HOFFMAN v. CITY OF BETHLEHEM

Filing 9

OPINION. SIGNED BY HONORABLE JAMES KNOLL GARDNER ON 8/12/16. 8/12/16 ENTERED AND COPIES E-MAILED.(er, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNS"fLVANIA

RICHARD HOFFMAN,

Civil Action
No. 16-cv-01581

Plaintiff
v.
CITY OF BETHLEHEM,
Defendant

*

*

*

APPEARANCES:
DONALD P. RUSSO, ESQUIRE
On behalf of Plaintiff
SUZANNE MCDONOUGH, ESQUIRE
On behalf of Defendant

*

*

*

OPINION

JAMES KNOLL GARDNER
United States District Judge

This matter is before the court on Defendant City of
Bethlehem's Motion to Dismiss Plaintiff's Amended Complaint
Pursuant to Federal Rule of Civil Procedure 12(b) (6)
Dismiss") . 1

For the reasons expressed below,

("Motion to

I deny defendant's

Motion to Dismiss.

Defendant's Motion to Dismiss was filed on May 4, 2016 together
with a Memorandum of Law in Support of Defendant's Motion for Dismissal
Pursuant to Federal Rule of Civil Procedure 12 (b) (6) ("Defendant's
Memorandum"), and Exhibits A through D to Defendant's t-1emorandum.
As
explained in PROCEDURAL HISTORY, below, I only considered Exhibits A and C in
my decision.
(Footnote l

continued):

SUMMARY OF DECISION

In his Amended Complaint (the operative pleading in
this matter), plaintiff Richard Hoffman asserts one claim.

In

Count I, plaintiff asserts a federal claim against defendant
City of Bethlehem for discrimination in violation of section 504

of the Rehabilitation Act of 1973.

2

In its' Motion to Dismiss, defendant seeks to dismiss

plaintiff's Amended Complaint on various grounds.
For the reasons expressed below,

I deny defendant's

Motion to Dismiss Count I of the Amended Complaint for failure

to exhaust administrative remedies because plaintiff is not
required to exhaust administrative remedies before asserting
this claim.
Moreover,

I deny defendant's Motion to Dismiss Count I

of the Amended Complaint for failure to state a viable cause of
action because plaintiff has sufficiently pled such a claim.
JURISDICTION
This court has jurisdiction pursuant to 28 U.S.C.
§

1331 because plaintiff's Amended Complaint alleging that

(Continuation of footnote 1):
Plaintiff's Memorandum of Law in Opposition to Defendant's Motion
to Dismiss the A.mended Complaint ("Plaintiff's Memorandum"i was filed on
May 18,

2016.

29

u.s.c.

§

794.

- 2 -

defendant discriminated against him was brought pursuant to the
Rehabilitation Act of 1973, and thus poses a federal question.
VENUE

Venue is proper pursuant to 28 U.S.C. § 139l(b)
because the events giving rise to plaintiff's claim allegedly
occurred in Northampton County, Pennsylvania, which is within
this judicial district.
PROCEDURAL HISTORY
Plaintiff Richard Hoffman initiated this litigation on
March 11, 2016 by filing a Complaint against defendant City of
Bethlehem in the Court of Common Pleas of Northampton County,
Pennsylvania.
Defendant removed the case from the Court of Common
Pleas of Northampton County to this court on April 6, 2016 and
filed a motion to dismiss plaintiff's Complaint on April 13,
2016.

On April 27, 2016, in response to defendant's first
motion to dismiss, plaintiff filed an Amended Complaint which
added additional factual allegations.

By my Order dated May 5,

2016 and filed May 6, 2016 I dismissed defendant's original
motion to dismiss as moot based upon plaintiff filing his
Amended Complaint.

- 3 -

On May 4, 2016 defendant filed a motion to dismiss
plaintiff's Amended Complaint, a memorandum of law in support of
the motion and four exhibits, two of which I considered in
reaching my decision.

3

Generally, in ruling on a motion to dismiss, the court relies on
the complaint, attached exhibits, and matters of public record, including
other judicial proceedings.
Sands v. McCormick, 502 F.3d 263, 268 {3d Cir.
2008).
However, "a court may consider an undisputedly authentic document
that a defendant attaches as an exhibit to a motion to dismiss if the
plaintiff's claims are based on the document.n Pension Benefit Guaranty
Corporation v. White Consolidated Industries, Inc., 998 F.2d 1192, 1196
(3d Cir. 1993). Consideration of such a document does not convert a motion
to dismiss into a motion for summary judgment because the plaintiff is aware
of the contents of the document and the need to refute it is diminished.
Id.
at 1196-1197.
Exhibit A is a copy of Plaintiff's Amended Complaint and was
considered because it is the operative pleading in this matter.
Exhibit B is a copy of Resolution No. 2014-41, which defendant
City of Bethlehem purports to be the Bethlehem City Council Resolution
formally discharging plaintiff. See Defendant's Memorandum at pages 3-4.
However, because in his Amended Complaint plaintiff merely references, but
does not rely on, the Resolution, and because the Resolution introduces new
facts which contradict those in plaintiff's Arr1ended Complaint, I did not
consider Exhibit B.
I did not convert defendant's motion to dismiss into a
motion for summary judgment by considering new facts that are inconsistent
with the facts in plaintiff's Amended Complaint, which I must accept as true
for purposes of ruling on a motion to dismiss.
See Fowler v. UPMC Shadyside,
578 F.3d 203 (3d Cir. 2009).
Exhibit C is a copy of American Arbitration Association
arbitrator Walt De Treux's October 30, 2015 Decision.
Because in his Amended
Complaint plaintiff expressly relies on Arbitrator De Treux's October 30,
2015 Decision, I considered Exhibit C.
See Amended Complaint at 11 66-68;
White Consolidated, supra.
Exhibit D is a Stipulation between the City of Bethlehem and the
Fraternal Order of Police Star Lodge No. 20 for Richard Hoffman.
Because
plaintiff does not rely on or reference this document in his Amended
Complaint, and because defendant has not argued or established that this is a
public record, I did not consider it.
I did not convert defendant's motion
to dismiss into a motion for summary judgment by considering matters outside
plaintiff's _'1ffiended Complaint.

- 4 -

On May 18, 2016 plaintiff filed a memorandum of law in
opposition to defendant City of Bethlehem's motion to dismiss
the Amended Complaint.
Hence this Opinion.
STANDARD OF REVIEW
A claim may be dismissed under Federal Rule of Civil
Procedure 12(b) (6)

for "failure to state a claim upon which

relief can be granted."

A Rule 12 (b) (6) motion requires the

court to examine the sufficiency of the complaint.
Gibson, 355 U.S.
(1957)

41,

Conley v.

45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84

{abrogated in other respects by Bell Atlantic

Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955,
167 L.Ed.2d 929

(2007)).

Generally, in ruling on a motion to dismiss, the court
relies on the complaint, attached exhibits, and matters of
public record,
McCormick,

including other judicial proceedings.

502 F.3d 263, 268

Sands v.

(3d Cir. 2008).

Except as provided in Federal Rule of Civil
Procedure 9, a complaint is sufficient if it complies with
Rule 8 (a) (2), which requires "a short and plain statement of the
claim showing that the pleader is entitled to relief".

Rule

8 (a) (2) does not require heightened fact pleading of specifics,

-s-

but only enough facts to state a claim to relief that is
plausible on its face.

Twombly, 550 U.S. at 570, 127 S.Ct.

at 1974, 167 L.Ed.2d at 949.

4

In determining whether a complaint is sufficient, the
court must accept all factual allegations as true, construe the
complaint in the light most favorable to the plaintiff, and
determine whether, under any reasonable reading, the plaintiff
may be entitled to relief.

Fowler, 578 F.3d at 210

(citing

Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.

20081 I.
Although "conclusory" or "bare-bones allegations" will
not survive a motion to dismiss, Fowler, 578 F.3d at 210, a
compla,int may not be dismissed merely because it appears
unlikely that the plaintiff can prove those facts or will
ultimately prevail on the merits.

Phillips, 515 F. 3d at 231.

Nonetheless, to survive a Rule 12(b) (6) motion, the complaint
must provide "enough facts to raise a reasonable expectation
that discovery will reveal evidence of the necessary element."

The Supreme Court's Opinion in Ashcroft v. Iqbal, 556 U.S. 662,
684, 129 S.Ct. 1937, 1953, 173 L.Ed.2d 868, 887 (2009), states clearly that
the "facial plausibility" pleading standard set forth in Twombly applies to
all civil suits in the federal courts.
Fowler v. UPMC Shadyside,
578 F.3d 203, 210 (3d Cir. 2009).
This showing of facial plausibility then
"allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged", and that plaintiff is entitled to relief.
Fo1o1ler, 578 F.3d at 210 (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949,
173 L.Ed.2d at 884).

- 6 -

Id. at 234

(quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965,

167 L.Ed.2d at 940)

(internal quotations omitted).

The court is required to conduct a two-part analysis
when considering a Rule 12 (b) (6) motion.

First, the factual

matters averred in the complaint, and any attached exhibits,
should be separated from legal conclusions asserted. Fowler,
578 F.3d at 210.

Any facts pled must be taken as true, and any

legal conclusions asserted may be disregarded.

Id. at 210-211.

Second, the court must determine whether those factual
matters averred are sufficient to show that the plaintiff has a
"plausible claim for relief."

Id. at 211

(quoting Iqbal,

556 U.S. at 679, 129 S.Ct. at 1950, 178 L.Ed.2d at 884).

Ultimately, this two-part analysis is "contextspecific" and requires the court to draw on "its judicial
experience and common sense" to determine if the facts pled in
the complaint have "nudged [plaintiff's] claims" over the line
from "[merely] conceivable [or possible] to plausible."
556 U.S. at 679-680, 129 S.Ct. at 1949-1951,

Iqbal,

178 L.Ed.2d at 884-

885.

A well-pled complaint may not be dismissed simply
because "it strikes a savvy judge that actual proof of those
facts is improbable, and that a recovery is very remote and

- 1 -

unlikely."

Twombly,

550 U.S. at 556, 127 S.Ct. at 1965 1

167 L.Ed.2d at 940-941

(internal quotations omitted).
FACTS

Based upon averments in the Amended Complaint, and
accepting all factual allegations in that complaint as true, and
construing those factual allegations in the light most favorable
to plaintiff, as I must do under the foregoing standard _of
review, the pertinent facts are as follows.
Plaintiff Richard Hoffman was hired by defendant City
of Bethlehem as a police officer in July 2003.

5

Plaintiff held

the position of patrolman with defendant's police department,
was well liked by fellow officers and supervisors and received
four commendations and four complimentary letters from citizens
throughout his emploj!IDent with defendant's police department.

6

Defendant City of Bethlehem is a recipient of federal
funds.

7

On or about August 7, 2013 plaintiff was involved in
an off-duty arrest for driving a motor vehicle while under the
influence within the geographic jurisdiction of the City of
Amended Complaint at

'l[

3.

Id. at 'l['j[ 4-6.

Plaintiff seeks relief under § 504 of the Rehabilitation Act,
29 U.S.C. § 794, which provides relief for individuals who have been
discriminated against in programs and activities which have received federal
funds.
See Amended Complaint at 'l['l[ 44-50.

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Bethlehem and was suspended from his position as a patrolman,
pending investigation. 8
On January 27, 2014 plaintiff accepted admission into
the Accelerated Rehabilitative Disposition (ARD) program in the
Court of Common Pleas of Northampton County. 9

Plaintiff complied

with and satisfied all requirements of the ARD program. 10
The City of Bethlehem's disciplinary policy called for
a 5-to-20-day suspension for an officer involved in an incident
of off-duty driving under the influence. 11

This policy allowed

for deviation based on situation-specific mitigating or
aggravating factors.

12

Regarding plaintiff's situation,

defendant clty of Bethlehem determined that the aggravating
factors outweighed the mitigating factors and warranted
discharging plaintiff. 13
Plaintiff contested his termination, and pursuant to
the collective bargaining agreement, notified defendant that he

See Amended Complaint at

•

Id. at

''

Id.

''

Id. at

u

Id. at

7.

Id.

''

'

'

8.

'

9.

'

10.

- 9 -

wanted to submit to arbitration instead of a City Council
hearing . 14
Nevertheless, on March 18, 2014, following a hearing,
the Bethlehem City Council formally discharged plaintiff.

15

On February 9, 2015 American Arbitration Association
arbitrator Walt De Treux issued a Decision and Award and
concluded that defendant City of Bethlehem had just cause to
discipline, but not discharge, plaintiff. 16

Arbitrator De Treux

directed defendant to reduce plaintiff's punishment from
discharge to a 25-day suspension.

17

The decision by Arbitrator De Treux further directed
defendant to reinstate plaintiff to his former position, with no
loss of seniority, subject to the defendant's right to require
plaintiff to submit to, and successfully complete, a fitnessfor-duty evaluation. 18
duty declaration.

There was no deadline for a fitness-for-

19

"
"
''

See Amended Cornplaint at 1 10.
Id. at

n

10 and 11.

Id. at

n

13 and 22.

n

Id. at H

14 and 23.

"
"

Id. at

n

14 and 26-27.

Id. at 1 19.

-

10 -

Bethlehem Police Department discipline directive
1.3.2 (II) (F) (3) (d) (iv) restored plaintiff to full police power
after suspension. 20
On May 29, 2015 psychologist Dr. Frank Dattilio issued
his fitness-for-duty report of plaintiff and found that
plaintiff is an alcoholic at risk of relapse. 21

Dr. Dattilio's

fitness-for-duty report recommended several types of
rehabilitative treatment for plaintiff to be able to return to
work for defendant's police department. 22
Defendant has refused to allow plaintiff to continue
completing his fitness-for-duty process, which involved ongoing
rehabilitative treatment for alcoholism. 23
Defendant regards plaintiff as an alcoholic even
though it has no medical proof that he is an alcoholic or that
he is incapable of performing his job. 24

20

See Amended Complaint at 1 34.

Id. at 11 17-19.
Plaintiff further alleges that Dr. Dattilio was
hired and paid by defendant City of Bethlehem.
Id. at'[ 17.
Id. at 11 19-21 and 55.
Dr. Dattilio recommended plaintiff
maintain sobriety for at least six months, attend Alcoholics Anonymous
meetings for one year, and submit to random urine screening.
Id. at 11 20-21
and 54.
Id. at 11 30 and 31.
24

Id. at 11 53 and 62.

- 11 -

In addition, defendant never followed up with
plaintiff's compliance with the recommendations offered by Dr.
Dattilio in the fitness-for-duty report.

25

On October 30, 2015 Arbitrator De Treux issued a
second decision and stated that plaintiff should not be
reinstated. 26

Arbitrator De Treux based his finding solely on

Dr. Dattilio's fitness-for-duty assessment and failed to
consider the opinions of plaintiff's psychiatrist and
therapist. 27
Defendant utilized Dr. Dattilio's fitness-for-duty
assessment, which recommended plaintiff submit to rehabilitative
treatment, as justification for refusing to reinstate plaintiff
to his former position as a police officer. 28
CONTENTIONS OF THE PARTIES
Defendant's Contentions

Defendant City of Bethlehem contends that plaintiff's
section 504 claim should be dismissed for two reasons.
Initially, defendant contends that plaintiff's claim
under section 504 should be dismissed because plaintiff has

••
••
,.
••

See Amended Complaint at 1 64.

Id. at

''

Id. at

'

Id. at

''

66 and 67.

66.

70 and 71.

- 12 -

failed to exhaust his administrative remedies. 29

Next, defendant

contends that plaintiff's section 504 claim should be dismissed
because plaintiff has not sufficiently pled such a claim. 30

Plaintiff's Contentions
In opposition to the Motion to Dismiss, plaintiff
contends that exhaustion of remedies is not required for a claim
under section 504 where, as here, a private plaintiff is suing
an employer which is a private recipient of federal funds.

31

Moreover, plaintiff asserts that he has sufficiently pled a
violation of section 504 under the ~regarded asu prong. 32

DISCUSSION
For the reasons expressed below,

I conclude that

plaintiff was not required to exhaust administrative remedies
with respect to his claim under section 504 of the
Rehabilitation Act.

In addition,

I conclude that he has pled

sufficient facts to state such a claim.

Accordingly,

I deny

defendant's Motion to Dismiss plaintiff's Amended Complaint.

Exhaustion of Administrative Remedies
As stated above, defendant contends that plaintiff's
section 504 claim in Count I of the Amended Complaint must be
See Defendant's Memorandum at pages 6 and 7.
JD

••
••

Id. at pages 7-11 .
See Plaintiff's Memorandum at pages 3-5 .
Id. at pages 5-12.

- lo -

dismissed because plaintiff failed to exhaust his administrative
remedies prior to initiating this suit.
Section 504 of the Rehabilitation Act, 29 U.S.C.
§

794, bars federal agencies and recipients of federal funding

from discriminating against an individual on the basis of his or
Freed v. Consolidated Rail Corporation,

her disability.
201 F.3d 188,

191

(3d Cir. 2000) . 33

Defendant primarily relies on Zankel v. Temple
University, 245 F.App'x 196 (3d Cir. 2007), in support of its
argument that plaintiff was required to exhaust administrative
remedies prior to bringing suit under section 504. 34
As I have previously stated:
Although the Zankel· case (like the within matter)
involved a suit by a non-federal-employeeplaintiff against a private recipient of federal
funds, the statement that such plaintiffs are
required to exhaust administrative remedies
appears as dicta in that non-precedential Opinion
and does not discuss (and cannot overrule) the
Third Circuit's prior precedential Opinion issued
in Freed, which I am bound to follow.

Section 504 of the Rehabilitation Act provides that "[no]
otherwise qualified individual with a disability ... shall, solely by reason of
her or his disability, ... be subjected to discrimination under any program or
activity receiving Federal financial assistance .... "
29 U.S.C. § 794(a).
As defined by the statute, the term "program or activity"
includes all operations of "a department, agency, special purpose district,
or other instrumentality of a State or of a local government[.]" 29 U.S.C.
§ 794 (b) (1) (A).
Defendant's Memorandum at pages 6 and 7.

- 14 -

Luise v. Colonial Intermediate Unit 20, 2014 U.S.Dist. LEXIS
38167 at *24 (E.D.Pa. Mar. 21, 2014) (Gardner, J.).

See

Herring v. Chichester School District, 2007 U.S.Dist. LEXIS
82571 at *2, *8-10 (E.D.Pa. Nov. 6, 2007) (Yohn, S.J.).
In Freed v. Consolidated Rail Corporation,
201 F.3d 188 (3d Cir. 2000), the United States Court of Appeals
for the Third Circuit reaffirmed its "long-standing position
that section 504 plaintiffs [suing private recipients of federal
funds] may proceed directly to court without pursuing
administrative remedies."

Id. at 194.

Here, defendant City of Bethlehem is a recipient of
federal funds.

Plaintiff is a private individual.

Plaintiff

was not required to exhaust administrative remedies before
bringing suit because plaintiff is not a federal employee suing
a federal employer under section 504 of the Rehabilitation Act.
Rather, plaintiff is a private individual suing a recipient of
federal funds under that same provision.
Accordingly, I deny defendant's Motion to Dismiss
plaintiff's complaint based upon his failure to exhaust administrative remedies.
Failure to State a Claim

Next, defendant contends that plaintiff's claim under
section 504 of the Rehabilitation Act should be dismissed
- 15 -

because he has failed to state such a claim.

Defendant contends

that plaintiff failed to state a claim for two reasons.
Specifically, defendant contends that plaintiff has not
established that plaintiff is "regarded by" defendant as having
a disability and alternatively, that even if plaintiff has
established that plaintiff is regarded by defendant as being an
alcoholic, plaintiff's claim cannot succeed because the
Rehabilitation Act excludes from coverage a certain category of
alcoholics.

35

In response, plaintiff asserts that "[p]leading a
violation under the "regarded as" prong is now less arduous than
it was under pre-[ADA Amendments Act] standards[]" because a
plaintiff is not required to show a substantial limitation in a
major life activity. 36

More specifically, plaintiff contends

that he "need only show that his employer took a prohibited
action because of an impairment that the plaintiff had or was
perceived to have. " 37
Section 504 of the Rehabilitation Act provides that
''[n]o otherwise qualified individual with a disability ... shall,
solely by reason of her or his disability, be excluded from the

See Defendant's Memorandum at pages 7-11.
Plaintiff's Memorandum at page 5.
37

Id.

- 16 -

participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal
financial assistance.''

29 U.S.C. § 794(a).

To state a viable discrimination claim under section
504, plaintiff must show "(l) 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."

Shiring v.

Runyon,

90 F.3d 827,

831

(3d Cir.

1996).

The plaintiff must also show that defendant is a recipient of
federal funds.

29 U.S.C.

§

794.

Regarding the first element, plaintiff has pled
sufficient facts to show that he has a disability within the
meaning of the Rehabilitation Act.

"[A]lcoholism is a condition

which can rise to the level of a disability."

Hinnershitz v.

Ortep of Pennsylvania, 1998 U.S.Dist. LEXIS 20264 at *11
(E.D.Pa.

1998) (O'Neill, S.J. I.

Under section 504, the definition of "disability"
includes "(A) a physical or mental impairment that substantially
limits one or more major life activities of such individual;
(8) a record of such an impairment; or (C) being regarded as
having such an impairment".

See 29 U.S.C.
- 17 -

§

705(20) (B)

(defining

~individual

with a disability" in terms of section 3

of the Americans with Disabilities Act of 1990, 42 U.S.C.
§

12102(1)).

A plaintiff is regarded as having a disability if he
can establish that he has been subjected to discrimination
because of "an actual or perceived physical or mental impairment
whether or not the impairment limits or is perceived to limit a
major life activity."

42 U.S.C. § 12102(3) (A).

A plaintiff is

not regarded as having a disability if his impairment is
transitory and minor.

42

u.s.c.

§

12102

(3) (8).

Here, plaintiff avers that defendant regards plaintiff
as an alcoholic because of its reliance on Dr. Dattilio's
fitness-for-duty report as justification for why plaintiff
cannot be reinstated as a police officer.

38

Because Dr. Dattilio

found plaintiff unfit for duty based on alcoholism and because
plaintiff was not reinstated after Dr. Dattilio's
fitness-for-duty report was issued, it is reasonable to infer
that defendant did not reinstate plaintiff because it regards
him as an alcoholic based on Dr. Dattilio's report.
Under the standards set forth above, plaintiff has
pled sufficient facts to support the claim that he is an

See Amended Complaint at

~~

70-72.

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"individual with a disability" because defendant City of

Bethlehem regards him as an alcoholic.
Defendant argues that even if plaintiff has pled

sufficient facts to show that he is regarded by defendant as an
alcoholic, plaintiff cannot succeed on his claim because the

Rehabilitation Act excludes from coverage a certain category of
alcoholics.

Specifically, defendant relies on the non-

precedential decision of the United States Court of Appeals for

the Third Circuit in Nicholson v. West Penn Allegheny Health
System,

297 F.App'x 157

(3d Cir. 2008),

for the proposition that

an alcoholic plaintiff would be excluded from coverage under the
Rehabilitation Act based on the exception contained in
section 705.

39

Defendant is correct that the Rehabilitation Act does
not protect all alcoholics.

For purposes of establishing

disability under section 504, coverage is denied to "any
individual who is an alcoholic whose current use of alcohol
prevents such individual from performing the duties of the job
in question or whose employment, by reason of such current
alcohol abuse, would constitute a direct threat to property or
the safety of others."

29 U.S.C. § 705(20) (C) (v).

See Defendant's Memorandum at page 9.

- 19 -

At this time, reliance on both section 705 (20) (CJ (v)
and Nicholson is inappropriate.

Defendant implies that

plaintiff's alcoholism would somehow either prevent him from
performing necessary job duties or endanger property or the
safety of others.

However, these implications do not address

whether plaintiff has stated a claim upon which relief could be
granted.

At this stage in the proceeding, dismissal based upon

section 705(20) (C) (v)

is not appropriate.

This is consistent

with Nicholson, where the Third Circuit noted that the district
court was correct in concluding that under the circumstances of
that case, the plaintiff's claim could not survive summary
judgment because of section 705

(20) (C) (v).

See Nicholson,

297 F.App'x at 160.
At the appropriate future stage of this case,
defendant may raise the issue of whether section 705(20) (C) (v)
excludes plaintiff from coverage under section 504 of the
Rehabilitation Act.
Regarding the remaining elements necessary to state a
claim under section 504,

I conclude that plaintiff alleges

sufficient facts to support such a claim.

- 20 -

Plaintiff pleads sufficient facts to support the

second element of his claim--that he was otherwise qualified to
perform the essential functions of the job.

40

Plaintiff avers sufficient facts to support the third
element of his claim--that he was terminated or prevented from
performing his job. 41

Defendant does not contest that plaintiff

has been terminated or not reinstated to his position as police
officer. 42
Plaintiff also pleads sufficient facts to support the
fourth element of his claim--that defendant City of Bethlehem is
a recipient of federal funds.

43

Finally, defendant does not

dispute that it is a recipient of federal funds.

44

Because plaintiff's factual averments support all the
elements of a discrimination claim under section 504 of the
Rehabilitation Act,

I conclude that plaintiff has sufficiently

stated a claim upon which relief can be granted .

••

See Amended Complaint at 11 4-6. Additionally, in the
February> 9 1 2015 decision by Arbitrator De Treux, successful completion of a
fitness-for-duty examination was the only requirement established for
plaintiff's return to full duty as a police officer.
Id. at 1 14. Because
no other requirements were imposed, it is reasonable to infer that plaintiff
was otherwise qualified to serve as a police officer .

••
••
••
,,

Id. at 11 31, 65 and 70-71 .
See Defendant's Memorandum at pages 2 and 3 .
See Amended Complaint at 11 44-50.
See Motion to Dismiss at 1 7.

- 21 -

Accordingly,

I deny defendant's motion to dismiss

plaintiff's discrimination claim under section 504 of the
Rehabilitation Act pursuant to Rule 12(b) (6)

CONCLUSION
For the reasons expressed above, defendant's Motion to
Dismiss is denied.
Specifically, I deny defendant's motion to the extent
that it seeks to dismiss plaintiff's discrimination claim under
section 504 of the Rehabilitation Act for failure to exhaust
administrative remedies because such exhaustion was not required

here.
Moreover,

I deny defendant's motion to the extent that

it seeks to dismiss plaintiff's discrimination claim against

defendant for failure to state a viable cause of action because
plaintiff has plead facts sufficient to support such a claim.

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