fax machine to
which it was transmitted was not located in a private area.
Plaintiff believes he had “conversations at the
time” about a concern “that possibly one or more
of the clerks or secretaries being able to see [the
results]” with other police officers, but could not
recall which officers. Id. ¶ 41. Plaintiff
never received any information that, in fact, any
unauthorized person viewed the results of his physical
examination or psychological evaluation. Id. ¶
Plaintiff, both Cavlovic and Kearns passed both the physical
examination and psychological evaluation. Id. ¶
35. On January 17, 2012, Cavlovic and Kearns were again
promoted to the rank of lieutenant. Id. ¶ 36.
Thereafter, Plaintiff brought this lawsuit, seeking: (a)
“[m]onetary damages in excess of $75, 000;” (b)
“[p]romotion to the rank of lieutenant and retroactive
back pay commensurate with the rank;” (c) costs,
interest, and attorney fees; and (d) “[p]unitive and/or
exemplary damages.” Id. ¶ 51. In response
to the Borough's Interrogatory No. 6, requesting that
Plaintiff “[i]dentify and describe any and all damages,
benefits, other expenses and/or economic damages for which
you are seeking to recover from this lawsuit, ”
Plaintiff wrote “promotion and back pay.”
(Exhibit A to Appendix). Id. ¶ 52. In response
to the Borough's Interrogatory No. 7, requesting that
Plaintiff “[i]dentify and describe the ‘great
embarrassment' suffered by Plaintiff as alleged in
Paragraph 31 of the Amended Complaint, ” Plaintiff
wrote “embarrassment-wise, I was not promoted, but
still subjected to psychological and physical testing similar
to my peers who were promoted.” Id. ¶ 53.
Plaintiff testified that the “great
embarrassment” he suffered was because he “had
gone through the same process as my peers, but I wasn't
promoted.” Id. ¶ 54. Plaintiff did not
receive any medical treatment in connection with his claims
or alleged damages. Id. ¶ 55.
STANDARD OF REVIEW
judgment is appropriate if the moving party establishes
“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). A dispute is
“genuine” only if there is a sufficient
evidentiary basis for a reasonable jury to find for the
non-moving party, and a fact is “material” only
if it might affect the outcome of the action under the
governing law. See Sovereign Bank v. BJ's Wholesale
Club, Inc., 533 F.3d 162, 172 (3d Cir. 2008) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). In ruling on a motion for summary judgment, the
Court must view the facts in the light most favorable to the
non-moving party. Merkle v. Upper Dublin Sch. Dist.,
211 F.3d 782, 788 (3d Cir. 2000).
Plaintiff's Claim Arising from the Invalid Medical