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. e du/thir dc ir c uit_1999/193Filed 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 situa ted

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 Judge s,

(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 t hree 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 compen sation 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 bu t 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 jurisd iction pursuant to 28 U.S.C. S 1291.

2We hold that the district court correctly dismissed the

Retirees' ADA claim but erred when it failed to gra nt 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 Cit y of Pittsburgh. Each suffered a work-related injury and received his full rate of salary pursuant to the He art and Lung Act, 53 P.S. S 637, until approximately Decemb er 14, 1992.1 On December 14, 1992, Thomas E. Leheny and James R. Ramsey signed documents acknowledging thei r permanent disability, and therefore became ineligib le for Heart and Lung Act benefits but eligible to collect worker's compensation and reduced pension benefits. These ap peals pertain to the amount of pension benefits for which the Retirees became eligible.

Prior to 1992, police officers who were unable to r eturn to work due to injury remained on the City's active payroll and received 100% of their salary pursuant to the H eart and Lung Act. These payments placed a significant s train on the City's fiscal integrity.

The City's financial concerns were addressed in Mar ch 1992, after an impasse had been reached in the coll ective bargaining process with the Fraternal Order of Poli ce (F.O.P.), when an arbitration award was issued that eventually became a part of a collective bargaining agreement. Officers meeting age and service eligibi lity requirements could choose to be placed on one of tw o lists of officers who wished to retire prior to the end o f 1995 under an "early retirement incentive plan." List A would consist of all officers seeking immediate retiremen t. List B

would consist of all officers who wished to retire before December 31, 1995, when eligibility for this early

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1. The Retirees accepted Heart and Lung Act benefit s in lieu of lesser benefits provided pursuant to the Pennsylvania Work er's Compensation Act, 77 P.S. S 1 et seq. The Heart and Lung Act per mits police officers to receive their full salary during a period of tempor ary disability.

3retirement 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 Irrevocab le Application Form prior to September 1, 1992. See Ap p. at 115 (arbitration award provision), 121 (letter from Fraternal Order of Police to officers describing procedure fo r early retirement incentive). The Retirees chose to be pla ced on

List B.

Pursuant to the arbitration award, officers on eith er 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 a verage 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 compen sation benefits can receive up to 66 2/3 [%] of pay from worker's compensation and receive 50% of ave rage monthly pay plus service increments under th e Police Pension Plan without any offset. . . . Howev er, an employee who is already eligible on retireme nt for combined benefits in excess of 75% of averag e monthly pay and who elects to retire pursuant to the retirement incentive shall not be entitled to any addit ional pension benefit from the retirement incentive provid ed for in this Award. In the event that such employee' s worker's compensation benefits are reduced or elimina ted after retirement, the employee shall be entitled t o such pension enhancement as is necessary to maint ain a benefit, including worker's compensation, if any, which is 75% of average monthly pay at retirement. 2

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2. This reduced pension was available to all perman ently disabled officers, regardless of age and service. See City's Br. at 18. Because the reduced pension for disabled officers was not limit ed to those who met the 50 years of age/25 years of service plateau, th ere may have been officers who were eligible for reduced benefits bec ause they collect

4App. 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 th e termination of their benefits under the Heart and L ung Act, which provided 100% salary payments. In place of th ese 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 independen t 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 o fficers and have them sign supplemental agreements acknowledgin g that they were permanently disabled. This letter st ated that "[if anyone decides not to sign the agreement, then I [Kelly Ryan, a Sedgwick James employee] will have no recou rse but to file a Termination with the Heart and Lung P anel." App. at 954.

Leheny and Ramsey signed the agreements. They testi fied at trial that they interpreted the letter to mean t hat they would lose all of their work-related and injury-rel ated benefit payments if they did not sign the supplemen tal agreement. They contended that they were not inform ed that Ryan had no authority to terminate or file a termination of Heart and Lung Act benefits, nor wer e they made aware that they could decline to sign the agre ement and then go before an arbitrator if the City filed a

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worker's compensation, but who were not eligible fo r the enhanced incentive pension. Those officers would not be "sim ilarly situated" to those receiving the 75% pension, and thus the provi sion 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.

5termination petition. Retiree Arthur Marunich, howe ver,

refused to sign the supplemental agreement, and rec eived a hearing in front of an arbitrator in accordance wit h the arbitration award's grievance procedure.3

After Leheny and Ramsey signed the supplemental agreements, they applied for the 75% pensions provi ded for by the arbitration award. In January 1993, the City 's Policemen's Relief and Pension Fund (the "Fund") ap proved Leheny's and Ramsey's applications for retirement b enefits. However, instead of awarding the 75% pension, the F und awarded Leheny and Ramsey the 50% pension in accordance with the provisions of the arbitration a ward because they were receiving worker's compensation

benefits.

After exhausting administrative procedures, the Ret irees 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 mo ved for summary judgment. The Retirees also filed a mot ion for partial summary judgment. These motions were assign ed to a Magistrate Judge, who conducted a hearing and subsequently issued her report and recommendation f rom 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 res pects; and (3) the motion for class certification be denie d as moot if the district court agreed that the ADA claim sho uld be

dismissed.

The district judge adopted and approved the report and recommendation in toto, and set the matter for tria l. Another district judge presided at the trial. At th e close of the Retirees' case-in-chief, the City moved for jud gment as a matter of law. The district court reserved ruling on the

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3. Because Marunich received a hearing before an ar bitrator, he did not allege a violation of his due process rights.

6motion. At the close of all evidence, the City rene wed 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 viol ation claims; (2) the City violated Leheny's and Ramsey's due process rights when it forced them to sign the supp lemental 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 prote ction rights when it determined that the Retirees were on ly entitled to a 50% pension and 66 2/3% worker's compensation benefits. After the verdicts were rend ered, the district court denied the City's motion for judgmen t as a

matter of law.

The City timely filed a motion for a new trial, whi ch was immediately denied. On April 14, 1998, the Retirees filed a motion for prejudgment interest and a motion for co sts and attorney's fees. The district court granted the Ret irees' motions on May 22, 1998, without explanation: The c ourt simply signed the Retirees' proposed form of order. These appeals followed.4

On appeal, the City contends that the district cour t was obligated, pursuant to case law from this court, to grant the motion for judgment as a matter of law as to the Re tirees' equal protection claim. Further, the City argues th at the Retirees, as a matter of law, failed to establish t hat they

had been forced to retire in violation of their due process rights. Conversely, the Retirees contend that our h olding 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

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4. The F.O.P. and the Fund are not parties to thes e appeals. 5. The City has also appealed certain evidentiary r ulings made by the district court concerning the admissibility of test imony of non-disabled officers' post-retirement earnings and the district court's failure to explain its award of prejudgment interest and attor ney's fees. These issues, as well as the Retirees' appeal of the deni al of the motion for class certification, need not be addressed because of the discussion that

follows.

7II.

We review de novo the district court's denial of th e City's motions for judgment as a matter of law. Paolella v

. Browning-Ferris, Inc., 158 F.3d 183, 189 (3d Cir. 1 998). "A motion for judgment as a matter of law should be gr anted only if, `viewing all the evidence . . . in the lig ht most favorable to the party opposing the motion, no jury could decide in that party's favor.' " Id. (quoting Walte r v. Holiday Inns, Inc., 985 F.2d 1232, 1238 (3d Cir. 1993)). Re view of the district court's grant of summary judgment in t he 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 c laims are inconsistent with the teachings of this court i n Buczynski v. General Motors Corp., 616 F.2d 1238, 1 246(3d Cir. 1980), aff'd sub nom. Alessi v. RaybestosManhattan, Inc., 451 U.S. 504 (1981), that held tha t the Employee Retirement Security Act of 1974 ("ERISA") did not invalidate a pension plan provision authorizing red uctions 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 t hat the arbitration award violated the Equal Protection Cla use with a determination of the appropriate standard of revi ew. See Donatelli v. Mitchell, 2 F.3d 508, 513 (3d Cir. 199 3). 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 su bject to rational basis review, in which the Retirees must e stablish that the action was not rationally related to effec ting any legitimate government purpose. Heller v. Doe, 509 U .S. 312, 319-321 (1993).

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

the early retirement incentive--to maintain the Cit y's fiscal integrity and to avoid paying duplicate benefits--a re legitimate government concerns. See Graham v. Richa rdson, 403 U.S. 365, 371-376 (1971). Accordingly, the prim ary question presented here is whether the early retire ment incentive, with its distinction between retirees wh o 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 Buczyns ki we addressed whether pension benefits and worker's compensation benefits are interchangeable. We were called upon to determine whether ERISA invalidated a pensi on plan provision that authorized the reduction or off set of pension benefits by amounts received by pensioners under the worker's compensation statute. The court conduc ted a lengthy analysis that analogized provisions of the Internal Revenue Code and applicable legislative history reg arding Congressional approval of offsets of pension benefi ts by amounts received from the Social Security Administr ation 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 permitte d 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. T he pensioners argued that Social Security benefits and pension

benefits

are both designed to compensate for wages lo st as a result of old age, and therefore the Social Security offset simply avoids a duplication of benefi ts directed to the same end. Workmen's Compensation, by con trast, is designed to compensate for losses flowing from employment related injuries; thus, the Workm en's Compensation offset . . . cannot be defended as a means to avoid duplication of benefits.

Buczynski, 616F.2d at 1246.

9We disagreed with the pensioners' reasoning:

The plaintiffs' argument here fails to recog nize the breadth of the Social Security program. Soci al Security provides benefits for disabilities, see 42 U .S.C. S 423 (1976), as well as benefits for old age. Thu s, the Social Security offset that Congress has approved i ncludes, perforce, an offset against pension benefits for disability benefits. The Social Security off set, since it includes an offset of disability benefits, m akes any purported distinction between the Social Sec urity offset and the Workmen's Compensation offset meanin gless. The disability offset, included within the S ocial Security offset, thus compels us to reject any purpor ted 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 challeng e rather than a challenge under the Constitution, the precepts enunciated in that case are controlling he re. Our holding in Buczynski can be distilled to a single c oncept: An offset of pension benefits by a portion of the bene fits received from worker's compensation is permissible, in the same manner as an offset of Social Security benefit s, because both offsets encompass, at least in part,"a n offset of disability benefits, mak[ing] any purported dist inction 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 en forced by the City bears a rational relation to the stated go vernment purposes of maintaining fiscal integrity and preven ting payment of duplicate benefits, and therefore withst ands equal protection scrutiny.6

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6. The City's position is made stronger by the arbi tration award's provision concerning disabled retirees whose worker 's compensation

benefits terminate. The award states that once a re tiree's worker's compensation benefits cease, the retiree will recei ve the 75% pension given to all non-disabled retirees. Thus, at no poi nt will a retired disabled Pittsburgh police officer receive less tha n his non-disabled

counterparts.

10Decisions from several state courts, relied upon by the

Retirees, do not qualify as proper analogies or per suasive argument. See, e.g., Industrial Claim Appeals Offic e v. Romero, 912 P.2d 62 (Colo. 1996) (in banc ); State ex rel. Boan v. Richardson, 482 S.E.2d 162 (W. Va. 1996). T he decision in Buczynski controls this case and the di strict court erred when it denied the City's motion for ju dgment as a matter of law on the equal protection claim.

B.

Similarly, the Retirees' due process claim should h ave been dismissed. The City concedes that the Retirees had a valid property interest in their employment and ret irement benefits. We must, therefore, focus on whether the Retirees retired voluntarily or were constructively discharg ed. See Zepp v. Rehrmann, 79 F.3d 381, 385-386 (4th Cir. 19 96). To make this determination, we examine "the surroun ding circumstances to test the ability of the employee t o 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 remain s intact until the employee presents evidence to esta blish that the resignation or retirement was involuntaril y procured. Id. If an employee retires of his own fre e will, even though prompted to do so by some action of his employer, he is deemed to have relinquished his pro perty interest in his continued employment for the govern ment, 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. 198 8). 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 e mployer forces the resignation or retirement by coercion or duress, or 2) when the employer obtains the resignation or retirement by deceiving or misrepresenting a materi al fact to the employee. See Hargray, 57 F.3d at 1568.

11The Retirees contend that they signed the supplemen tal

agreements because of material misrepresentations m ade by Kelly Ryan in the letter she sent on behalf of S edgwick James to an attorney for the F.O.P. The Retirees co ntend that Ryan's letter led them to believe that if they did not sign the supplemental agreements, they would not on ly lose their Heart and Lung Act benefits, but also their p ension and any available worker's compensation benefits. R yan's letter, dated December 3, 1992, stated, in relevant part:

Enclosed are various supplemental agreements for the following claimants who are currently receiv ing Heart and Lung Benefits. The medical information i n 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 sup plemental agreements executed and returned to me by De cember 14, 1992. Once the agreements are received, their wages will be reduced to the compensation ra te indicated on the agreement. If anyone decide s not to sign the agreement, then I will have no reco urse but to file a Termination with the Heart and Lung P anel.

App. at 137. The Retirees argue that their due proc ess rights were violated because the letter coerced the m 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 let ter. 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 reti re 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 requireme nts for early retirement incentive), 123-124 (Leheny's Reti rement Incentive Window Irrevocable Application Form, date d 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 bee n retired by the City. Thus, the City, by asking the Retirees to sign the supplemental agreements, had merely approved th e Retirees' retirement and had made a determination t hat the

12Retirees were permanently disabled. Ryan's letter i ndicates

just that: She would seek to terminate Heart and Lu ng 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 concerni ng the applicable procedures for terminating Heart and Lung Act benefits, no part of the letter would lead a re asonable 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 i f the hearing conducted by the Employer . . . [is] inhere ntly biased.' " Dykes v. SEPTA, 68 F.3d 1564, 1571 (3d C ir. 1995) (quoting Jackson v. Temple Univ., 721 F.2d 93 1, 933 (3d Cir. 1983)). Grievance procedures outlined in a collective bargaining agreement can satisfy due pro cess requirements. Id. at 1572 n.6.

Because Leheny testified that he received the arbit ration 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 evidenc e to suggest that the Retirees spoke to a supervisor or representative of the F.O.P. or the City prior to s igning the supplemental agreement. The Retirees had ten days t o investigate the implications of refusing to sign th e supplemental agreement, ten days to seek the advice of a union representative concerning available grievance procedures if they did not wish to sign the supplem ental agreement. If the officers were not convinced that they were permanently disabled, their recourse was to go befo re an arbitrator to contest the City's determination of p ermanent disability. Officer Marunich followed this procedur e, and as a result is not included in the Retirees' due proce ss claim. Leheny and Ramsey did not. Not availing themselves of the process that was available to them, they may not co mplain 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

.

13C.

The district court properly granted summary judgmen t 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 pa rt:

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 emp loyees, employee compensation, job training, and oth er 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 o f the services, programs, or activities of a publi c entity, or be subjected to discrimination by any such enti ty.

42 U.S.C. S 12132. The Retirees contend that the arbitration award's early retirement incentive prov ision violates their right to equal compensation under th e ADA.

Although the parties dispute whether the Retirees w ere in fact "disabled" for purposes of the ADA, we need no t

address this issue to conclude that the ADA claim w as properly dismissed. Assuming that the Retirees were "disabled," we conclude that they failed to present evidence demonstrating that the City impinged upon their rig ht to equal compensation.

As the district court properly noted, there is no e vidence that the Retirees are receiving less than their non -disabled counterparts who receive a 75% pension without serv ice

increments. The evidence establishes that disabled retired officers, who receive a 50% pension with service in crements plus a 66 2/3% worker's compensation award, actuall y receive greater compensation than non-disabled reti rees. Indeed, the Retirees receive more than 100% of the salary they received while actively employed as police off icers.

14The Retirees argue that even though they may receiv e

greater compensation than their non-disabled counte rparts, they are nonetheless victims of ADA-based discrimin ation

because non-disabled retirees are able to obtain ne w employment for any amount of compensation and, beca use of their disability, they are limited to the 66 2/3 % worker's compensation benefits they receive.

Without considering that the Retirees would still f ace the possibility of receiving lesser earnings than non-d isabled retirees even if they received a 75% pension becaus e nondisabled retirees would be able to obtain employmen t elsewhere, we conclude that their argument is not persuasive. The Retirees are not prevented from rec eiving a 75% pension if they so desire. The arbitration awar d clearly states that every police officer who has attained 5 0 years of age and 25 years of service is entitled to receive a 75% pension upon retirement from the police force. Disa bled 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 her e that prevents a retired police officer from rejecting wo rker's compensation payments and thereby receiving the 75% pension. This is made quite clear by the express la nguage of the arbitration award:

In the event that such employee's worker's compensation benefits are reduced or elimina ted after retirement, the employee shall be entitled t o such pension enhancement as is necessary to maint ain 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 i n Ford v. Schering-Plough Corp., supra, which, surprisingl y, the Retirees have cited as support for their position. The plaintiff in that case alleged that her former empl oyer's insurance plan, which provided a two-year cap for b enefits for mental disabilities while providing no cap for benefits for physical disabilities, violated the ADA. After dete rmining that the ADA permits disabled individuals to sue th eir former employers regarding their disability benefit s, we

15addressed the disparity in available benefits for m ental and

physical disabilities. We held that the plaintiff h ad 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 cove rage, meaning that every Schering employee receive d equal treatment. So long as every employee is offe red the same plan regardless of that employee's cont emporary or future disability status, then no discrim ination has occurred even if the plan offers different c overage 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 disabili ties at the same time it continued benefits for employees with other types of disabilities. Yet, we ruled that the polic y did not

violate the ADA.

The pension plan and arbitration award presented he re fall within the teachings of Ford. Every police off icer who has attained 50 years of age and 25 years of servic e 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 futur e disability status." The individual retiree is given the responsibility to decide whether or not to accept w orker's compensation in lieu of a 75% pension. Because ever y eligible retiree is entitled to receive a 75% pensi on, and because each of the Retirees is permitted to receiv e a 75% pension when he no longer receives worker's compens ation benefits, there is no violation of the ADA.

IV.

In light of the view we take, we need not address t he 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.

16A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

17