1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-7-1999

Leheny v. Cty of Pittsburgh

Precedential or Non-Precedential:

Docket 98-3356

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Recommended Citation

"Leheny v. Cty of Pittsburgh" (1999). 1999 Decisions. Paper 193.

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Filed July 7, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

Nos. 98-3356, 98-3364, 98-3405 

THOMAS E. LEHENY; JAMES R. RAMSEY; ARTHUR 

MARUNICH, for themselves and others similarly situated 

 Thomas E. Leheny, 

 Appellant No. 98-3364 

v. 

CITY OF PITTSBURGH; POLICEMEN'S RELIEF AND 

PENSION FUND OF THE CITY OF PITTSBURGH; 

FRATERNAL ORDER OF POLICE, FORT PITT LODGE 

NO. 1 

 City of Pittsburgh, 

 Appellant Nos. 98-3356/3405 

On Appeal from the United States District Court 

for the Western District of Pennsylvania 

(D.C. No. 94-cv-00866) 

District Judge: Hon. Maurice B. Cohill, Jr. 

Argued: May 4, 1999 

Before: ALDISERT, WEIS and STAPLETON, Circuit Judges, 

(Filed: July 7, 1999) 
 Joseph S. Hornack (argued) 

 Healey, Davidson & Hornack 

 Fifth Floor 

 Law & Finance Building 

 Pittsburgh, PA 15219 

 ATTORNEY FOR 

 APPELLEES/CROSS-APPELLANTS 

 Brian P. Gabriel (argued) 

 Assistant City Solicitor 

 City of Pittsburgh Department 

 of Law 

 Firm #046 

 313 City-County Building 

 414 Grant Street 

 Pittsburgh, PA 15219 

 ATTORNEY FOR 

 APPELLANTS/CROSS-APPELLEES 

OPINION OF THE COURT 

ALDISERT, Circuit Judge. 

These cross-appeals by the City of Pittsburgh and three 

retired police officers (the "Retirees") require us to decide 

whether a City policy that offsets pension benefits for 

disabled retired police officers by worker's compensation 

benefits violates equal protection and due process rights 

and constitutes a violation of the Americans with 

Disabilities Act, 42 U.S.C. S 12101 et seq. ("ADA"). The 

district court dismissed the Retirees' ADA claim but 

submitted the constitutional claims to a jury that awarded 

compensatory damages. 

In its appeal from the judgment on the jury verdict, the 

City contends that the court erred in not granting judgment 

as a matter of law on the equal protection and due process 

claims. In their appeal, the Retirees contend that the court 

erred in dismissing their ADA claim. We have jurisdiction 

pursuant to 28 U.S.C. S 1291. 

 2 
We hold that the district court correctly dismissed the 

Retirees' ADA claim but erred when it failed to grant 

judgment as a matter of law in the City's favor on the equal 

protection and due process claims. Accordingly, we will 

affirm in part and reverse in part. 

I. 

The Retirees are former police officers for the City of 

Pittsburgh. Each suffered a work-related injury and

received his full rate of salary pursuant to the Heart and 

Lung Act, 53 P.S. S 637, until approximately December 14, 

1992.1 On December 14, 1992, Thomas E. Leheny and 

James R. Ramsey signed documents acknowledging their 

permanent disability, and therefore became ineligible for 

Heart and Lung Act benefits but eligible to collect worker's 

compensation and reduced pension benefits. These appeals 

pertain to the amount of pension benefits for which the 

Retirees became eligible. 

Prior to 1992, police officers who were unable to return 

to work due to injury remained on the City's active payroll 

and received 100% of their salary pursuant to the Heart 

and Lung Act. These payments placed a significant strain 

on the City's fiscal integrity. 

The City's financial concerns were addressed in March 

1992, after an impasse had been reached in the collective 

bargaining process with the Fraternal Order of Police 

(F.O.P.), when an arbitration award was issued that

eventually became a part of a collective bargaining

agreement. Officers meeting age and service eligibility 

requirements could choose to be placed on one of two lists 

of officers who wished to retire prior to the end of 1995 

under an "early retirement incentive plan." List A would 

consist of all officers seeking immediate retirement. List B 

would consist of all officers who wished to retire before 

December 31, 1995, when eligibility for this early 

_________________________________________________________________ 

1. The Retirees accepted Heart and Lung Act benefits in lieu of lesser 

benefits provided pursuant to the Pennsylvania Worker's Compensation 

Act, 77 P.S. S 1 et seq. The Heart and Lung Act permits police officers to 

receive their full salary during a period of temporary disability. 

 3 
retirement incentive would end. Officers on List B could be 

retired by the City at any time after all officers on List A 

had been retired, but were guaranteed retirement by

December 31, 1995. 

Officers selecting to be placed on either list were required 

to fill out a Retirement Incentive Window Irrevocable 

Application Form prior to September 1, 1992. See App. at 

115 (arbitration award provision), 121 (letter from Fraternal 

Order of Police to officers describing procedure for early 

retirement incentive). The Retirees chose to be placed on 

List B. 

Pursuant to the arbitration award, officers on either list 

who were at least 50 years of age and had at least 25 years 

of service were given the opportunity to receive an

enhanced retirement benefit equal to 75% of their average 

monthly pay without service increments. App. at 115-116. 

For disabled officers who were receiving worker's 

compensation, the award provided that: 

 An employee who is receiving worker's compensation 

 benefits can receive up to 66 2/3 [%] of pay from 

 worker's compensation and receive 50% of average 

 monthly pay plus service increments under the Police 

 Pension Plan without any offset. . . . However, an 

 employee who is already eligible on retirement for 

 combined benefits in excess of 75% of average monthly 

 pay and who elects to retire pursuant to the retirement 

 incentive shall not be entitled to any additional pension 

 benefit from the retirement incentive provided for in 

 this Award. In the event that such employee's worker's 

 compensation benefits are reduced or eliminated after 

 retirement, the employee shall be entitled to such 

 pension enhancement as is necessary to maintain a 

 benefit, including worker's compensation, if any, which 

 is 75% of average monthly pay at retirement.2 

_________________________________________________________________ 

2. This reduced pension was available to all permanently disabled 

officers, regardless of age and service. See City's Br. at 18. Because the 

reduced pension for disabled officers was not limited to those who met 

the 50 years of age/25 years of service plateau, there may have been 

officers who were eligible for reduced benefits because they collect 

 4 
App. at 116. Officers who accepted this enhancement but 

continued to receive worker's compensation were not

deemed "voluntary quits." 

The Retirees were requested to sign supplemental 

agreements acknowledging their permanent disability. By 

signing these agreements, the Retirees agreed to the 

termination of their benefits under the Heart and Lung Act, 

which provided 100% salary payments. In place of these 

benefits, the Retirees would be eligible to receive worker's 

compensation benefits, which provide up to 66 2/3% of the 

worker's salary. The City planned to submit these 

agreements to an office in Harrisburg to terminate payment 

of Heart and Lung Act benefits. 

The City had retained Sedgwick James, an independent 

agency retained by the City for disability claims 

management service, to process these claims. Leheny and 

Ramsey were shown a letter from Sedgwick James that

directed the F.O.P.'s attorney to contact certain officers and 

have them sign supplemental agreements acknowledging 

that they were permanently disabled. This letter stated that 

"[if anyone decides not to sign the agreement, then I [Kelly 

Ryan, a Sedgwick James employee] will have no recourse 

but to file a Termination with the Heart and Lung Panel." 

App. at 954. 

Leheny and Ramsey signed the agreements. They testified 

at trial that they interpreted the letter to mean that they 

would lose all of their work-related and injury-related 

benefit payments if they did not sign the supplemental 

agreement. They contended that they were not informed 

that Ryan had no authority to terminate or file a 

termination of Heart and Lung Act benefits, nor were they 

made aware that they could decline to sign the agreement 

and then go before an arbitrator if the City filed a 

_________________________________________________________________ 

worker's compensation, but who were not eligible for the enhanced 

incentive pension. Those officers would not be "similarly situated" to 

those receiving the 75% pension, and thus the provision would not be 

unconstitutional on its face. Here, however, it is clear that the Retirees 

each had achieved the age and service requirement, and thus we must 

determine whether the provision is unconstitutional as applied to them. 

 5 
termination petition. Retiree Arthur Marunich, however, 

refused to sign the supplemental agreement, and received a 

hearing in front of an arbitrator in accordance with the 

arbitration award's grievance procedure.3 

After Leheny and Ramsey signed the supplemental 

agreements, they applied for the 75% pensions provided for 

by the arbitration award. In January 1993, the City's 

Policemen's Relief and Pension Fund (the "Fund") approved 

Leheny's and Ramsey's applications for retirement benefits. 

However, instead of awarding the 75% pension, the Fund 

awarded Leheny and Ramsey the 50% pension in 

accordance with the provisions of the arbitration award 

because they were receiving worker's compensation 

benefits. 

After exhausting administrative procedures, the Retirees 

filed a complaint in the district court, alleging, inter alia, 

that the City, the F.O.P. and the Fund had violated their 

rights to equal compensation under the ADA, as well as 

their equal protection and due process rights. 

The Retirees filed a motion for class certification on 

September 2, 1994. On January 27, 1995, the City moved 

for summary judgment. The Retirees also filed a motion for 

partial summary judgment. These motions were assigned to 

a Magistrate Judge, who conducted a hearing and 

subsequently issued her report and recommendation from 

the bench. She recommended that: (1) the Retirees' partial 

motion for summary judgment be denied; (2) the City's 

motion for summary judgment be granted as to the 

Retirees' ADA claim, but be denied in all other respects; 

and (3) the motion for class certification be denied as moot 

if the district court agreed that the ADA claim should be 

dismissed. 

The district judge adopted and approved the report and 

recommendation in toto, and set the matter for trial. 

Another district judge presided at the trial. At the close of 

the Retirees' case-in-chief, the City moved for judgment as 

a matter of law. The district court reserved ruling on the 

_________________________________________________________________ 

3. Because Marunich received a hearing before an arbitrator, he did not 

allege a violation of his due process rights. 

 6 
motion. At the close of all evidence, the City renewed its 

motion for judgment as a matter of law. Once again, the 

court reserved ruling. 

The jury issued special verdicts, finding that: (1) the 

F.O.P. was not acting under color of state law and therefore 

could not be held liable on the constitutional violation 

claims; (2) the City violated Leheny's and Ramsey's due 

process rights when it forced them to sign the supplemental 

agreements; (3) Leheny and Ramsey were entitled to 

compensatory damages in the amounts of $15,000 and 

$22,000 respectively for the due process violations; and (4) 

the City deprived the Retirees of their equal protection 

rights when it determined that the Retirees were only 

entitled to a 50% pension and 66 2/3% worker's 

compensation benefits. After the verdicts were rendered, the 

district court denied the City's motion for judgment as a 

matter of law. 

The City timely filed a motion for a new trial, which was 

immediately denied. On April 14, 1998, the Retireesfiled a 

motion for prejudgment interest and a motion for costs and 

attorney's fees. The district court granted the Retirees' 

motions on May 22, 1998, without explanation: The court 

simply signed the Retirees' proposed form of order. These 

appeals followed.4 

On appeal, the City contends that the district court was 

obligated, pursuant to case law from this court, to grant the 

motion for judgment as a matter of law as to the Retirees' 

equal protection claim. Further, the City argues that the 

Retirees, as a matter of law, failed to establish that they 

had been forced to retire in violation of their due process 

rights. Conversely, the Retirees contend that our holding in 

Ford v. Schering-Plough Corp., 145 F.3d 601 (3d Cir. 1998), 

requires reinstatement of their ADA claim, and that the 

district court abused its discretion when it denied their 

motion for class certification.5 

_________________________________________________________________ 

4. The F.O.P. and the Fund are not parties to these appeals. 

5. The City has also appealed certain evidentiary rulings made by the 

district court concerning the admissibility of testimony of non-disabled 

officers' post-retirement earnings and the district court's failure to 

explain its award of prejudgment interest and attorney's fees. These 

issues, as well as the Retirees' appeal of the denial of the motion for 

class certification, need not be addressed because of the discussion that 

follows. 

 7 
II. 

We review de novo the district court's denial of the City's 

motions for judgment as a matter of law. Paolella v. 

Browning-Ferris, Inc., 158 F.3d 183, 189 (3d Cir. 1998). "A 

motion for judgment as a matter of law should be granted 

only if, `viewing all the evidence . . . in the light most 

favorable to the party opposing the motion, no jury could 

decide in that party's favor.' " Id. (quoting Walter v. Holiday 

Inns, Inc., 985 F.2d 1232, 1238 (3d Cir. 1993)). Review of 

the district court's grant of summary judgment in the City's 

favor as to the Retirees' ADA claim is also plenary. Pavlik v. 

Lane Limited/Tobacco Exporters Int'l, 135 F.3d 876, 880 (3d 

Cir. 1998). 

III. 

We conclude that the Retirees' constitutional law claims 

are inconsistent with the teachings of this court in 

Buczynski v. General Motors Corp., 616 F.2d 1238, 1246 

(3d Cir. 1980), aff'd sub nom. Alessi v. RaybestosManhattan, Inc., 451 U.S. 504 (1981), that held that the 

Employee Retirement Security Act of 1974 ("ERISA") did not 

invalidate a pension plan provision authorizing reductions 

or offsets of pension benefits by amounts received by 

pensioners under a worker's compensation statute. 

A. 

We begin our analysis of the Retirees' contention that the 

arbitration award violated the Equal Protection Clause with 

a determination of the appropriate standard of review. See 

Donatelli v. Mitchell, 2 F.3d 508, 513 (3d Cir. 1993). The 

Retirees have alleged that state action disparately affected 

the economic rights of a specific group of retired Pittsburgh 

police officers. Because the City's action involves neither 

fundamental rights nor suspect classifications, it is 

accorded a strong presumption of validity and is subject to 

rational basis review, in which the Retirees must establish 

that the action was not rationally related to effecting any 

legitimate government purpose. Heller v. Doe, 509 U.S. 312, 

319-321 (1993). 

 8 
It is clear that the City's asserted purposes for creation of 

the early retirement incentive--to maintain the City's fiscal 

integrity and to avoid paying duplicate benefits--are 

legitimate government concerns. See Graham v. Richardson, 

403 U.S. 365, 371-376 (1971). Accordingly, the primary 

question presented here is whether the early retirement 

incentive, with its distinction between retirees who receive 

worker's compensation and those who do not, bears a

rational relationship to those asserted purposes. 

In the context of an ERISA-based action, in Buczynski we 

addressed whether pension benefits and worker's 

compensation benefits are interchangeable. We were called 

upon to determine whether ERISA invalidated a pension 

plan provision that authorized the reduction or offset of 

pension benefits by amounts received by pensioners under 

the worker's compensation statute. The court conducted a 

lengthy analysis that analogized provisions of the Internal 

Revenue Code and applicable legislative history regarding 

Congressional approval of offsets of pension benefits by 

amounts received from the Social Security Administration 

to the type of offset at issue here. See Buczynski, 616 F.2d 

at 1244-1246. In S 1021(e) of the Internal Revenue Code, 26 

U.S.C. S 401(a)(15), Congress specifically permitted such 

offsets of pension benefits irrespective of ERISA's

nonforfeiture provision, 29 U.S.C. S 1053(a). 

The pensioners in Buczynski argued that offset of 

pension benefits by amounts received from worker's 

compensation could not be sustained on the basis of

Congress' approval of the Social Security offset. The 

pensioners argued that Social Security benefits and pension 

benefits 

 are both designed to compensate for wages lost as a 

 result of old age, and therefore the Social Security 

 offset simply avoids a duplication of benefits directed to 

 the same end. Workmen's Compensation, by contrast, 

 is designed to compensate for losses flowing from 

 employment related injuries; thus, the Workmen's 

 Compensation offset . . . cannot be defended as a 

 means to avoid duplication of benefits. 

Buczynski, 616F.2d at 1246. 

 9 
We disagreed with the pensioners' reasoning: 

 The plaintiffs' argument here fails to recognize the 

 breadth of the Social Security program. Social Security 

 provides benefits for disabilities, see 42 U.S.C. S 423 

 (1976), as well as benefits for old age. Thus, the Social 

 Security offset that Congress has approved includes, 

 perforce, an offset against pension benefits for 

 disability benefits. The Social Security offset, since it 

 includes an offset of disability benefits, makes any 

 purported distinction between the Social Security offset 

 and the Workmen's Compensation offset meaningless. 

 The disability offset, included within the Social Security 

 offset, thus compels us to reject any purported 

 distinction between Social Security offsets and 

 Workmen's Compensation offsets. 

Id. In Alessi, the Court put its imprimatur on our 

discussion. See 451 U.S. at 519-521. 

Although Buczynski involved an ERISA-based challenge 

rather than a challenge under the Constitution, the

precepts enunciated in that case are controlling here. Our 

holding in Buczynski can be distilled to a single concept: An 

offset of pension benefits by a portion of the benefits 

received from worker's compensation is permissible, in the 

same manner as an offset of Social Security benefits, 

because both offsets encompass, at least in part,"an offset 

of disability benefits, mak[ing] any purported distinction 

between [a] Social Security offset and [a] Workmen's 

Compensation offset meaningless." Buczynski, 616 F.2d at 

1246. Because Buczynski stands for the proposition that an 

offset of pension benefits by an amount of received worker's 

compensation benefits is permissible, the offset enforced by 

the City bears a rational relation to the stated government 

purposes of maintaining fiscal integrity and preventing 

payment of duplicate benefits, and therefore withstands 

equal protection scrutiny.6 

_________________________________________________________________ 

6. The City's position is made stronger by the arbitration award's 

provision concerning disabled retirees whose worker's compensation 

benefits terminate. The award states that once a retiree's worker's 

compensation benefits cease, the retiree will receive the 75% pension 

given to all non-disabled retirees. Thus, at no point will a retired 

disabled Pittsburgh police officer receive less than his non-disabled 

counterparts. 

 10 
Decisions from several state courts, relied upon by the 

Retirees, do not qualify as proper analogies or persuasive 

argument. See, e.g., Industrial Claim Appeals Office v. 

Romero, 912 P.2d 62 (Colo. 1996) (in banc ); State ex rel. 

Boan v. Richardson, 482 S.E.2d 162 (W. Va. 1996). The 

decision in Buczynski controls this case and the district 

court erred when it denied the City's motion for judgment 

as a matter of law on the equal protection claim. 

B. 

Similarly, the Retirees' due process claim should have 

been dismissed. The City concedes that the Retirees had a 

valid property interest in their employment and retirement 

benefits. We must, therefore, focus on whether the Retirees 

retired voluntarily or were constructively discharged. See 

Zepp v. Rehrmann, 79 F.3d 381, 385-386 (4th Cir. 1996). 

To make this determination, we examine "the surrounding 

circumstances to test the ability of the employee to exercise 

free choice." Scharf v. Department of the Air Force, 710 F.2d 

1572, 1574 (Fed. Cir. 1983). 

Employee resignations and retirements are presumed to 

be voluntary. See Angarita v. St. Louis County, 981 F.2d 

1537, 1544 (8th Cir. 1992). This presumption remains 

intact until the employee presents evidence to establish 

that the resignation or retirement was involuntarily 

procured. Id. If an employee retires of his own free will, 

even though prompted to do so by some action of his

employer, he is deemed to have relinquished his property 

interest in his continued employment for the government, 

and cannot contend that he was deprived of his due 

process rights. See Hargray v. City of Hallandale, 57 F.3d 

1560, 1567 (11th Cir. 1995); Stone v. University of Md. 

Medical Sys. Corp., 855 F.2d 167, 173 (4th Cir. 1988). 

There appear to be two circumstances in which an 

employee's resignation or retirement will be deemed

involuntary for due process purposes: 1) when the employer 

forces the resignation or retirement by coercion or duress, 

or 2) when the employer obtains the resignation or 

retirement by deceiving or misrepresenting a material fact 

to the employee. See Hargray, 57 F.3d at 1568. 

 11 
The Retirees contend that they signed the supplemental 

agreements because of material misrepresentations made 

by Kelly Ryan in the letter she sent on behalf of Sedgwick 

James to an attorney for the F.O.P. The Retirees contend 

that Ryan's letter led them to believe that if they did not 

sign the supplemental agreements, they would not only lose 

their Heart and Lung Act benefits, but also their pension 

and any available worker's compensation benefits. Ryan's 

letter, dated December 3, 1992, stated, in relevant part: 

 Enclosed are various supplemental agreements for the 

 following claimants who are currently receiving Heart 

 and Lung Benefits. The medical information in their 

 files indicate that they are suffering from a permanent 

 disability and therefore are not entitled to receive Heart 

 and Lung benefits. . . . Please have the supplemental 

 agreements executed and returned to me by December 

 14, 1992. Once the agreements are received, their 

 wages will be reduced to the compensation rate 

 indicated on the agreement. If anyone decides not to 

 sign the agreement, then I will have no recourse but to 

 file a Termination with the Heart and Lung Panel. 

App. at 137. The Retirees argue that their due process 

rights were violated because the letter coerced them into 

retiring. We disagree. 

Ryan's letter could not have violated the Retirees' due 

process rights because the Retirees had decided to retire in 

August 1992, four months before they saw Ryan's letter. In 

August 1992, the Retirees volunteered to be placed on a list 

of police officers who had reached 50 years of age and 

provided 25 years of service and who wished to retire at 

some time between January 1, 1992 and December 31, 

1995. See, e.g., App. at 121 (letter from F.O.P. to officers 

describing terms of arbitration award and requirements for 

early retirement incentive), 123-124 (Leheny's Retirement 

Incentive Window Irrevocable Application Form, dated 

August 20, 1992). The City had the right to retire the 

Retirees at any time between January 1, 1992 and 

December 31, 1995, once all List A officers had been retired 

by the City. Thus, the City, by asking the Retirees to sign 

the supplemental agreements, had merely approved the 

Retirees' retirement and had made a determination that the 

 12 
Retirees were permanently disabled. Ryan's letter indicates 

just that: She would seek to terminate Heart and Lung Act 

benefits as part of the officers' retirement on the basis of 

permanent disability. Although it is possible that Ryan's 

letter may have confused Leheny and Ramsey concerning 

the applicable procedures for terminating Heart and Lung 

Act benefits, no part of the letter would lead a reasonable 

police officer to believe that refusal to sign the 

supplemental agreements would result in termination of all 

benefits. 

Additionally, we have held that in cases in which "a due 

process claim is raised against a public employer, and 

grievance and arbitration procedures are in place, .. . those 

procedures satisfy due process requirements `even if the 

hearing conducted by the Employer . . . [is] inherently 

biased.' " Dykes v. SEPTA, 68 F.3d 1564, 1571 (3d Cir. 

1995) (quoting Jackson v. Temple Univ., 721 F.2d 931, 933 

(3d Cir. 1983)). Grievance procedures outlined in a

collective bargaining agreement can satisfy due process 

requirements. Id. at 1572 n.6. 

Because Leheny testified that he received the arbitration 

award and attended a meeting in which the award was

explained, he is deemed to have been aware of the 

applicable grievance procedure. There is no evidence to 

suggest that the Retirees spoke to a supervisor or 

representative of the F.O.P. or the City prior to signing the 

supplemental agreement. The Retirees had ten days to 

investigate the implications of refusing to sign the 

supplemental agreement, ten days to seek the advice of a 

union representative concerning available grievance

procedures if they did not wish to sign the supplemental 

agreement. If the officers were not convinced that they were 

permanently disabled, their recourse was to go before an 

arbitrator to contest the City's determination of permanent 

disability. Officer Marunich followed this procedure, and as 

a result is not included in the Retirees' due process claim. 

Leheny and Ramsey did not. Not availing themselves of the 

process that was available to them, they may not complain 

now that they were deprived of due process of law. 

For all of the above reasons, we conclude that the district 

court erred in not dismissing the due process claim. 

 13 
C. 

The district court properly granted summary judgment 

for the City regarding the Retirees' ADA claim. The Retirees 

were unable to establish that they had been victims of 

discrimination under the ADA. 

The ADA prohibits discrimination in the terms and 

conditions of employment, and states in relevant part: 

 No covered entity shall discriminate against a qualified 

 individual with a disability because of the disability of 

 such individual in regard to job application procedures, 

 the hiring, advancement, or discharge of employees, 

 employee compensation, job training, and other terms, 

 conditions, and privileges of employment. 

42 U.S.C. S 12112(a). 

 [N]o 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. S 12132. The Retirees contend that the 

arbitration award's early retirement incentive provision 

violates their right to equal compensation under the ADA. 

Although the parties dispute whether the Retirees were in 

fact "disabled" for purposes of the ADA, we need not 

address this issue to conclude that the ADA claim was 

properly dismissed. Assuming that the Retirees were

"disabled," we conclude that they failed to present evidence 

demonstrating that the City impinged upon their right to 

equal compensation. 

As the district court properly noted, there is no evidence 

that the Retirees are receiving less than their non-disabled 

counterparts who receive a 75% pension without service 

increments. The evidence establishes that disabled retired 

officers, who receive a 50% pension with service increments 

plus a 66 2/3% worker's compensation award, actually 

receive greater compensation than non-disabled retirees. 

Indeed, the Retirees receive more than 100% of the salary 

they received while actively employed as police officers. 

 14 
The Retirees argue that even though they may receive 

greater compensation than their non-disabled counterparts, 

they are nonetheless victims of ADA-based discrimination 

because non-disabled retirees are able to obtain new 

employment for any amount of compensation and, because 

of their disability, they are limited to the 66 2/3% worker's 

compensation benefits they receive. 

Without considering that the Retirees would still face the 

possibility of receiving lesser earnings than non-disabled 

retirees even if they received a 75% pension because nondisabled retirees would be able to obtain employment 

elsewhere, we conclude that their argument is not 

persuasive. The Retirees are not prevented from receiving a 

75% pension if they so desire. The arbitration award clearly 

states that every police officer who has attained 50 years of 

age and 25 years of service is entitled to receive a 75% 

pension upon retirement from the police force. Disabled 

officers are not required by the arbitration award to accept 

the 50% pension and 66 2/3% worker's compensation. 

There is nothing in the circumstances presented here that 

prevents a retired police officer from rejecting worker's 

compensation payments and thereby receiving the 75%

pension. This is made quite clear by the express language 

of the arbitration award: 

 In the event that such employee's worker's 

 compensation benefits are reduced or eliminated after 

 retirement, the employee shall be entitled to such 

 pension enhancement as is necessary to maintain a 

 benefit, including worker's compensation, if any, which 

 is 75% of average monthly pay at retirement.

App. at 116. 

Our decision today fits squarely with our holding in Ford 

v. Schering-Plough Corp., supra, which, surprisingly, the 

Retirees have cited as support for their position. The 

plaintiff in that case alleged that her former employer's 

insurance plan, which provided a two-year cap for benefits 

for mental disabilities while providing no cap for benefits for 

physical disabilities, violated the ADA. After determining 

that the ADA permits disabled individuals to sue their 

former employers regarding their disability benefits, we 

 15 
addressed the disparity in available benefits for mental and 

physical disabilities. We held that the plaintiff had not 

stated a claim for violation of the ADA: 

 Every Schering employee had the opportunity to join 

 the same plan with the same schedule of coverage, 

 meaning that every Schering employee received equal 

 treatment. So long as every employee is offered the 

 same plan regardless of that employee's contemporary 

 or future disability status, then no discrimination has 

 occurred even if the plan offers different coverage for 

 various disabilities. 

145 F.3d at 608. 

In Ford court we were faced with a stricter benefit plan 

than the one presented here. The disability policy explicitly 

cut off benefits to employees with certain disabilities at the 

same time it continued benefits for employees with other 

types of disabilities. Yet, we ruled that the policy did not 

violate the ADA. 

The pension plan and arbitration award presented here 

fall within the teachings of Ford. Every police officer who 

has attained 50 years of age and 25 years of service is 

permitted to receive a 75% pension upon retirement from 

the force; "every employee is offered the same plan

regardless of that employee's contemporary or future 

disability status." The individual retiree is given the 

responsibility to decide whether or not to accept worker's 

compensation in lieu of a 75% pension. Because every 

eligible retiree is entitled to receive a 75% pension, and 

because each of the Retirees is permitted to receive a 75% 

pension when he no longer receives worker's compensation 

benefits, there is no violation of the ADA. 

IV. 

In light of the view we take, we need not address the 

remaining arguments presented by the parties. The 

judgment of the district court will be affirmed in part and 

reversed in part in accordance with the foregoing. 

 16 
A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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