United States District Court, M.D. Pennsylvania
MALACHY E. MANNION, UNITED STATES DISTRICT JUDGE
before the court is the motion for summary judgment, pursuant
to Fed.R.Civ.P. 56, filed by defendants Municipality of
Kingston (“Kingston”)and James Haggerty, former
Mayor of Kingston, (Doc. 15), with respect to the common law
claim and the federal claims against them in the amended
complaint of plaintiff George Kocher. (Doc. 1-1 at 13-19).
The plaintiff asserts a common law claim of retaliation
against defendants with respect to the filing of his
workers' compensation claim. The plaintiff brings federal
claims, under the Americans with Disabilities Act,
(“ADA”), alleging disability discrimination and
retaliation for requesting a reasonable accommodation after
his knee injury which occurred during his employment as a
police officer with Kingston. Further, the plaintiff asserts
disability discrimination and retaliation claims under the
Pennsylvania Human Relations Act. Defendants contend that
plaintiff failed to establish that he has a disability as
defined under the ADA and that he failed to establish a prima
face case of retaliation. Defendants also contend that
plaintiff cannot show that their proffered reasons for his
failure to get a promotion to detective were a pretext for
discrimination due to any disability or for retaliation.
upon the court's review of the motion and related
materials, defendants' motion for summary judgment will
be GRANTED with respect to the
plaintiff's federal claims, Count II. The court will
decline to exercise supplemental jurisdiction over the
plaintiff's common law retaliation claim, Count I.
over 12 years, the plaintiff has been employed as a police
officer for the Municipality of Kingston. On June 8, 2015,
plaintiff was injured while working as a senior patrolman
when he twisted his left knee while exiting his patrol car.
Plaintiff went to MedExpress, a workers' compensation
panel clinic, and he was cleared to return to duty, with
restrictions on kneeling and bending.
15, 2015, plaintiff had a follow-up visit with MedExpress.
Following this visit, MedExpress sent Kingston a medical note
stating that plaintiff was released to full duty work with no
then returned to full-time, full-duty work through July 14,
2015, when he returned to MedExpress regarding his left knee.
He was placed on modified work duty for two weeks, until his
follow-up appointment. Soon thereafter, plaintiff advised
Kingston that he suffered a torn meniscus from his June
8th injury, and that he was having surgery in
August on his left knee, by Dr. Raklewicz of Orthopaedic
Consultants, to repair his meniscus tear. Police Chief Mike
Krzywicki requested plaintiff to periodically check in with
Kingston to keep it apprised of his medical status.
had surgery on August 19, 2015. Dr. Raklewicz did not have to
remove the meniscus in plaintiff's left knee since it was
not torn to the extent originally thought. After his surgery,
plaintiff remained out of work until his follow-up visit with
Dr. Raklewicz on September 21, 2015.
in August of 2015, plaintiff filed a claim for workers'
compensation benefits, and it was approved. As such,
plaintiff received compensation at all times when he was out
of work through Heart and Lung benefits under Pennsylvania
September 21, 2015 appointment, Dr. Raklewicz gave plaintiff
a note which excused him from working until his next
follow-up appointment on October 12, 2015, and plaintiff sent
the note to Kingston.
October of 2015, plaintiff was contacted on a number of
occasions by his superior, Police Chief Mike Krzywicki, and
by Kingston employee Sondra Ravello about his medical
condition and they inquired when he could return to work. He
stated that the Chief called him about twice a week and after
his doctor appointments and, that Ravello called him four
times. Plaintiff testified that the Chief wanted him to
return to work on light duty but he told the Chief that his
personal doctor, Dr. William Krywicki, had not released him
to return to work. Plaintiff then asked Chief Krzywicki to
stop contacting him about when he could go back to work. He
did not receive any further calls about this matter.
is no evidence that then Mayor James Haggerty, was involved
with either the Chief's or Kingston's request that
plaintiff return to light duty work or that he tried to get a
release to perform light duty work from Dr. Raklewicz. Nor is
there any evidence that Haggerty directed either Chief
Krzywicki or Ravello to contact him about the plaintiff's
returning to work on light duty. In fact, there is no
evidence that Haggerty was even aware that the Chief and
Ravello were contacting plaintiff.
his October 12, 2015 appointment, Dr. Raklewicz medically
cleared plaintiff to return to work “full duty/no
restrictions.” Kingston officials then attempted to
contact plaintiff to schedule his return to work. However,
the Kingston officials were unable to contact plaintiff and
he did not return their phone calls.
did not return to work after Dr. Raklewicz released him to
full duty work. Rather, plaintiff went to Dr. James Gallasso
for a second opinion regarding his left knee. On October 14,
2015, Dr. Gallasso issued a note stating that plaintiff was
not cleared to return to work for Kingston for another four
disciplinary action was taken against plaintiff by Kingston
for not returning to work as permitted by Dr. Raklewicz, and
it allowed plaintiff to remain out of work until his
follow-up appointment with Dr. Gallasso.
November 13, 2015, Kingston sent a modified duty description
regarding plaintiff to his personal physician, Dr. Krywicki,
for review in order to determine if plaintiff could be
released to return to duty with modified restrictions. Dr.
Krywicki refused to release plaintiff to return to work in
any capacity and requested that Kingston excuse him from work
until December 14, 2015. On January 20, 2016, Dr. Krywicki
issued a Return to Duty Note releasing plaintiff to full duty
workers' compensation carrier then scheduled plaintiff
for an Independent Medical Examination (“IME”).
Dr. David Cooper performed the IME on January 26, 2016, and
concluded as follows: “I certainly agree with his other
treating doctors that he is able to return to work as a
police officer full duty without restrictions, although he
might occasionally complain of some soreness in his left knee
from time to time.”
testified that after he returned to work he still had
temporary issues with his left knee, such as a little pain
that lasted for about 3 to 4 months and he could not
initially run full stride.
Police Detective Position
promotion of police officers with Kingston Municipal Police
Department (“KMPD”) was governed by the Civil
Service Rules and Regulations which were issued by
Kingston's Civil Service Commission on May 20, 2015.
(Doc. 16-1 at 34-57). The Civil Service Rules and Regulations
require all applicants for promotion to take a written and
oral examination, “with the written examination
representing seventy percent (70%) of the final score and the
oral examination representing thirty percent (30%) of the
final score.” Once all applicants have completed the
written and oral examinations, the Commission ranks all
“passing applicants on a list with the applicant
receiving the highest score at the top of the list and the
applicant receiving the lower passing score at the bottom of
the list.” The eligibility list is valid for a period
of 12 months from the date of formal adoption, although it
can either be voided at any time by the Commission, or
extended for a maximum period of one additional year.
Civil Service Rules and Regulations state that the Mayor of
Kingston “may fill any vacancy in an existing position
in the Police Department.”
Kingston's Civil Service Rules and Regulations, the
procedures for police promotions were as follows:
(b) [E]very position, except that of the Chief of Police,
Assistant Chief of Police, Fire Chief or Deputy Fire Chief,
shall be filled only in the following manner:
1. The Mayor of Kingston shall notify the Commission of any
vacancy which is to be filled and shall request the
certification of three (3) names from the list of eligible
2. If three (3) names are not available, then the Commission
shall certify the name(s) remaining on the list.
3. The Mayor shall make an appointment from the certified
list with reference to the merits and fitness of the
applicants. However, for initial appointments to the position
of Police Officer or Fire Fighter when one of the applicants
on the certified list is a Veteran, that applicant shall be
Civil Service Regulations had a provisions stating that it
was Kingston's and the Commission's “policy to
grant equal employment opportunities to qualified persons
without regard to race, religion, color, national origin,
gender, age, marital status or non-job related physical or
mental handicap or disability.”
Kingston's Civil Service Regulations did not contain any
requirement that a candidate who was placed on an eligibility
list for an open position based on his Civil Service score be
given an interview prior to the selection for the position.
Nor did the Civil Service Regulations contain any criteria
which the Mayor had to follow in selecting a candidate for an
open position in the KMPD. The Civil Service Regulations
provided that the Civil Service Commission certifies a list
of the top three candidates and the Mayor then selects from
that list. However, the Civil Service Commission had
requirements for the candidates before they were put on the
list and, it conducted written testing and oral interviews.
January of 2016, a vacancy was open for the position of
detective with the KMPD. The detective division's primary
role is initiating investigations into potential criminal
wrongdoing, and following through with the investigations
until an arrest is made.
KMPD indicated its intent to fill the open vacancy for the
detective position. The Mayor of Kingston at the time was
defendant James Haggerty, and he notified the Civil Service
Commission of the vacancy and requested that the Commission
certify three names for consideration to the position. The
Commission provided Haggerty with a certified list of police
officers eligible for promotion to detective as of March 10,
2015. This list was valid until March 10, 2016.
three officers, in order of eligibility for promotion to
1. Thomas McTague, score 71.26
2. George Kocher, score 71.15
3. John Anthony, score 69.86.
January 15, 2016, while plaintiff was still off from work due
to his knee injury, he learned that KMPD had a vacancy for a
detective position. Plaintiff was second on the list of three
certified applicants for the position. Also, on January 15,
2016, plaintiff received a text message from former KMPD
police officer and detective Ian Urbanski, who worked for
KMPD from May of 2005 to January of 2016, stating,
“They're giving promotional interviews to Mctague
(sic) and Anthony today. It's messed up if they
didn't call you.” (Doc. 19-5). Plaintiff testified
that both McTague and Anthony told him that he were
interviewed for the detective position.
Section 5.2(b) of the Civil Service Rules and Regulations,
Haggerty had the final authority to fill the detective
position from the stated three applicants, based on the
merits and fitness of the applicants. Haggerty reviewed each
officer's performance as police officers, including their
work in conducting criminal investigations and their arrest
statistics from 2013 through 2015.
Criminal Statistics for each applicant were as follows: