Perdick v. City of Allentown, PICS Case No. 14-0433 (E.D. Pa. Feb. 26, 2014) Rice, J. (11 pages).

U.S. DISTRICT COURT-EASTERN

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LABOR AND EMPLOYMENT

Disability Discrimination • Police Officer • §1983 • Fourteenth Amendment

Perdick v. City of Allentown, PICS Case No. 14-0433 (E.D. Pa. Feb. 26, 2014) Rice, J. (11 pages).

A former Allentown police officer sued alleging a procedural due process claim and that Allentown violated the ADA and the PHRA by failing to provide him with a reasonable accommodation. Allentown's motion for summary judgment granted as to the ADA and PHRA claim and denied as to the due process claim.

Perdick was hired as an Allentown police officer in 2006 and injured his right knee one year later. From April 2007 to September 2009, he received treatment for his injury. In September 2009, he was released to work with permanent physical restrictions after a doctor found that he had reached his maximum medical improvement. He returned to work in the records division. Perdick acknowledged that he knew that the department had a policy of allowing an injured officer six months of temporary, light duty work and that the department did not have a permanent light duty position. At his March 15, 2010, "Heart and Lung" hearing on the termination of his temporary disability benefits, Perdick acknowledged that he was permanently injured and unable to perform police officer duties. An April 21, 2010, letter to Perdick informed him that he no longer met the requirements of a police officer, listed other available city job positions and asked Perdick to respond by April 30, 2010, to discuss continued employment. Perdick did not respond to the letter and was terminated on May 13, 2010.

Allentown argued that Perdick was not qualified to perform the essential functions of a police officer. When he reached his maximum medical improvement and was approved to return to work with permanent restrictions, those restrictions included sedentary work; constant sitting; occasional standing, walking and bending and never kneeling and crawling. Perdick acknowledged that as of his termination, he was unable to perform the essential functions of a police officer, he acknowledged that he could not perform many physical tasks required of an officer, and he failed to provide the essential qualities of the records division jobs. Thus, Perdick failed establish that he is qualified individual under the ADA.

Perdick alleged that he wanted to continue working at the position in the records division, but he failed to request that or any other accommodation. Additionally, Allentown offered to discuss other available positions with him, but he failed to respond. Perdick also acknowledged that the knew that it was department practice to use the records division job for light duty assignments.

Perdick also alleged he could not physically perform or had no experience performing any of the offered jobs, but he failed to communicate that to Allentown. He also failed to cite any law that required his accommodation to be within the police department rather than as a city employee. Perdick failed to show a failure to accommodate because he failed to request an accommodation or engage in the process Allentown offered to him.

As a police officer, Perdick had a protected property interest in his continued employment and was entitled to a pre-termination hearing which Allentown failed to provide. The "Heart and Lung" hearing did not provide such a hearing because it involved only the discontinuation of his benefits, not employment termination. Thus, Allentown's motion to dismiss was denied with respect to Perdick's §1983 claim.

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