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Kocher v. Municipality of Kingston

United States District Court, M.D. Pennsylvania

August 13, 2019




         Pending before the court is the motion for summary judgment, pursuant to Fed.R.Civ.P. 56, filed by defendants Municipality of Kingston (“Kingston”)[1]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.

         Based 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.

         I. MATERIAL FACTS[2]

         1. Work Injury

         For 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.

         On June 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 restrictions.

         Plaintiff 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.

         Plaintiff 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.

         Also, 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 Law.

         At his 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.

         In 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.

         There 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.

         Following 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.

         Plaintiff 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 weeks.

         No 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.

         On 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 work.

         Kingston's 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.”

         Plaintiff 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.

         2. Police Detective Position

         The 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.

         The Civil Service Rules and Regulations state that the Mayor of Kingston “may fill any vacancy in an existing position in the Police Department.”

         Under Kingston's Civil Service Rules and Regulations, the procedures for police promotions were as follows:

5.2 Appointment
(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 persons.
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 selected.

         Kingston's 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.”

         Notably, 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.

         In 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.

         The 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.

         The three officers, in order of eligibility for promotion to detective, were:

1. Thomas McTague, score 71.26
2. George Kocher, score 71.15
3. John Anthony, score 69.86.

         On 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.

         Under 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.

         The Criminal Statistics for each applicant were as follows:

Criminal Statistics:






9 Criminal

19 Criminal

20 Criminal



3 Criminal

5 Criminal

2 Criminal



33 Criminal

32 Criminal

21 Criminal


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