Recently, I read a case out of the Western District of Pennsylvania which I found absolutely fascinating. In this particular case, the court dealt with three issues. First, does the plaintiff have a disability at all? Second, does “regarded as” even apply outside of the title I context? Finally, was the plaintiff a direct threat and therefore, to the court’s view, not otherwise qualified?

The particular case is McDonald v. Pennsylvania State Police, 2012 WL 5381403 (W.D. Pa. October 31, 2012). In this particular case, McDonald, a police officer, suffered a work-related automobile accident from which he sustained a herniated disc. Id. at *1. The chronic pain resulted in lumbar decompression and fusion surgery. Id. After surgery, he attempted to resume his duties but was unable to do so. Id. That led to leaving his employment, receiving additional therapy, and to a continuing course of pain management therapy, as a result of which his condition began to improve. Id. Treatment for his injuries involved his physician lawfully prescribing the narcotic pain reliever Avinza at a stable dosage of 60 mg per day. Id. at *2. Importantly, the plaintiff testified that with the medication to manage the pain, he had no physical limitations that would impede him from performing the duties of a police officer. Id. at **2,8. He could bend, handcuff a suspect lying on the ground, and lift or subdue a person. Id. The only limitation he had was the ability to sit in the car for hours on end or to stand in one place for an extended period of time. Id. In May of 2007, Ellwood City Pennsylvania offered him the position of police chief. Id. at *2. In order to serve in that capacity, the plaintiff was required to be recertified by the Municipal Police Officers Education and Training Commission. Id. From there, things went from bad to worse. While Ellwood City was very accommodating, the plaintiff had much less luck with the Municipal Police Officers Education and Training Commission. That is, the medical advisor to the Municipal Police Officers Education and Training Commission refused to believe that the plaintiff could possibly perform his job in light of the injuries he suffered. Id. The plaintiff requested a hearing but was informed that no right to a hearing existed. Id. at *3. Ellwood City then demoted the plaintiff to a lower position with lower pay and benefits so that the plaintiff could essentially do the job of the police commissioner without having to be recertified. Id. At the request of Ellwood City, a doctor of osteopathy performed a functional performance evaluation and determined that the plaintiff was capable of performing the essential demands of the police chief job. Id. Another physician performed a psychological exam and prepared a report stating that the plaintiff was psychologically capable of exercising appropriate judgment and restraint to be certified as a police officer, and that there was no indication of anything that would preclude him from executing his duties as a police officer engaging in weapon usage. Id. You would think that this would’ve been the end of it. However, it wasn’t. The Municipal Police Officers Education and Training Commission then went on to the plaintiff’s lawful use of a narcotic and used that to refuse to certify the plaintiff despite receiving a letter from a physician that the plaintiff was stable on his present medication, demonstrated no side effects from the medication, and was neurologically intact and functioning fully cognitively. Id. at **3-4. Further, the physician had no concerns that McDonald would have any limitations due to his chronic pain or the medication prescribed for treating that pain. Id. at *4. As a result, the plaintiff was put on leave of absence for the entire 2009 calendar year, his contract expired, and the plaintiff found employment doing investigative services for the Travelers Group. Id. Not surprisingly, plaintiff filed suit alleging violation of both the Rehabilitation Act and title II of the ADA as well as a due process violation. Id.

There were three issues before the court. First, did the plaintiff have a disability at all? Since this was a pre-amendments case, mitigating measures per Sutton v. United Airlines had to be included in the analysis. When mitigating measures (Avinza), were included in the analysis, the court could not say that a major life activity was substantially limited, and therefore, the plaintiff did not have a disability under the ADA. Id. at *8, n.8.

Second, did the Municipal Police Education and Training Commission regard the plaintiff as having a disability? There can be no doubt as a factual matter that they did. First, they tried to claim that he could not physically do the job despite evidence to the contrary. See Id. at **2-3. Second, despite medical evidence to the contrary, the Metropolitan Police Officers Education and Training Commission took a rigid position that consumption of Avinza prevented the plaintiff from being certified. Id. at *6. Case closed right? Not so fast says the court for a couple of reasons. First, the court believed that the “regarded as” definition section of the ADA appears to only apply to disability discrimination in the employment setting under title I of the ADA and not to title II of the ADA. Id. at *10. The court cited to Farid v. Bouey, 554 F. Supp. 2d 301, 327 n. 19 (N.D. N.Y. 2008), to 42 U.S.C. § 12112(a) (discussing discrimination in employment), and to 29 C.F.R. § 1630.2(a)-(f),(l) (discussing “regarded as,” in the employment context), for support. Interestingly enough, the court notes that the answer may be different with respect to the Rehabilitation Act, but then never addresses that point. See Id. et. ff. Second, the court drew a distinction between regarding someone as a person with a disability with regarding the person as simply being unfit for certification as a municipal police officer (the former being a problem with the latter not being a problem). Id. at *10.

Does the court’s analysis of “regarded as,” withstand scrutiny? Of course, that is an answer that only the courts can decide, and since the decision has been appealed, the Third Circuit will get an opportunity. In the meantime, it bears discussing whether this does withstand further scrutiny. A strong argument can be made that it will not for several reasons. First, in the definition section in the ADA of what a disability is, there is nothing suggesting that “regarded as,” is limited to employment. See 42 U.S.C. § 12102(3). Second, while it is true that 29 C.F.R. § 1630.2(a)(f),(l) talk about regarded as in the employment context in some detail, it is not the EEOC that has the authority to regulate title II of the Americans with Disabilities Act. Rather, it is the Department of Justice with that authority. See 42 U.S.C. § 12205(a). Reviewing the implementing regulations issued by the Department of Justice with respect to “regarded as,” reveals nothing in that regulation suggests that “regarded as,” does not apply in the title II context. See 28 C.F.R. § 35.104(4). The same, as the court notes, also can be said for the Rehabilitation Act, which regulations also do not suggest that “regarded as” applies only to the employment context. See 45 C.F.R. § 84.3.

Finally, the court had to deal with the question of whether the plaintiff was otherwise qualified. As I have written for several years in the various editions of my book, the real issue here is whether a person is a direct threat rather than whether they are otherwise qualified, but the courts frequently use the term, “otherwise qualified” when discussing direct threat. With respect to this question, the court said that absent evidence of the type of unreasoning prejudice for which the ADA was aimed at, that the difficult individualized decisions and the unique area of police officer certification was not well-suited for second-guessing by the court or jury and therefore, the plaintiff was not otherwise qualified. McDonald 2012 WL 5381403 at *13.

Will the court’s analysis of direct threat, withstand further scrutiny? It might or might not. The answer will depend upon how the appellate court, in this case the Third Circuit, interprets Chevron v. Echazabal, 536 U.S. 73 (2002). In that case, the U.S. Supreme Court said that direct threat must be based on the best available scientific evidence or the best objective evidence. Id. at 86. Here, as discussed above, there there were elaborate indications in the record that the best available scientific evidence or the best objective evidence was such that the plaintiff was not a direct threat to himself or others. That said, one wonders if direct threat means something different in the public safety context. That is, do public safety situations due to the nature of it being a public safety situation, create even more latitude with respect to determining direct threat regardless of the best available scientific or objective evidence? The court in this case suggests that such might be the case.

Advocacy/preventive tips: First, on the defense side, it is always better if you can limit the scope of the law. Thus, it makes sense to try to attempt to say that “regarded as,” does not apply beyond title I of the ADA. Plaintiffs of course are going to take the opposite approach and for the reasons discussed in this entry may well succeed. Plaintiffs are going to want to argue that nothing in the definition section of the ADA nor in the regulations that implement title II of the ADA suggest that “regarded as,” does not extend beyond employment. Second, this case illustrates the problems with mitigating measures being incorporated into the decision of whether a person has a disability. If the drugs are doing a great job with minimal side effects and the case occurred prior to the effective date of the amendments act, a defendant stands a good chance of prevailing on an argument that the plaintiff does not have a disability. Third, with respect to direct threat, plaintiffs are going to want to make an elaborate record, as was done in this case, showing that the person can do the essential functions of the job with or without reasonable accommodations and showing that the person based upon the best scientific or objective evidence, does not constitute a direct threat to himself or others. On the defense side, if there is a public safety situation, the defense will want to argue that public safety demands a different analysis and that such decisions are better off if not left to the court overriding very complex decisions of others. Finally, while the plaintiff would argue that the distinction between a certification exam and drawing conclusions about a person v. regarding a person as having a disability is a distinction that makes no sense or one without a difference, the fact that a court did make this distinction is something the defense may want to consider using in the appropriate situation, particularly in the public safety context. In short, it will be very interesting to see how the Third Circuit handles this.