Reynolds v. Commonwealth Of Pennsylvania et al

Filing 126

MEMORANDUM and ORDER denying 84 Plaintiff's Motion for Partial Summary Judgment; and granting Dfts' 85 Motion for Summary Judgment; Clerk of Court is directed to enter judgment and CLOSE this case. Signed by Honorable James M. Munley on 8/5/13 (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
BEVERLY LAMBERSON, as
Administratrix, of the Estate of
Melinda Lamberson Reynolds,
Deceased,
Plaintiff

:
No. 3:09cv1492
:
:
(Judge Munley)
:
:
:
v.
:
:
COMMONWEALTH OF
:
PENNSYLVANIA,
:
PENNSYLVANIA DEPARTMENT OF :
STATE, PENNSYLVANIA BUREAU
:
OF PROFESSIONAL &
:
OCCUPATIONAL AFFAIRS,
:
PENNSYLVANIA DIVISION OF
:
PROFESSIONAL HEALTH
:
MONITORING PROGRAMS,
:
PENNSYLVANIA STATE BOARD OF :
NURSING, BASIL L. MERENDA,
:
LINDA TANZINI AMBROSO,
:
K. STEPHEN ANDERSON,
:
CHRISTOPHER BARTLETT,
:
RAFAELA COLON, KATHLEEN M.
:
DWYER, JUDY A. HALE, SUZANNE :
M. HENDRICKS, JOSEPH J.
:
NAPOLITANO, ANN L. O’SULLIVAN, :
JANET H. SHIELDS and JOANNE L. :
SORENSEN,
:
Defendants
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Before the court are cross-motions for summary judgment. Plaintiff
filed the first motion, which seeks partial summary judgment with respect to
the invalidity of the Methadone Prohibition Policy at issue in this case.
(Doc. 84). Defendants filed the second motion, which contends that no

genuine issues of material fact exist and that they are entitled to judgment
as a matter of law. (Doc. 85). These motions are fully briefed and ripe for
disposition.
Background
This case arises out of Melinda Lamberson Reynolds’ attempts to
challenge the suspension of her license as a registered nurse in the
Commonwealth of Pennsylvania. Reynolds was a licensed practical nurse
(“LPN”) and a registered nurse (“RN”) in the Commonwealth for over fifteen
years. (Doc. 9, Am. Compl. ¶ 18; Doc. 43, Answer ¶ 18). Reynolds
suffered from substance abuse problems, and in 2007, the Pennsylvania
Boar of Nursing suspended her license to practice nursing. (Doc. 9, Am.
Compl. ¶¶ 17, 64; Doc. 43, Answer ¶¶ 17,64). After her license was taken
away, Reynolds initiated the instant action against Defendants
Commonwealth of Pennsylvania, Pennsylvania Department of State,
Pennsylvania Bureau of Professional and Occupational Affairs,
Pennsylvania Division of Professional Health Monitoring Programs,
Pennsylvania State Board of Nursing, Basil L. Merenda, Linda Tanzini
Ambroso, K. Steven Anderson, Christopher Bartlett, Rafaela Colon,
Kathleen M. Dwyer, Judy A. Hale, Suzanne M. Hendricks, Joseph J.
Napolitano, Ann L. O’Sullivan, Janet H. Shields and Joanne L. Sorensen

2

(collectively “defendants”).1 (Doc. 9, Am. Compl.). Plaintiff contends that
she is a qualified individual with a disability because of her drug addiction
and she asserts that defendants revoked her nursing license pursuant to a
policy that violates both the Americans with Disabilities Act, 42 U.S.C. §
12132, et seq., and the Rehabilitation Act, 29 U.S.C. § 701, et seq. The
undisputed material facts as presented by both parties are as follows.2
A. Opioid Addiction and History of Treatment
Reynolds was addicted to “opioid” drugs and used heroin off and on
since the late 1970s.3 (PSOF ¶ 1; DSOF ¶ 2). Addiction to

1

Melinda Lamberson Reynolds initiated this action but passes away
during its pendency. (Doc. 72, Unopposed Mot. for Substitution of Parties).
Beverly Lamberson, as the Administratrix of Melinda Lamberson Reynolds’
estate, succeeded Reynolds as the plaintiff in this matter. (Doc. 73, Order
dated June 7, 2012). To avoid confusion, the court will refer to Melinda
Lamberson Reynolds as “Reynolds” and Beverly Lamberson as “plaintiff.”
2

When examining the undisputed material facts, the court primarily
relied upon plaintiff and defendants’ statements of material facts. (See
Doc. 84-2, Pl.’s Statement of Material Facts (hereinafter “PSOF”); Doc. 86,
Defs.’ Statement of Material Facts (hereinafter “DSOF”)). The court also
examined plaintiff and defendants’ statement of material facts in opposition
to the opposing parties’ statement of facts, plaintiffs’ amended complaint,
defendants’ answer, as well as other appropriate documents in the record.
(See Doc. 9, Am. Compl.; Doc. 43, Answer; Doc. 95, Pl.’s Statement–in
Opp’n to Defs.’ Mot. for Summ. J.–of Material Facts (hereinafter “PSOF in
Opp’n”); Doc. 97, Defs.’ Statement of Material Facts in Opp’n to Pl.’s Mot.
for Partial Summ. J. (hereinafter “DSOF in Opp’n”)).
3

Opioid drugs are defined, for the purposes of this opinion, as
psychoactive substance that works by binding to the body’s opioid
receptors. (PSOF ¶ 1). Opioids include “opiates,” drugs directly derived
from the opium poppy, and other drugs that stimulate the opioid receptors.
3

opioids–whether illicit drugs such as heroin or prescription opioids for use
as analgesics–has been recognized for almost a century to be a chronic
medical condition and not a “bad habit” that can be eliminated given
sufficient motivation. (PSOF ¶ 2). Chronic addiction to opioids is a
physical or mental impairment that substantially limits one or more life
activities. (Id. ¶ 3).
1. Morris County Aftercare Center (1997-2004)
Reynolds received methadone maintenance treatment for her opioid
addiction at Morris County Aftercare Center (“MCAC”), in Randolph, New
Jersey, from approximately October 1997 to February 2004. (Id. ¶ 8;
DSOF ¶ 1). Methadone is useful in treatment of opioid drug dependence
both as a short-term medication to control withdrawal symptoms
(“detoxification”) and as a long-term (“maintenance”) medication to assist
opioid dependent patients to refrain from use of illicit drugs. (PSOF ¶ 4).
Methadone maintenance treatment is extremely effective. (Id. ¶ 6). A
person with chronic opioid drug dependency must often continue to receive
methadone maintenance treatment on a long term basis. (Id. ¶ 7). Clinics
that provide methadone maintenance treatment are subject to exacting
regulatory standards. (Id. ¶ 5; DSOF ¶ 12).
The physician and nurse progress notes from Reynolds’ first visit to
(Id.)
4

MCAC on October 2, 1997 reflect that she used Xanax in addition to
heroin.4 (DSOF ¶¶ 2-3). In a June 4, 2003 doctor’s note, a MCAC
physician recorded, “Benzos given by psychiatrist.” (Id. ¶ 5). This note
also stated that Reynolds was “[a]dvised to try to get off Benzos.” (Id.) On
August 18, 2003, MCAC health providers strongly urged Reynolds to enter
an inpatient detox program for benzodiazepines. (Id.) A note dated
October 6, 2003 states that Reynolds was discharged on September 27,
2003 after successfully completing an eleven day benzodiazepine detox
program at Saint Claire Hospital. (Id. ¶¶ 6-7).
2. New Directions Treatment Services (2004)
On March 29, 2004, Reynolds enrolled in New Directions Treatment
Services (“NDTS”), in Bethlehem, Pennsylvania, where she received
methadone maintenance treatment from March 2004 to July 2010 and
September 2010 to February 2012. (DSOF ¶ 11; PSOF ¶ 8). Monique
Hightower was assigned as Reynolds’ counselor at NDTS. (DSOF ¶¶ 1923).
On April 12, 2004, Hightower assessed Reynolds and noted that she
was vague with her answers, and information. (Id. ¶ 20). Hightower
recorded that Reynolds “seems to be vague when disclosing information

4

Xanax is a trade name for the drug Alprazolam, which is part of the
class of drugs known as benzodiazepines. (PSOF at 17 n.6).
5

regarding her family history and past experiences with drugs. She also
seems to minimize her use and makes light of it. Client is guarded and is
feeling out her therapy session.” (Id.) Hightower completed a
psychological evaluation of Reynolds on April 29, 2004 and identified
“Benzo addiction” as one of her underlying problems. (Id. ¶ 21).
From the time she began treatment with NDTS to the end of 2004,
NDTS staff members cautioned Reynolds against using benzodiazepines
for her anxiety and attempted to help her detox from them. In an October
2004 summary of Reynolds’ progress, Hightower noted that “benzo use is
now being monitored by our program doctor for a successful detox, who is
simultaneously treating her anxiety.” (Id. ¶ 25). In the final summary note
of 2004, dated December 29, 2004, Hightower stated that Reynolds
successfully detoxed from benzodiazepines. (Id. ¶ 26).
From April 1, 2004 through the end of December 2004, Reynolds
submitted to thirty-three drug tests. (Doc. 87-3, NDTS Med. R. at 1777217773). Reynolds tested positive for opiates once on July 1, 2004. (Id. at
17772; DSOF ¶ 13). Reynolds tested positive for benzodiazepines from
the time she began treating with NDTS until September 2004, after which
time she tested negative for benzodiazepines until the final drug test of the
year on December 30, 2004. (Doc. 87-3, NDTS Med. R. at 17772).
3. New Directions Treatment Services (2005)
6

Despite NDTS staff members’ attempts to detox Reynolds from
benzodiazepines, she resumed using them in early 2005. (DSOF ¶¶ 2730). On March 1, 2005, NDTS sent Reynolds a notice stating, “[i]t is our
determination that you are not ready, willing or able to respond to this level
of care. Therefore, beginning on the date of Fri 3/4/05 you will be placed
on and begin a mandatory detox from this program. The detox will last for
21 days followed by a discharge for non-compliance with treatment
expectations.” (Id. ¶ 31). Reynolds appealed the decision to place her on
mandatory detox, and on March 3, 2005, a multi-disciplinary team reversed
the decision and directed Reynolds to Cedar Point Family Services, a
division of NDTS, for treatment of her anxiety disorder. (Id. ¶¶ 32-34).
On March 15, 2005, Reynolds began treatment at Cedar Point Family
Services. (Id. ¶ 35). The initial evaluation form completed on Reynolds’
first day of treatment at Cedar Point Family Services recorded her
symptoms as follows: “Symptoms of anxiety, panic attacks, hyperactivity,
insomnia. Impairments include being less aware in the daytimes, more
groggy. Tired in the afternoon. Has trouble concentering when anxious.
Feels ill and shaky when having panic attacks.” (Id.) This same initial
evaluation form also states that Reynolds’ use of benzodiazepines to
manage anxiety led to her need for mental health services. (Id. ¶ 36).
Cedar Point Family Services and/or NDTS care providers eventually
7

approved Klonapin–a benzodiazepine–for Reynolds. (Id. ¶ 39).
In a file note dated August 17, 2005, Hightower recorded, “I
explained to client her urine [sample drug tests] have been coming back
positive for Xanax and she has been approved for Klonapin only. . . . When
asked about Xanax use client had very little to say.” (Id.) In her next file
note, recorded on August 24, 2005, Hightower wrote, “We continued
discussion regarding unauthorized benzo use. Client reports her liver
doctor[] is prescribing the xanax and she has to take them. . . . Client is
concerned about losing [her] takes outs. . . . she is exhibiting addictive
behaviors by not informing her treating psychiatrist about additional xanax.
. . .”5 (Id. ¶ 40; Doc. 87-3, NDTS Med. R. at 18564). In her August 31,
2005 progress summary, Hightower wrote that “Mrs. Reynolds continues to
remain opiate free. However, client continues to struggle with recurring
benzo use.” (DSOF ¶ 41).
On September 8, 2005, Candice S. Cerracchio of Gastroenterology
Associates, Ltd. wrote a letter to Dr. William Santoro of NDTS to explain
their prescription of Xanax to Reynolds. (Id. ¶ 42; Doc. 87-3, NDTS Med.
R. at 18375-18376). Cerracchio explained that they were unaware that
Reynolds was taking methadone when Xanax was first prescribed to her

5

“Take outs” are doses of methadone a patient can take away from
the clinic. (PSOF in Opp’n ¶ 37).
8

and that Xanax may not be best given Reynolds’ history. (Doc. 87-3,
NDTS Med. R. at 18375). Notwithstanding Cerracchio’s letter, NDTS
revoked Reynolds’ “take out” privileges because she had been taking
Xanax prescribed by a doctor outside of the clinic without first obtaining
NDTS’s permission. (DSOF ¶ 37). Losing “take outs” was a hardship for
Reynolds, and she was increasingly depressed and anxious because she
had to drive to NDTS every day to receive methadone. (Doc. 87-5, Cedar
Point Med. R. at 21100-21101). NDTS physicians eventually approved
Reynolds’ use of Xanax to manage her anxiety; however, as of October
2005, NDTS care providers remained concerned that Reynolds would selfmedicate with family members’ medications when she suffered headaches.
(DSOF ¶¶ 43-44).
Although Reynolds continued to receive methadone maintenance
treatment at NDTS, she was discharged from Cedar Point Family Services
on November 22, 2005. (Id. ¶ 38). Reynolds’ discharge summary form
states that she was discharged because of “non-compliance with appts, no
response to letter inquiring about interest in services,” and it appears that
she had not been at Cedar Point for treatment since September 8, 2005.
(Doc. 87-5, Cedar Point Med. R. at 21051-21052).
Throughout 2005, Reynolds submitted to thirty-six drug tests. (Doc.
87-3, NDTS Med. R. at 17773-17775). Reynolds tested positive for
9

benzodiazepines in the first eleven drug tests. (Id.) The final twenty-two
drug tests Reynolds submitted to in 2005, covering the period from March
24 to December 15, came back negative for unapproved substances. (Id.)
4. New Directions Treatment Services (2006-2008)
Reynolds continued to receive methadone maintenance treatment at
NDTS from 2006 through 2008. (Id. at 17775-17778). Reynolds also
continued to submit herself to regular drug screens during this time. (Id.)
Reynolds’ tested positive for unauthorized drugs four times out of the
approximately seventy-five urine samples she submitted from January
2006 to December 2008. (Id. at 17775-17778). Reynolds tested positive
for cocaine on August 2, 2007, August 16, 2007 and September 13, 2007.
(Id. at 17776). Additionally, Reynolds tested positive for opiates on July
10, 2008. (Id. at 17777).
B. PA Department of State Complaint Against Reynolds (2005)
Professional licensing in Pennsylvania, including the licensing of
nurses, is administered by Defendant Pennsylvania Department of State
(“DoS”). (PSOF ¶ 9). The DoS consists of a number of agencies, such as
Defendant Pennsylvania Bureau of Professional and Occupational Affairs
(“BPOA”), Defendant Pennsylvania Division of Professional Health
Monitoring Programs (“PHMP”) and the Pennsylvania Board of Nursing
(“BoN”), that regulate and administer certain licensed professions. (Id. ¶
10

11). The DoS receives federal financial assistance. (Id. ¶ 10).
On February 18, 2005, the complaints office of the DoS received a
complaint from Reynolds’ then employer, InteliStaf Healthcare. (DSOF ¶
47). The complaint letter states that, while working at a long-term care
facility in Easton, Pennsylvania, Reynolds tested positive for
benzodiazepines. (Id.) The drug test was requested because there were
incidents in which Reynolds “occasionally nodded off” and because “her
charting was illegible, incorrect, or missing altogether.”6 (Id. ¶ 49). The
DoS complaints office forwarded the February 18, 2005 complaint letter to
PHMP on February 24, 2005. (Id. ¶ 50).
1. Reynolds’ Involvement with PHMP
PHMP was formerly known as the “Impaired Professionals Program,”
and it is currently a division of BPOA. (PSOF ¶ 12; DSOF ¶ 45). PHMP
provides a means for licensed professionals who suffer from a physical or
mental impairment, such as chemical dependency, to be directed to
appropriate treatment and receive monitoring to ensure that they can safely
practice their licensed profession. (PSOF ¶ 14; DSOF ¶ 45). PHMP
includes two programs, the Voluntary Recovery Program (“VRP”) and the
6

Plaintiff contends that Reynolds appeared exhausted at work in
February 2005 because she spent the previous night at her mother’s
house and took her mother’s prescription sleep medication–the
benzodiazepine Restoril–instead of her prescribed medication–Ambien.
(Doc. 9, Am. Compl. ¶¶ 34-35; PSOF in Opp’n ¶ 84).
11

Disciplinary Monitoring Unit (“DMU”). (PSOF ¶ 14; DSOF ¶ 45).
PHMP operates the VRP for individual licensees who are suffering
from a physical or mental impairment. (PSOF ¶ 15). VRP participants are
monitored according to an agreement entered into between the participant
and the PHMP. (DSOF ¶ 46). PHMP operates the DMU for licensees who
are subject to a consent agreement or order by one of the licensing board,
such as the BoN. (Id.; PSOF ¶ 15). DMU licensees are strictly monitored
according to the terms of the consent agreement or licensing board order.
(DSOF ¶ 46). The same PHMP employees are responsible for both VRP
cases and DMU cases. (PSOF ¶ 16).
Throughout her interactions with PHMP, Pearl H. Harris (“Harris”)
was Reynolds’ case manager and Kevin Knipe (“Knipe”) served as the
case supervisor. (Id. ¶ 13). On March 1, 2005, Harris sent Reynolds a
letter informing her that she could enroll in VRP and receive treatment
without the need for public action by the BoN. (DSOF ¶ 51). After
receiving the letter, Reynolds contacted Harris and expressed her interest
in enrolling in VRP and receiving an assessment at A Better Today
(hereinafter “ABT”)–an alcohol and drug treatment facility. (Id. ¶ 53).
On June 14, 2005, Reynolds received a drug and alcohol evaluation
at ABT. (Id. ¶ 54). ABT deemed outpatient treatment appropriate, and
from June 14, 2005 to September 7, 2005, Reynolds attended six of
12

sixteen scheduled treatment sessions. (Id.) On October 6, 2005,
Reynolds completed a Participation Cooperation form and submitted a
verified statement in which she stated that her chemical dependency
and/or abuse was limited to taking her mother’s Restoril.7 (Id. ¶¶ 55-56).
On October 7, 2005, Reynolds’ VRP file had been closed and forwarded to
BPOA for review regarding the initiation of formal public disciplinary
procedures. (Id. ¶ 57). On November 16, 2005, Harris received a letter
from ABT, which advised her that “Ms. Reynolds had been Therapeutically
Discharged as of October 28, 2005 due to non-compliance with treatment
attendance requirements.” (Id. ¶ 58).
2. Evaluation by Dr. Woody
On May 22, 2006, the BoN order that Reynolds be evaluated by Dr.
George E. Woody, a nationally respected addiction specialist. (DSOF ¶
62; PSOF ¶¶ 30-31). Woody evaluated Reynolds on July 20, 2006 and
subsequently issued a report dated August 30, 2006. (PSOF ¶¶ 31-32).
Dr. Woody’s report concludes with the following assessment:
In view of her positive response to methadone maintenance
over a period of at least 1.5 years; the absence of current
unprescribed drug use by history and a review of the medical
records, the psychiatric examination and urine test results that
7

In the October 6, 2005 document, Reynolds stated that she is
currently prescribed the following medications: Copegus, Pegasys,
Epogen, Restoril and Xanax. (DSOF ¶ 60). Reynolds did not disclose her
history of drug abuse or current methadone use. (Id. ¶ 61).
13

were positive only for drugs that are currently prescribed
(methadone, benzodiazepine) and the report from a recent
employer that her work has been good during a period of time
that she has been on methadone, I think she is able to practice
nursing with the requisite skill and safety provided she is
monitored for a time to be determined by the Board. She
expressed an interest in participating in the VRP if that is
possible.
(Id. ¶ 70; DSOF ¶ 63). The section of the report entitled “History of the
Problem as Provided by Ms. Reynolds and the Medical Records,” does not
mention Reynolds’ prior treatment at Saint Claire’s Hospital or MCAC.
(DSOF ¶ 64). With respect to her heroin use, Dr. Woody’s report simply
states that Reynolds “had been taking Percocet regularly and also had
‘sniffed’ heroin and experienced a runny nose and other mild withdrawal
symptoms on days she did not take opioids.” (Id.; Dr. Woody’s Med. R. at
17036-17040).
3. Consent Agreement and DMU Monitoring
On October 5, 2006, the BPOA, on behalf of the Commonwealth of
Pennsylvania, filed an order to show cause as to why Reynolds’ license
should not be suspended, revoked, or otherwise restricted in light of the
fact she was not being monitored as Dr. Woody deemed necessary.
(DSOF ¶ 65). Reynolds never answered the order to show cause, rather,
she settled the BoN proceedings against her by entering into a consent
agreement and order. (Id. ¶ 66).

14

Under the terms of the consent agreement, Reynolds was permitted
to continue to practice on a probationary status provided that she complied
with the terms of the agreement. (Id.) The consent agreement provided
that Reynolds’ license would be suspended for up to three years if there
were a finding that she violated the terms of the agreement. (Id.; DSOF ¶
68). The terms of the consent agreement also provided that Reynolds (1)
obtain written verification of support group attendance, (2) submit to
random drug tests as directed by PHMP, (3) arrange to have forwarded to
PHMP a copy of her evaluation by a PHMP-approved provider, and (4) pay
all costs incurred in complying with the terms of the consent agreement.
(Id. ¶ 67). Reynolds, who was represented by counsel, signed the
agreement, which the BoN approved on January 4, 2007. (DSOF ¶ 66).
Harris again referred Reynolds to ABT for an evaluation. (Id. ¶ 72).
John Siery, an employee of ABT, evaluated Reynolds on January 15,
2007. (PSOF ¶ 36). Siery, however, never prepared a contemporaneous
written report concerning Reynolds’ evaluation and retired subsequent to
his evaluation of Reynolds. (Id. ¶¶ 37-38).
On January 22, 2007, Harris sent Reynolds a letter notifying her that
the DMU had been assigned to monitor her compliance with the consent
agreement. (DSOF ¶ 69). The January 22, 2007 letter included a DMU
personal data sheet, PHMP’s support group attendance sheets and
15

information relative to enrolling in PHMP’s drug testing program. (Id.) On
February 2, 2007, Reynolds signed the DMU’s Personal Data Sheet and
verified that the statements made in it were true. (Id. ¶ 70).
Notwithstanding this verification, Reynolds falsely denied that she was the
subject of any current or past criminal prosecution and stated that she
started methadone maintenance in 2004, instead of the actual starting year
of 1997. (Id. ¶ 71). Reynolds also failed to provide information about her
prior heroin use on her personal data sheet. (Id.)
On July 11, 2007, nearly six months after her evaluation by Siery,
Vincent Carolan, another ABT employee, sent a letter to Harris. (Id. ¶ 73;
PSOF ¶ 38). In his letter, Carolan identified Reynolds’ current diagnosis as
opioid dependence and benzodiazepine dependence. (DSOF ¶ 73).
Carolan’s letter concluded with the following assessment:
Based on the physiological nature of her current ongoing
dependence to Xanax and Methadone, Ms. Reynolds was
directed to enter into a level 3A Medical Detoxification Unit
before being admitted to out-patient therapy with A Better
Today. Ms. Reynolds agreed to enter a facility arranged for by
A Better Today. Although this process was agreed upon and
facilitated, Ms Reynolds failed to follow through and made
repeated calls to ABT in which she sounded impaired. Ms.
Reynolds and ABT discontinued the unsuccessful clinical
process on 1/31/07.
(Id. ¶ 74; PSOF ¶ 38). Defendants’ expert, Dr. Penelope Ziegler,
described Carolan’s recommended approach of rapid detoxification as

16

inappropriate because such an approach would subject Reynolds, who
was receiving 150 mg of methadone per day, to “extreme and unnecessary
suffering.” (PSOF ¶¶ 39-41).
4. The PHMP Methadone Policy
Since approximately 1993, PHMP has maintained a document known
as “standard operating procedures” or “SOPs” which contains standards
that are applied by PHMP staff members in their interactions with
professional licensees who suffer from a physical or mental impairment.
(Id. ¶ 17). PHMP follows the SOP provisions relating to methadone both
for licensees who are participating in the VRP and those subject to the
DMU. (Id. ¶ 18).
From 1993 until at least June 2008, the SOPs included a section
entitled “Eligibility, Licensees on Methadone Maintenance.” (Id. ¶ 20).
This section provided, in relevant part, as follows:
[A]ny licensee assessed by a PHMP-approved provider [as] in
need of ongoing methadone maintenance will be declared
ineligible to participate in the PHMP. Such licensees will be
referred to the Board, with the recommendation that the Board
consider any individual requiring maintenance on methadone
as unfit to practice.
* * *
If treatment alternatives to methadone maintenance are
offered/recommended by the PHMP-approved provider, the
licensee must agree to medically-supervised withdrawal from
methadone within a time-frame established by the PHMPapproved provider (in consultation, whenever possible, with the
methadone-administering provider) and the PHMP.
17

(Id.) Plaintiff’s expert witness, Dr. Robert Newman, and defendants’ expert
witness, Dr. Penelope Ziegler, both criticize the PHMP’s 1993-2008
maintenance policy as ill advised. (Id. ¶¶ 28-29).
5. BoN Proceedings
On March 5, 2007, Harris sent Reynolds a letter, in which she
notified Reynolds of four instances of non-compliance with the BoN
consent agreement and order. (DSOF ¶ 75). These instances of noncompliance included Reynolds’ failure to: (1) provide release of
information and other related materials in reference to her evaluation and
treatment, (2) set-up and provide Random Observed Bodyfluid Screens
(“ROBS”), (3) provide support group verification sheets since entering the
program in January 2007 and (4) ensure that written reports were sent to
the PHMP by her employer and treatment providers. (Id.) On April 27,
2007, Harris sent Reynolds a letter notifying her that her violations of the
consent order were reported to the DoS Prosecution Division. (Id. ¶ 76).
On May 9, 2007, the DoS Prosecution Division submitted a petition
for appropriate relief to the Probable Cause Screening Committee of the
BoN. (Id. ¶ 77). Upon receiving the petition, the Probable Cause
Screening Committee issued a preliminary order suspending Reynolds’
license to practice nursing subject to her right to file an answer and request
a hearing. (Id. ¶ 79).
18

Reynolds, through her attorney, answered the petition on May 24,
2007, in which she asserted that ABT’s recommendation for rapid
detoxification was medically inadvisable. (Id. ¶ 80). A BoN hearing
examiner held a hearing on Reynolds’ case on July 11, 2007. (Id.) The
parties stipulated that Reynolds violated the consent agreement, and
Reynolds used the hearing as an opportunity to present mitigating
evidence in an attempt to preserve her license. (Id. ¶ 85; Doc. 87-8,
PHMP File at 983). At the board hearing, Reynolds testified that she
struggled to work the night shift at her first job as a registered nurse at the
Pocono Medical Center. (DSOF ¶ 81). Reynolds also testified before the
hearing examiner that she was taking methadone for menstrual pain
management, and she did not testify about her twenty-year opioid
addiction. (Id. ¶ 82). During her hearing testimony, Reynolds proffered
that the proceedings against her were initiated after she took Restoril (a
benzodiazepine) in February 2005 to help her sleep while at her mother’s
house.8 (Id. ¶ 83). Furthermore, Reynolds stated that she would be
committed to being detoxed from methadone if she had no choice and was
forced to choose between methadone and her career. (See Doc. 87-9,
Nursing Bd. Proceedings at 22360).
8

The parties dispute whether it would have been possible for
Reynolds to test positive for Restoril two days after she allegedly took it.
(DSOF ¶ 84; PSOF in Opp’n ¶ 84).
19

On August 10, 2007, the hearing examiner issued a decision and
proposed order in this matter. (Doc. 87-8, PHMP File at 982-1012). The
hearing examiner found that Reynolds violated the consent agreement
because she (1) failed to enroll in First Lab (random unannounced and
observed body fluid toxicology screens), (2) failed to submit monthly
verification that she was attending support group meetings, and (3) failed
to comply with her evaluation treatment recommendation that she enter
inpatient treatment and be weaned from methadone. (DSOF ¶ 86). The
hearing examiner ordered that Reynolds’ license to practice nursing be
suspended for three years; however, the hearing examiner ordered that the
suspension be stayed once Reynolds provided BoN with an evaluation
from an approved treatment provider that she can safely practice nursing.
(Id. ¶ 87). Thus, under the provisions of the proposed order, Reynolds
could return to practice as a nurse even if she still received methadone
maintenance treatments, so long as she received the clearance to do so by
a PHMP-approved provider. (PSOF ¶ 51; DSOF in Opp’n ¶ 51).
6. Suspension of Reynolds’ License
Neither party filed exceptions to the hearing examiner’s proposed
order, and the BoN adopted it as their final order on September 18, 2007.
(DSOF ¶ 88). Since the date of the BoN decision, Reynolds has not
provided the BoN with an evaluation from an approved treatment provider
20

that she is safe to practice nursing. (Id. ¶ 90). Plaintiff asserts, however,
that Reynolds was never informed that she could obtain an evaluation from
a provider other than ABT. (PSOF in Opp’n ¶ 91).
In February 2008, Dr. William Santoro, an addiction medicine
specialist who treated Reynolds at NDTS, contacted ABT to discuss
Reynolds’ treatment and to express concern about the recommendation
that Reynolds be rapidly withdrawn from methadone. (PSOF ¶¶ 42-43).
After speaking with the ABT counselor that met with Reynolds, Dr. Santoro
wrote a letter to Harris dated February 15, 2008. (Id. ¶ 44). In this letter,
Dr. Santoro expressed his concern regarding ABT’s bias against treating
addictions with medication and specifically against treating opioid addiction
with methadone. (Id.) Dr. Santoro requested that Reynolds be sent to
another program that would consider all scientifically proven methods of
treatment. (Id.) Although she received Dr. Santoro’s letter, Harris testified
that she never spoke to him or otherwise responded to it because there
was “no release of information in the file for Dr. Santoro.”9 (Id. ¶ 46).

9

Harris allegedly searched for a release for PHMP to share
information about Reynolds with Dr. Santoro, but, after she was unable to
locate a release in the file, Harris turned Dr. Santoro’s letter over to Knipe.
(DSOF ¶ 89; DSOF in Opp’n ¶ 46). Despite Harris’ inability to locate a
release, NDTS records reveal that Reynolds signed a release dated
December 27, 2007, which authorizes PHMP to disclose information to
NDTS. (PSOF in Opp’n ¶ 89). Moreover, Harris did not make an effort to
obtain a release to speak to Dr. Santoro. (PSOF ¶ 47).
21

In March 2008, Harris sent a letter to Reynolds that stated that her
PHMP file had been closed. (Id. ¶ 52). The letter also stated that a
precondition for re-opening Reynolds’ PHMP file was for ABT to send
PHMP a statement “indicating that you have fully and completely complied
and cooperated with recommendations to enter inpatient treatment to be
weaned from methadone.” (Id. ¶ 52).
C. Notable Events after Reynolds’ License was Suspended
On June 26, 2009, Reynolds was arrested for driving under the
influence of a controlled substance, and on November 16, 2009, she was
admitted to an ARD program and her driver’s license was suspended for
sixty days. (DSOF ¶ 94). On December 5, 2009, Reynolds was arrested
for driving with a suspended license. (Id. ¶ 95). On July 20, 2010,
Reynolds pled guilty to that charge and was sentenced by the Monroe
County Court of Common Pleas to sixty days incarceration. (Id.) While
she was jailed, Reynolds was not permitted to receive methadone, and she
experienced the adverse effects of rapid opioid detoxification. (PSOF in
Opp’n ¶ 96). Reynolds completed her sentence on September 17, 2010.
(DSOF ¶ 95).
The day after her release from jail, Reynolds was found unresponsive
in her home by a neighbor. (Id. ¶ 96). The Pocono Mountain Regional
EMS was dispatched to Reynolds’ house, and, after treatment by the EMS
22

team, Reynolds regained consciousness. (Id.) Reynolds initially denied
use of narcotics, but, according to the EMS report, she eventually stated
that she had taken Methadone and Xanax within twenty minutes of each
other earlier in the evening.10 (Id.) Reynolds returned to NDTS on
September 23, 2010, and she was restarted on methadone maintenance
treatment at a minimal starting dose. (PSOF in Opp’n ¶ 96).
On June 20, 2011, Reynolds was involved in a car accident and
taken to St. Luke’s Hospital. (DSOF ¶ 97). The assessment of the ER
physical was that Reynolds suffered from an altered mental status. (Id.)
An initial drug screen showed that she tested positive for benzodiazepines,
methadone and tricyclic antidepressants. (Id. ¶ 98). The attending
physician noted that Reynolds appeared to be lethargic. (Id.)
On August 19, 2011, Reynolds was arrested for driving under the
influence of a controlled substance and driving while operator’s privileges
were suspended or revoked. (Id. ¶ 99). A toxicology report showed the
presence of, among other drugs, diazepam (Valium), Alprazolam (Xanax)
and methadone. (Id.)
NDTS records through the end of November 2011 demonstrate
several instances in which plaintiff was lethargic, spoke with slurred

10

The September 18, 2010 incident occurred after Reynolds took a
pre-incarceration “take home” dose of methadone. (PSOF in Opp’n ¶ 96).
23

speech and/or purchased pills from other patients. (Id. ¶¶ 100-106). In
fact, on November 28, 2011, Reynolds appeared in such a heavily sedated
state that NDTS staff members called EMS to take her to the hospital. (Id.
¶ 107). During this time period, Reynolds was advised by NDTS staff
members to enter an inpatient treatment program for benzodiazepine
detoxification because of the problems she was experiencing. (PSOF in
Opp’n ¶¶ 101-107). Reynolds was treated at the Reading Hospital and
Medical Center Detoxification and Rehabilitation Unit from December 13,
2011 to January 9, 2012, where they “successfully” weaned her from
benzodiazepines. (Id.)
On February 18, 2012, Reynolds was found lying on the side of a
road. (DSOF ¶ 108). She was transported to the Pocono Medical Center
and was pronounced dead. (Id.) The autopsy report identifies the cause
of death as mixed substance toxicity and hypothermia. (Id.) In a blood test
performed forty-nine hours after Reynolds was pronounced dead, medical
examiners found methadone, a methadone metabolite called EDDP and
Xanax. (Id.; PSOF in Opp’n ¶ 108). The autopsy report also records,
“[f]amily states deceased had a previous incident, approx. 3 months ago,
where she was found along the road, unresponsive, at which time she was
hospitalized at the ICU.” (DSOF ¶ 108).

24

D. Procedural History
Reynolds initiated the instant action on August 4, 2009. (Doc. 1,
Compl.). Reynolds amended the complaint on November 4, 2009. (Doc.
9, Am. Compl.) The amended complaint raises three counts related to
defendants’ alleged violation of Title II of the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12132,et seq., and Section 504 of the
Rehabilitation Act, (“RA”), 29 U.S.C. § 794. Count one seeks a declaration
from the court that defendants’ policy of excluding from licensing nurses
who are in a methadone maintenance program violates the ADA and the
RA. Count two seeks injunctive relief for this alleged violation of federal
anti-discrimination law. Count three seeks damages for the harm Reynolds
suffered.
Defendants responded to the amended complaint with a motion to
dismiss. (Doc. 13, Mot. to Dismiss). The court denied the motion to
dismiss in part and granted it in part. (Doc. 36, Mem. & Order dated June
21, 2010). Specifically, the court granted defendants’ motion to dismiss
with respect to the claims for damages against the individual defendants
and denied the motion in all other respects.
Defendants answered the amended complaint on August 30, 2010,
and on October 26, 2010, the court held a case management conference.
(Doc. 43, Answer; Doc. 47, Case Management Order). After approximately
25

two years of discovery, the parties filed the instant cross-motions for
summary judgment. The parties fully briefed the cross-motions for
summary judgment and the court heard oral arguments in this matter on
May 23, 2013, thus bringing this case to its current posture.
Jurisdiction
Plaintiff asserts claims pursuant to the ADA, 42 U.S.C. §§ 12101, et
seq., and the RA, 29 U.S.C. § 794. The court has jurisdiction pursuant to
28 U.S.C. § 1331, which provides that “[t]he district courts shall have
original jurisdiction of all civil actions arising under the Constitution, laws,
or treaties of the United States.”
Standard of Review
Granting summary judgment is proper “‘if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law.’”
Knabe v. Boury Corp., 114 F.3d 407, 410 n.4 (3d Cir. 1997) (quoting FED.
R. CIV. P. 56(c)). “[T]his standard provides that the mere existence of
some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
26

In considering a motion for summary judgment, the court must
examine the facts in the light most favorable to the party opposing the
motion. Int’l Raw Materials, Ltd. v. Stauffer Chem. Co., 898 F.2d 946, 949
(3d Cir. 1990). The burden is on the moving party to demonstrate that the
evidence is such that a reasonable jury could not return a verdict for the
non-moving party. See Anderson, 477 U.S. at 248. A fact is material
when it might affect the outcome of the suit under the governing law. Id.
Where the non-moving party will bear the burden of proof at trial, the party
moving for summary judgment may meet its burden by establishing that the
evidentiary materials of record, if reduced to admissible evidence, would be
insufficient to carry the nonmovant’s burden of proof at trial. Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies its
burden, the burden shifts to the non-moving party, who must go beyond its
pleadings, and designate specific facts by the use of affidavits,
depositions, admissions, or answers to interrogatories demonstrating a
genuine issue for trial. Id. at 324; see also Goode v. Nash, 241 F. App’x
868 (3d Cir. 2007) (“[A]lthough the party opposing summary judgment is
entitled to ‘the benefit of all factual inferences in the court’s consideration
of a motion for summary judgment, the nonmoving party must point to
some evidence in the record that creates a genuine issue of material fact,’
and ‘cannot rest solely on assertions made in the pleadings, legal
27

memorandum, or oral argument.’” (quoting Berckeley Inv. Grp., Ltd. v.
Colkitt, 455 F.3d 195, 201 (3d Cir. 2006))).
Discussion
At the close of discovery, the parties filed cross-motions for summary
judgment. In her motion, plaintiff contends that partial summary judgment
is appropriate with respect to the validity of the methadone policy as it
applied to Reynolds. In their motion, defendants maintain that they are
entitled to summary judgment because plaintiff is unable to meet her
burden at trial as a matter of law. For the following reasons, the court
agrees with defendant and will grant their summary judgment motion.
The court’s analysis of plaintiff’s claims under Title II of the ADA and
Section 504 of the RA are similar. See New Directions Treatment Servs. v.
City of Reading, 490 F.3d 293, 302 (3d Cir. 2007). Title II of the ADA
provides that “no qualified individual with a disability shall, by reason of
such disability, be excluded from participation in or be denied the benefits
of the services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity.” 42 U.S.C. § 12132 (emphasis added).
Similarly, Section 504 of the RA provides that “[n]o otherwise qualified
individual with a disability . . . . shall, solely by reason of her or his
disability, be excluded from the participation in, be denied benefits of, or
be subjected to discrimination under any program or activity receiving
28

federal financial assistance . . . .” 29 U.S.C. § 794(a) (emphasis added).
Thus, “[w]ith the exception of the [federal financial assistance] element,
which is not pertinent to a claim brought under the ADA, the elements of a
claim under Titile II of the ADA are interchangeable with the elements of a
claim under Section 504.” Inmates of Allegheny Cnty. Jail v. Wecht, 93
F.3d 1124, 1136 (3d Cir. 1996).
Although the elements of a Title II ADA claim and a Section 504 RA
claim are largely the same, there is a variation in the causation provisions
of each statute. Specifically, the ADA precludes government discrimination
“by reason of” an individual’s disability while the RA prohibits such conduct
“solely by reason of” an individual’s disability. See 29 U.S.C. § 794(a); 42
U.S.C. § 12132. The omission of the word “solely” in the ADA indicates
that Congress intended for this statute to have a less stringent causation
requirement compared to Section 504. See Maples v. Univ. of Tex. Med.
Branch at Galveston, No. 12-41226, 2013 WL 1777501, at *2 n.2 (5th Cir.
Apr. 26, 2013).
With respect to the ADA’s less stringent causation requirement, the
Third Circuit Court of Appeals has held that “the ADA’s ‘by reason of’
language requires” the plaintiff to “demonstrate that, but for the failure to
accommodate, he would not be deprived of the benefit he seeks.”
Muhammad v. Court of Common Pleas of Allegheny Cnty., 483 F. App’x
29

759, 764 (3d Cir. 2012). In fact, courts are prohibited from applying mixedmotive analysis in lieu of requiring the plaintiff to establish but-for causation
unless the particular anti-discrimination statute permits otherwise.11 See
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175-76 (2009).
In Gross, the United States Supreme Court held that mixed-motive
claims are not authorized by the Age Discrimination in Employment Act
(“ADEA”) because the ADEA lacks the language found in Title VII
expressly recognizing such claims. See id. Courts have found that the
ADA, like the ADEA, does not have statutory language that expressly
permits mixed-motive analysis and that plaintiffs must prove but-for cause
if they seek to prevail in an ADA claim. See Cottrell v. Good Wheels, No.
08-1738, 2011 WL 900038, at *6 n.5 (D.N.J. Mar. 15, 2011) (citing
Warshaw v. Concentra Health Servs., 719 F. Supp. 2d 484, 502 (E.D. Pa.
2010)); see also Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 962
(7th Cir. 2010) (“[A] plaintiff complaining of discriminatory discharge under
the ADA must show that his or her employer would not have fired him but
for his actual or perceived disability; proof of mixed motives will not
suffice.”). Accordingly, to satisfy the ADA’s causation requirement, the
plaintiff must establish that the exclusion or denial of a government benefit
11

“Mixed-Motive Analysis” in a discrimination case is when the
evidence of the case shows that the complained of action was based, in
part, on a nondiscriminatory reason and in part on a discriminatory reason.
30

or service would not have occurred absent the plaintiff’s disability or the
defendant’s failure to provide a reasonable accommodation.
In the instant case, Reynolds’ nursing license is the government
benefit at issue. (See Compl. ¶¶ 19, 77, 91). Plaintiff further claims that
defendants discriminated against Reynolds’ disability, as a recovering drug
addict, by following a methadone policy that opposed methadone
maintenance treatment for licensees.12 (See id.). Although plaintiff seeks
to have the court treat this case as if it is about nothing other than PHMP’s
methadone policy, the facts require otherwise. For the following reasons, a
reasonable jury could not find that the methadone policy was the but-for
cause of the loss of Reynolds’ license; thus, plaintiff would be unable to
meet her burden at trial with respect to the less stringent ADA causation
requirement or the more exacting RA standard.
A. The Undisputed Facts Demonstrate that the BoN Order
Suspending Reynolds’ License was Based on Grounds Other
than her Methadone Maintenance Treatment
Reynolds’ license was suspended because she violated several
provisions of the consent agreement, not merely because she failed to

12

Under both the ADA and RA, drug addiction is included within the
meaning of disability, where the impairment is not due to the “current illegal
use of drugs.” 28 C.F.R. § 35.104. The illegal use of drugs “does not
include the use of a drug taken under supervision by a licensed health care
professional, or other uses authorized by the Controlled Substances Act or
other provisions of Federal law.” Id.
31

detox from methadone. The parties agree that Reynolds, in response to
an order to show cause, entered into a consent agreement with
defendants. (DSOF ¶¶ 65-66; PSOF ¶¶ 65-66). In addition to requiring
that Reynolds comply with the treatment recommendations of a PHMPapproved provider, the consent agreement also required written verification
of support group attendance as well as random drug screening. (See Doc.
87, Nursing Bd. Proceedings at 22391-22410).
When charged with violations of the consent agreement, Reynolds
requested a hearing, at which she told the hearing examiner that she did
not comply with ABT’s treatment recommendations because they required
her to stop taking methadone. (Id. at 22366). Reynolds, however,
admitted that she violated other provisions of the consent agreement for
reasons unrelated to methadone maintenance treatment. (Id. at 2236422365). Reynolds admitted that she did not comply with PHMP’s drug
testing program because she did not want to pay for it, even though she
knew she was obligated to pay for such tests when she entered into the
consent agreement. (Id.) Reynolds also conceded that she did not
regularly attend support group meetings because of changes in her
personal life. (Id. at 22364). Additionally, Reynolds failed to provide
proper documentation of the meetings she attended because she “didn’t
per se see an attendance sheet” when such a sheet was mailed to her.
32

(Id.)
Given her admissions, the hearing examiner unsurprisingly found
Reynolds in violation of the consent agreement because she (1) failed to
enroll in drug testing, (2) failed to submit monthly verification of the support
group meetings and (3) failed to follow the recommendations of her
treatment provider. (See Doc. 87-8, PHMP File at 982-1012). Receiving
no objections to the hearing examiner’s findings and proposed order from
Reynolds, the BoN ordered Reynolds’ license suspended on September
18, 2007. (DSOF ¶ 88).
A closer review of the hearing officer’s first two findings pertaining to
drug testing and support groups reveals that they are unrelated to
methadone. Thus, even if Reynolds had successfully detoxed from
methadone as instructed by ABT, she nonetheless would have been in
violation of the consent order, and these violations would have been
sufficient to maintain BoN proceedings against Reynolds’ license. (See
Doc. 84-5, App. Tab B, Ziegler Report at 11).
Even plaintiff acknowledges that the decision to suspend Reynolds’
license was based, in part, on violations of portions of the consent
agreement that are independent of those provisions related to treatment
recommendations. Plaintiff, however, qualifies her acceptance of this fact
and asserts, without citing to any evidence, that “all of these other alleged
33

grounds followed from her decision not to proceed with ‘A Better Today.’”
The court cannot consider such unsupported conjecture in evaluating this
motion for summary judgment. See Colkit, 455 F.3d at 201. Therefore,
the court finds that the undisputed record establishes that the decision to
suspend plaintiff was premised on additional grounds aside from her failure
to comply with ABT’s treatment recommendations.
B. No Triable Issues of Fact Exist to Establish that the
Methadone Maintenance Policy was the But-For Cause of the
Suspension of Reynolds’ Nursing License
As the court discussed above, the undisputed facts of record
establish that Reynolds was suspended for other grounds aside from her
failure to comply with ABT’s treatment recommendations. Moreover, the
evidence of record reveals that these other non-compliant behaviors, such
as her failure to enroll in drug testing and attend support groups, would, in
and of themselves, be sufficient for a referral to the BoN for violating the
terms of her consent order. Given these facts, and in the absence of a
genuine issue of material fact to the contrary, the only conclusion the court
can reach at this stage in the litigation is that the methadone maintenance
policy was not the but-for cause of Reynolds’ suspension. Thus, the
question before the court is whether a genuine issue of material fact exists
with respect to whether the methadone maintenance policy was the
dispositive factor in the decision to suspend Reynolds’ license.
34

Plaintiff presents several legal and factual arguments in support of
her contention that the PHMP’s methadone maintenance policy was the
but-for cause of Reynolds’ suspension. Although neither the facts nor the
law support plaintiff’s position, the court will nonetheless examine plaintiff’s
arguments in turn.
Plaintiff first contends that Reynolds should be legally excused from
the consent agreement’s requirements. Specifically, in a post-argument
letter to the court, plaintiff contends that “Reynolds was not required to take
actions (such as enrolling for additional drug screens or attending support
group meetings) that would have been futile because of the Methadone
Maintenance Policy.” (Doc. 124, Letter dated May 29, 2013). In support of
this allegation, plaintiff cites Davoll v. Webb, 194 F.3d 1116 (10th Cir.
1999). In Davoll, the plaintiffs, disabled Denver Police Department officers,
were aware of a policy that prohibited the transfer of police officers to
department jobs that did not require officers to fire weapons and make
arrests. See id. at 1133. When this case was appealed, the Tenth Circuit
Court of Appeals affirmed the district court’s instruction that an employee
need not request a reasonable accommodation under the ADA if the
employer has a policy forbidding that reasonable accommodation and the
employee has knowledge of this policy. See id. at 1132-33 (“If a disabled
employee actually knows of an employer’s discriminatory policy against
35

reasonable accommodation, he need not ignore the policy and subject
himself ‘to personal rebuffs’ by making a request that will surely be
declined.”).
In Davoll, the futile gesture–requesting a transfer the plaintiffs knew
would be denied–was directly related to the discriminatory policy. See id.
at 1132-33. In this case, however, the conduct at issue–Reynolds’ failure
to submit to drug screening and support group meetings–is unrelated to
the allegedly discriminatory methadone maintenance policy. The
monitoring requirements contained in the consent agreement constitute an
independent obligation plaintiff agreed to abide by when she signed the
consent agreement. Accordingly, the futile gestures doctrine does not
apply to this case.13

13

The court also disagrees with plaintiff’s insinuations that minimize
the significance of Reynolds’ failure to comply with the drug screening and
support group requirements contained in the consent agreement. The
court notes that the monitoring requirements Reynolds agreed to amount
to more than mere gestures, and it is PHMP’s mission to monitor
professionals suffering from physical or mental impairments to ensure that
they can safely practice their professions. By failing to enroll in toxicology
screens and drug testing, PHMP could not know whether or not Reynolds,
an at-risk professional on probation, was impaired and unable to safely
practice nursing because of drug use. Similarly, by failing to provide
documentation of support group attendance, PHMP could not know
whether Reynolds was receiving part of the treatment envisioned in the
consent agreement. In fact, with respect to the need for Reynolds to be
monitored, Dr. Woody, whose 2006 evaluation plaintiff heralds as evidence
that Reynolds could have practiced nursing safely, recognized the
36

Plaintiff also contended at oral argument that two pieces of evidence
in the record created a triable issue of material fact with respect to whether
the methadone maintenance policy was the but-for cause of Reynolds’
suspension. Plaintiff first pointed to Harris’ March 13, 2008 letter in which
she notified Reynolds that her PHMP file had been closed. (Doc. 84-9,
App. Tab F, Harris Letter dated Mar. 13, 2008). This letter is administrative
in nature and was sent to Reynolds months after the BoN revoked her
license. It is undisputed that this letter did not affect the status of
Reynolds’ nursing license. This letter also fails to support the conclusion
that the drug testing and support group requirements of the consent
agreement are somehow pretextual.
Rather, plaintiff quotes the portion of Harris’ March 13, 2008 letter
that states as follows:
once our office receives a written statement from your PHMPApproved Evaluator (A Better Today, Inc.) indicating that you
have fully and completely complied and cooperated with
recommendations to enter inpatient treatment to be weaned
from methadone and that you are safe to practice in the
Commonwealth of PA, we will re-open your File and begin
monitoring you under the terms and conditions of probation.
(Doc. 84-9, App. Tab F, Harris Letter dated Mar. 13, 2008). Plaintiff

importance of monitoring and stated that Reynolds could only practice
nursing if she was monitored by the BoN. Accordingly, the court will not
ignore the independent significance of the consent agreement’s provisions
requiring drug screening and support group attendance.
37

contends that this letter is evidence that the methadone maintenance
policy was the but-for cause of Reynolds’ suspension. The above-quoted
portion of Harris’ letter appears to reference the hearing officer’s proposed
order, which provided that Reynolds’ suspension would be stayed if she
could provide the BoN with an evaluation from an approved provider
stating that it was safe for her to practice nursing. What Harris precisely
intended by her comment in this letter, however, is ultimately irrelevant
because Harris, as a PHMP case-worker, did not define the terms of
Reynolds’ suspension. The terms of Reynolds suspension were
exclusively controlled by the hearing examiner’s findings and the BoN
order, and Harris’ letter presents no evidence that either of these were
influenced primarily by PHMP’s methadone maintenance policy.
Plaintiff also contended at oral argument that a September 17, 2007
email sent by Knipe to the general counsel’s office of the BoN showed that
the methadone maintenance policy was the but-for cause of Reynolds’
suspension. In this email , Knipe generally informs the BoN that PHMP will
not grant permission for a nurse on methadone to practice. (See Doc. 991, App. Tab O to Pl.’s Reply Br.). This email, at best, confirms the
existence of the methadone maintenance policy that defendant concedes
existed in 2007. This email does not affect the undisputed fact that
Reynolds was also suspended for failing to comply with drug testing and
38

support group attendance requirements, and that, irrespective of PHMP’s
policy on methadone, Reynolds was in breach of the consent agreement.
Like Harris’ March 2008 letter, Knipe’s September 2007 email does not
create a genuine issue of material fact upon which a jury could find for
plaintiff.
At this stage in the litigation, the court cannot presume as true
plaintiff’s allegation that the methadone maintenance policy was the but-for
cause of Reynold’s license suspension. Rather, the record must contain
some triable fact that would allow a reasonable jury to find it to be true. No
such triable facts exist in this case, and the undisputed evidence from
Reynolds’ testimony at her BoN hearing reveals that she violated portions
of the consent agreement due to reasons unrelated to methadone
maintenance treatment. These other violations were independently
sufficient to sustain the revocation proceedings against Reynolds.
Therefore, plaintiff’s ADA claim must fail because no reasonable jury could
find that PHMP’s methadone maintenance policy was the but-for cause of
Reynolds’ suspension. Moreover, plaintiff’s inability to satisfy the ADA’s
causation requirement necessarily means that she cannot satisfy the RA’s
more stringent causation requirement. Thus, the court will grant
defendants’ motion with respect to both claims.

39

Conclusion
After considering the extensive record of this case and the
arguments contained in the parties’ lengthy briefs, the court agrees with
defendants that plaintiff is unable to meet her burden at trial as a matter of
law. The evidence is such that a reasonable jury could not return a verdict
for plaintiff. Specifically, the admissible evidence of record is insufficient to
meet plaintiff’s burden of establishing that Reynolds’ nursing license was
revoked by reason of PHMP’s methadone maintenance policy. Because
plaintiff cannot establish a prima facie case under the ADA or RA, the court
will grant defendants’ motion for summary judgment and deny plaintiff’s
motion for partial summary judgment. The court need not address the
parties’ other arguments as plaintiff cannot succeed as a matter of law. An
appropriate order follows.

40

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
BEVERLY LAMBERSON, as
Administratrix, of the Estate of
Melinda Lamberson Reynolds,
Deceased,
Plaintiff

:
No. 3:09cv1492
:
:
(Judge Munley)
:
:
:
v.
:
:
COMMONWEALTH OF
:
PENNSYLVANIA,
:
PENNSYLVANIA DEPARTMENT OF :
STATE, PENNSYLVANIA BUREAU
:
OF PROFESSIONAL &
:
OCCUPATIONAL AFFAIRS,
:
PENNSYLVANIA DIVISION OF
:
PROFESSIONAL HEALTH
:
MONITORING PROGRAMS,
:
PENNSYLVANIA STATE BOARD OF :
NURSING, BASIL L. MERENDA,
:
LINDA TANZINI AMBROSO,
:
K. STEPHEN ANDERSON,
:
CHRISTOPHER BARTLETT,
:
RAFAELA COLON, KATHLEEN M.
:
DWYER, JUDY A. HALE, SUZANNE :
M. HENDRICKS, JOSEPH J.
:
NAPOLITANO, ANN L. O’SULLIVAN, :
JANET H. SHIELDS and JOANNE L. :
SORENSEN,
:
Defendants
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER
AND NOW, to wit, this 5th day of August 2013, it is hereby
ORDERED as follows:
1. Plaintiff’s motion for partial summary judgment (Doc. 84) is
41

DENIED;
2. Defendants’ motion for summary judgment (Doc. 85) is
GRANTED;
3. The Clerk of Court is directed to enter judgment in favor of
defendants and against plaintiff; and
4. The Clerk of Court is directed to CLOSE this case.

BY THE COURT:

s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court

42