Richard Hoffman v. City of Bethlehem
Filing
NOT PRECEDENTIAL OPINION Coram: CHAGARES, VANASKIE and FISHER, Circuit Judges. Total Pages: 9. Judge: VANASKIE Authoring.
Case: 17-2807
Document: 003112961977
Page: 1
Date Filed: 06/20/2018
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-2807
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RICHARD HOFFMAN,
Appellant
v.
CITY OF BETHLEHEM
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 5-16-cv-01581)
District Judge: Honorable Edward G. Smith
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Submitted Under Third Circuit L.A.R. 34.1(a)
April 9, 2018
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Before: CHAGARES, VANASKIE and FISHER, Circuit Judges
(Opinion filed: June 20, 2018)
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OPINION*
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VANASKIE, Circuit Judge.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
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Appellant Richard Hoffman appeals the District Court’s grant of summary
judgment in favor of Appellee, the City of Bethlehem (the “City”). Hoffman challenges
the District Court’s conclusion that the City’s refusal to reinstate him did not violate the
Rehabilitation Act, 29 U.S.C. § 794. Because the City offered legitimate,
nondiscriminatory reasons for refusing to reinstate Hoffman, and Hoffman failed to
demonstrate those reasons were pretextual, we will affirm the District Court judgment.
I.
Hoffman was a patrolman for the City’s police department since July 2003.1 Late
one night in August 2013, while off duty, Hoffman was charged with driving a motor
vehicle while under the influence (“DUI”) and careless driving. Subsequently, the
Police Department, through the City Solicitor, requested that City Council terminate
Hoffman. In addition to the DUI, the City Solicitor cited, inter alia, three other alcoholrelated incidents, two prior disciplinary actions, Hoffman’s alleged untruthfulness during
the DUI investigation, and the alleged damage Hoffman had caused to public confidence
in the Police Department. After holding a hearing at which Hoffman did not appear,
City Council terminated Hoffman.
Hoffman timely grieved his termination, and the matter was referred to
arbitration. The question presented to the arbitrator was whether there was “just cause”
The following facts are taken from the City’s Statement of Undisputed Material
Facts in Support of Summary Judgment, which the City submitted to the District Court.
Hoffman did not respond to the City’s statement, nor did he submit his own counterstatement. Rather, Hoffman incorporated the City’s statement by reference into his
opposition to the motion for summary judgment. Thus, the following facts are
undisputed.
1
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for Hoffman’s termination. (A91a.) The arbitrator concluded there was just cause to
discipline Hoffman, but not to terminate him. The arbitrator determined that a 25-day
suspension, “the longest suspension short of discharge,” was appropriate.2 (A107a.)
The arbitrator based his reasoning on the doctrine of progressive discipline and the fact
that Hoffman had only ever received written reprimands for prior misconduct.
Additionally, the arbitrator noted that there was insufficient evidence in the record from
which he could conclude that Hoffman would be fit to return to duty after the
suspension. Accordingly, the arbitrator conditioned Hoffman’s reinstatement on the
City’s right to require a fitness for duty evaluation.
The City appealed the arbitrator’s decision. While the appeal was pending,
Hoffman participated in a fitness for duty examination conducted by Dr. Frank M.
Dattilio, a clinical psychologist. Dr. Dattilio prepared a report in which he concluded
that, due to a strong potential for relapse with alcohol, Hoffman was unfit for duty. In
addition to this conclusion, Dr. Dattilio offered several recommendations to aid in
Hoffman’s future treatment.
2
Bethlehem Police Directive Number 1.3.1. establishes a disciplinary matrix for
misconduct. (A91a (reprinted as part of the arbitrator’s February 9, 2015 decision).)
The Directive incorporates a principle of progressive discipline ranging from written
reprimand to discharge. The standard discipline for a single off-duty drunk driving with
collision is 5 to 20 days suspension. (A92a.) The Directive, however, provides,
“[r]epeated violations may result in more severe disciplinary action based on the
repetitive nature of the violations . . . .” (A92a.) Additionally, the Directive permits the
Office of Police Commissioner to “deviate from the standard [disciplinary] range” and
directs that “[s]uch deviation shall be based on any mitigating or aggravating factors
relative to each particular incident.” (A92a.)
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The City refused to reinstate Hoffman, and the parties returned to arbitration.
The arbitrator rendered a second opinion, agreeing with the City’s decision. The
arbitrator noted that the City was not obligated to provide Hoffman with employment or
to monitor his recovery. The arbitrator concluded that, in light of Dr. Dattilio’s
evaluation declaring Hoffman unfit for duty, and due to the uncertainty surrounding
whether Hoffman would be declared fit in the near future, the City was not required to
reinstate Hoffman.
Hoffman did not appeal this decision. Instead, he brought a lawsuit against the
City alleging that his termination and the City’s refusal to reinstate him violated § 504 of
the Rehabilitation Act, 29 U.S.C. § 794. After removal to the District Court, the filing
of an Amended Complaint, and a denial of a motion to dismiss, the City moved for
summary judgment. The District Court granted the City’s motion. First, the District
Court assumed that Hoffman had made out a prima facie case for disability
discrimination based on perceived alcoholism. Second, the District Court determined
that the City had proffered legitimate, nondiscriminatory reasons for refusing to reinstate
Hoffman after arbitration including, inter alia, the DUI and Hoffman’s history of
misconduct. Third, the District Court concluded that Hoffman’s admission of the City’s
Statement of Undisputed Material Facts, and failure to provide his own statement of
facts, meant that Hoffman did not dispute the City’s reasons for its refusal to reinstate
him. Thus, the District Court concluded, summary judgment was appropriate.
Additionally, the District Court noted that, although Hoffman’s primary opposition to
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the motion for summary judgment was a substantive challenge to Dr. Dattilio’s report
and the arbitrator’s decision,
[b]ecause this is a free-standing employment discrimination
action and not an appeal of any sort it would be inappropriate
for the court to assess the merits of the arbitrator’s or Dr.
Dattilio’s opinions. The only issue before the court is whether
the City has rebutted a prima facie case of discrimination by
presenting legitimate, nondiscriminatory reasons for
terminating and refusing to reinstate Hoffman, and whether
Hoffman has met his burden of demonstrating that those
reasons were pretextual.
(A14a n.3.)
Hoffman timely appealed the District Court’s grant of summary judgment to the
City with regard to the City’s refusal to reinstate him after arbitration.3
II.
The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have
jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over an order
granting summary judgment. See Torres v. Fauver, 292 F.3d 141, 145 (3d Cir. 2002).
III.
3
The District Court also concluded that the City proffered numerous legitimate,
nondiscriminatory reasons for terminating Hoffman, which Hoffman failed to rebut as
pretextual. Hoffman does not appear to appeal this issue. See, e.g., Appellant’s Br. at
11 (providing examples of Appellee’s conduct after the first round of arbitration as “the
single issue at hand”); id. at 20 (“In other words, the genuine issue of material fact is,
why was the Appellant never returned to work, even though his termination had been
reversed by the labor arbitrator?”). To the extent Hoffman’s brief could be construed as
appealing the grant of summary judgment with regard to his termination, we would
affirm for the reasons stated by the District Court.
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The Rehabilitation Act “forbids employers from discriminating against persons
with disabilities in matters of hiring, placement, or advancement.” Wishkin v. Potter,
476 F.3d 180, 184 (3d Cir. 2007) (quoting Shiring v. Runyon, 90 F.3d 827, 830–31 (3d
Cir. 1996)). Once a plaintiff establishes a prima facie case of discrimination under the
Act,4 the burden shifts to the defendant to rebut the presumption of discrimination by
“articulat[ing] some legitimate, nondiscriminatory reason for the employment action.”
Id. at 185. A plaintiff, however, may still establish discrimination by proving the
defendant’s explanation is pretextual. Id. To prove pretext, a plaintiff may either “(i)
discredit[] the employer’s proffered reasons, either circumstantially or directly, or (ii)
adduc[e] evidence, whether circumstantial or direct, that discrimination was more likely
than not a motivating or determinative cause of the adverse employment action.” Id.
(quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)).
The City contends that the DUI and Hoffman’s past misconduct served as the
basis for its refusal to reinstate Hoffman. Assuming that Hoffman satisfied his prima
facie showing, the question on appeal is whether Hoffman adduced sufficient evidence
that the City’s proffered reasons for refusing to reinstate him were pretextual.5
“To establish a prima facie case of discrimination under the Rehabilitation Act,
a plaintiff must initially show, ‘(1) that he or she has a disability; (2) that he or she is
otherwise qualified to perform the essential functions of the job, with or without
reasonable accommodations by the employer; and (3) that he or she was nonetheless
terminated or otherwise prevented from performing the job.’” Wishkin, 476 F.3d at
184–85 (quoting Shiring, 90 F.3d at 831).
4
5
The City also argues that Hoffman failed to establish that he was regarded by
the City as disabled at the time of the alleged discrimination, and that this is an
alternative ground for affirmance. Because we will affirm based on the absence of
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Hoffman posits four separate reasons why summary judgment was not warranted.
We will address each argument in turn.
Hoffman’s primary argument is that the City relied on Dr. Dattilio’s report in
refusing to reinstate him. According to Hoffman, reliance on the report was evidence of
the City’s discriminatory intent because the report suggested that Hoffman was an
alcoholic who was likely to relapse. Hoffman, however, fails to identify any record
evidence demonstrating that the City relied on the report. Rather, the record suggests
that the City consistently relied on the DUI and Hoffman’s past misconduct as the bases
for his initial termination, as well as the refusal to reinstate him.
Assuming arguendo that the City had relied on Dr. Dattilio’s report, no
reasonable juror would conclude that doing so was evidence of discriminatory intent.
Although an employer is prohibited from discharging an employee based on a disability,
an employer is not prohibited from discharging an employee based on misconduct, even
if that misconduct is related to his disability. See 42 U.S.C. § 12113(a), (b) (establishing
defense if employer requires that employee “shall not pose a direct threat to the health or
safety of other individuals in the workplace”); 29 U.S.C. § 794(d) (claims of
employment discrimination in violation of the Rehabilitation Act are governed by
standards of the Americans with Disabilities Act). Reliance on a report that concluded
that Hoffman was unfit for duty, even if that unfitness was, at bottom, related to alcohol
use, was legitimate.
evidence suggesting that the City’s articulated rationale for its refusal to reinstate him
was a pretext for discrimination, we need not consider this issue.
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Hoffman also contends that the City’s reliance on Dr. Dattilio’s report was
pretextual for two additional reasons: (1) the City hired Dr. Dattilio; and (2) the City
ignored several of Dr. Dattilio’s recommendations. There is no record support for the
suggestion that Dr. Dattilio was biased by his relationship with the City. Nor does
Hoffman cite any authority for the proposition that the City was obligated to implement
Dr. Dattilio’s recommendations.
Hoffman’s second argument in support of reversal is that the arbitrator’s first
ruling, which resulted in a favorable decision for him, would cause a reasonable juror to
disbelieve the City’s stated reasons for refusing to reinstate him. We are not persuaded.
The arbitrator addressed a question distinct from that which a jury would face—whether
there was just cause to support Hoffman’s termination, not whether the City
discriminated against Hoffman. Additionally, the record is clear that the City has
consistently maintained that the DUI and Hoffman’s past misconduct were the reasons
for its termination and reinstatement decisions, independent of whether those reasons
amounted to just cause.
Third, Hoffman argues that the existence of comparators—i.e., two other officers
who were charged with DUIs, but who are still employed—suggests pretext. Hoffman,
however, has offered no evidence demonstrating that the other officers who were
charged with DUIs are appropriate comparators. For instance, there is no evidence
about whether these alleged comparators were regarded as alcoholics, whether they had
similar histories of misconduct, whether they were adjudicated unfit for duty, or whether
they ever faced reinstatement proceedings.
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Finally, Hoffman argues that the District Court’s previous decision denying the
motion to dismiss, Hoffman v. City of Bethlehem, No. 16-01581, 2016 WL 4318975
(E.D. Pa. Aug. 12, 2016), is the law of the case. The doctrine of the law of the case
“limits relitigation of an issue once it has been decided.” In re Cont’l Airlines, Inc., 279
F.3d 226, 232 (3d Cir. 2002). In its previous decision, the District Court did not
consider whether the City had proffered legitimate, nondiscriminatory reasons for
refusing to reinstate Hoffman. Nor did it consider whether Hoffman had demonstrated
that the City’s proffered reasons were pretextual. Instead, the District Court’s decision
was limited to whether Hoffman had sufficiently pled the elements of a Rehabilitation
Act claim. Thus, the law of the case doctrine is inapposite here.
IV.
For the foregoing reasons, we will affirm the grant of summary judgment in favor
of the City.
9
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