Third Circuit grants City of Philadelphia summary judgment in Rehabilitation Act-based lawsuit

By Nicholas Malfitano | May 24, 2016

PHILADELPHIA – The U.S. Court of Appeals for the Third Circuit stated Friday that a former Philadelphia Police Department officer candidate failed to establish a prima facie case of employment discrimination, and upheld a trial court ruling granting summary judgment to the City of Philadelphia.

Third Circuit judges Theodore A. McKee, Kent A. Jordan and Jane R. Roth opted to uphold a prior ruling from the U.S. District Court for the Eastern District of Pennsylvania in the case of Michael Cook, and agreed he had not provided adequate cause to establish a discrimination case against the City.

Roth authored the Court’s opinion in this matter.

“Following his graduation from the Delaware County Police Academy, Cook applied to be a Philadelphia police officer. In September 2012, the City of Philadelphia offered Cook employment contingent on his successful completion of medical and psychological evaluations, as required by Pennsylvania law,” Roth said.

Roth explained in order to qualify as a police officer in the state of Pennsylvania, a candidate must be examined by a licensed psychologist and found capable “to exercise appropriate judgment or restraint in performing the duties of a police officer.”

Cook met with seasoned police psychologist of 18 years, Dr. Nancy Rosenberg, in May 2013 for such an examination. Rosenberg determined Cook was “psychologically unfit” to be a police officer, and submitted a report to that effect. The report included a Summary Sheet, presenting a list of psychological qualities relating to essential job functions of a police officer, as well as a numerical scale from 1 to 5 for Rosenberg to rate the candidate.

On the categories of “judgment/common sense,” “decision-making/problem solving,” and “oral communication skills,” Rosenberg gave Cook a score of 2, indicating “poor, problem interferes significantly with functioning.” On the category of “resistance/ability to deal with stress/pressure/frustration,” Rosenberg rated Cook a 1, indicating “unacceptable, problem of pathological proportions.”

Due to this result, Cook was informed his application would not be considered by the department, but that he had the option to re-apply in the future. Cook believed he shouldn’t have to undergo the application process again, and instead chose to file suit against the City, alleging employment discrimination under the Rehabilitation Act and Title II of the Americans with Disabilities Act of 1990 (ADA).

“The City moved to dismiss Cook’s claims and in March 2015, the District Court granted the motion to dismiss as to Cook’s ADA claim. Following discovery, the City moved for summary judgment on Cook’s remaining Rehabilitation Act claim. Based on ‘undisputed facts and a paucity of proof from Cook,’ the District Court granted summary judgment, dismissing the case. Cook now appeals,” Roth explained.

Roth said for Cook to establish a prima facie discrimination case under the Rehabilitation Act, he must show that “(1) He is disabled; (2) He is otherwise qualified to perform the essential functions of his job with or without reasonable accommodations; and (3) He suffered adverse employment action as a result of discrimination based on his disability.”

It was a rationale the Third Circuit dismissed on its face.

“The District Court was correct in finding that Cook had not demonstrated that he was qualified for the position in question,” Roth stated. “Pennsylvania state law requires every police candidate be certified by a psychologist to ensure they are ‘psychologically capable to exercise appropriate judgment or restraint in performing the duties of a police officer.’ Cook failed to meet this requirement and has suggested no reasonable accommodation with which he would be qualified for the position of police officer.”

Roth added Cook “failed to articulate any facts that would support a claim of bias in the statutorily-required psychological examination”, which does not support a prima facie case of employment discrimination, and thus, the District Court properly granted summary judgment.

“Moreover, Cook also fails to establish that the City regarded him as having a ‘physical or mental impairment that substantially limits one or more major life activities,” Roth said. “In the present case, [Dr.] Rosenberg concluded that Cook was unsuitable to be a police officer; he was not diagnosed as having any particular psychological disease or disorder. Thus, Cook failed to meet his burden of showing that the City regarded him as disabled.”

The appellant is represented by Mark S. Scheffer of the Law Offices of Mark S. Scheffer, in Birchrunville.

The appellee is represented by Melissa T. Knight and Nicole S. Morris of the City of Philadelphia’s Law Department and Solicitor’s Office, respectively, in Philadelphia.

U.S. Court of Appeals for the Third Circuit case 15-2957

U.S. District Court for the Eastern District of Pennsylvania case 2:14-cv-05842

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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