Acevedo v. The City Of Philadelphia

• Decision Date: 21 January 2010
• Docket Number: Civil Action No. 08-1044.
• Citation: 680 F.Supp.2d 716
• Parties: Robert ACEVEDO, Plaintiff, v. The CITY OF PHILADELPHIA, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

680 F.Supp.2d 716

Robert ACEVEDO, Plaintiff,

v.The CITY OF PHILADELPHIA, Defendant.

Civil Action No. 08-1044.

United States District Court,

E.D. Pennsylvania.

Decided: Jan. 21, 2010.

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Jeffrey Campolongo, Law Office of Jeffrey Campolongo, Philadelphia, PA, for Plaintiff.

Anne Barden, Jeffrey B. First, City of Philadelphia Law Dept., Philadelphia, PA for Defendant.

MEMORANDUM

RONALD L. BUCKWALTER, Senior District Judge.

Currently pending before the Court are the Motion for Summary Judgment by Defendant City of Philadelphia (the "City") and the Cross-motion for Summary Judgment by Plaintiff Robert Acevedo. For the following reasons, Defendant's Motion is granted in part and denied in part, and Plaintiffs Motion is denied in its entirety.

I. FACTUAL AND PROCEDURAL HISTORY ¹

A. General Background of Regulation 32

This action focuses on the operation of Philadelphia Civil Service Regulation 32 ("Regulation 32" or the "Regulation") and its alleged discriminatory effect on Plaintiff, as well as other individuals with disabilities in violation of the Rehabilitation Act, 29 U.S.C. § 794, et seq. Philadelphia City Council passed Regulation 32 in 1953. (PL's Mot. Summ. J., Ex. D, Dep. of Hilary Cornell ("Cornell Dep."), 6:16-23, Aug. 6 2009.) The Regulation applies to disabled individuals with the purpose of "provid[ing] benefits for... all employees in the civil service except, temporary emergency, seasonal, and part-time employees and those paid at established hourly rate." (Def.'s Mot. Summ. J., Ex. A ("Regulation 32") §§ 32.011, 32.012.) According to this Regulation, a "disability" is:

a physical or mental condition caused by injury or occupational disease, including heart and lung ailments, which is service-connected and prevents an employee from performing the essential functions of the job classification to which the employee is assigned, with or without accommodation. For purposes of this section, disability does not include any condition which is self-inflicted or caused by another person for reasons personal to the employee and not because of this employment.

(Id. § 32.033.) Once an employee is deemed disabled, he or she is entitled to either seventy-five or eighty percent of the base salary he/she was being paid on the date of disability (depending on whether the employee is required to make Social Security contributions). (Id. § 32.023.) For a police officer injured on duty as either "an immediate result of the violent conduct of a third party directed towards the officer or a member of the public," or "an immediate result of performing other heroic action in an emergency situation in the line of duty," Regulation 32 provides that such officer shall receive 100% of the officer's pre-injury base pay, including longevity. (Id.)

The Regulation defines the various types of disabilities that it covers. A "partial disability" is one "which prevents an employee from performing the normal duties of the employee's position, but which does not prevent the employee from performing the duties of some other position in the civil service." (Id. § 32.026.) A "total disability" is one "which prevents an employee from performing any kind of gainful employment." (Id. § 32.0210.) A "permanent disability" is a "disability determined as not medically correctable and likely to continue for the remainder of the employee's life." (Id. § 32.027.) Finally, a "temporary disability" is a "disability determined not to be permanent." (Id. § 32.029.)

According to Regulation 32, an employee who is "temporarily disabled" "may be continued in such status for a period not to exceed one year for each work-related injury," unless extended in six month increments at the recommendation of the Medical Director. (Id. § 32.045.) An employee however, may not be continued in temporary total disability status for more than three years. (Id.) Similarly, a "permanently and totally disabled" employee shall be compensated at disability salary for at least one year and potentially longer at the recommendation of the Medical Director but for no longer than three years. (Id. § 32.0511.) Finally, and most important for the present "permanently and par-

tially disabled" employee shall be referred for re-employment in a position compatible with his or her disability, skills, abilities and aptitudes, and shall receive supplemental compensation equaling the difference between the salary rate of the preinjury position and the salary rate of the secondary position. (Id. §§ 32.061, 32.06213.) If a secondary position is not available, either due to the lack of vacancies or the employee's disability, the employee shall be compensated at disability salary for a period of up to six months, which may be extended for up to one year. (Id. § 32.0642.)

An employee who is separated from his or her position as "permanently and partially disabled" and who seeks to receive his or her pension must apply to the Board of Pensions. (Cornell Dep. 16:25-18:9.) Such an employee may not receive both a service-connected disability pension and a workers' compensation pension. (Id. 18:10-22.) An employee separated as permanently and either partially or totally disabled forfeits all accumulated sick leave and vacation time. (Regulation 32 §§ 32.053, 32.0642; PL's Mot. Summ. J., Ex. K, Response to Request for Admissions ("Response to Request") No. 11.)

B. Administration of Regulation 32

Wilhelmina Korevaar is the current Medical Director of the Employee Disability Program of Philadelphia. (Def.'s Mot Summ. J., Ex. B, Wilhelmina Korevaar Aff. ("Korevaar Aff.") ¶ 1.) As Medical Director, Dr. Korevaar is responsible for the review of medical documentation regarding City employees who are participating in the disability programs offered by the City, including Regulation 32. (Id. ¶ 2.) In addition, she bears the initial responsibility for determining whether a City employee sustained a service-connected injury and whether that injury is total or partial and permanent or temporary. (Cornell Dep. 19:21-20:5; Regulation 32 § 32.031.)

As explained by Dr. Korevaar, the disability determination process begins when she first receives a notice from the employee's health care providers stating that the employee has reached "maximum medical improvement." (Korevaar Aff. ¶3.) Thereafter, she schedules a meeting with the employee to discuss his or her disability status and she reviews any medical documentation brought by the employees from their own medical providers, as well as medical documentation provided by the City's third-party administrator. (Id.) In making her decision, Dr. Korevaar considers the employee's viewpoint, all submitted medical documentation, and the essential functions of the employee's position. (Id. ¶ 5.) She does not examine the employee. (PL's Mot. Summ. J. Ex. K, Response to Request No. 16.) Both the treating doctor's assessment and the individual employee's assessment are given great weight. (PL's Mot. Summ. J., Ex. I, Dep. of Wilhelmina Korevaar ("Korevaar Dep.") 33:16-25, 45:4-17, 52:19-53:12, Mar. 17, 2005.) She has never determined individuals to be permanently and partially disabled if they believed that they could do their pre-injury jobs. (Id. at 45:10-17.)

In order for an employee to be deemed not disabled, for purposes of Regulation 32, he or she needs to be able to perform all of the essential functions of the job classification to which the employee is assigned. (Regulation 32 §§ 32.022, 32.026; Korevaar Aff. ¶5; Cornell Dep. 21:1022:6.) To make such a determination, Dr. Korevaar relies on each department's requirements for full, active duty and standard job descriptions. (Korevaar Dep. 45:18-21.) Full, active duty refers to particular job classifications, not specific jobs within them. (Id. at 45:22-25.) In some more unusual job classifications, Dr. Korevaar contacts the department to understand precisely what a classification encompasses and what opportunities actually exist. (Id. at 50:7-51:8.)

Once the Medical Director makes the initial determination of the nature and extent of disability, either the disabled employee or the appointing authority has the right, within fifteen days after receipt by the employee of written notice of the Medical Director's decision, to ask that a Medical Board review the determination of disability. (Regulation 32 § 32.0312.) The employee may then, at his or her own expense, obtain and present to the Medical Board any medical histories, reports, or testimony. (Id. § 32.0313.) Upon completing a review of the evidence, the Medical Board reports its findings and conclusions to the appointing authority and to the disabled employee or employee's physicians. (Id. § 32.0314.) These findings and conclusions are subject only to appeal to the Civil Service Commission. (Id. §§ 32.0314, 32.12.) Civil Service Commission decisions are then appealable to the Court of Com- mon Pleas of Philadelphia County. 2 Pa. Cons.Stat. § 752 (2008).

If someone is deemed to be "permanently and partially disabled," he or she meets with the Medical Director to discuss various options such as participating in the "secondary employment" program—which is discussed in more detail below—or obtaining a reprieve of an additional few months for the condition to improve. (Cornell Dep. 29:5-30:3.) The "permanently and partially disabled" determination is not a finalization of disability status. (Id. at 29:23-30:3.) The discussion is rather informal and simply explores what the person wants to do and what they believe their medical condition to be. (Id. at 33:22-34:11.) Moreover, the Medical Director and employee may have additional meetings on the subject. (Id. at 35:836:7.) If the employee has reached a three-year aggregate or maximum at the time they meet with the Medical Director however, there are no options available to that employee to remain within City employment other than the ...