1The amended complaint terminated the Williamsport Bureau of Police as a

defendant in the action.

1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DENNIS G. HARMAN, :

: Civil Action No. 4:04-2027

Plaintiff :

:

v. :

: (Judge McClure)

MICHAEL R. RAFFERTY, :

CITY OF WILLIAMSPORT and, :

MICHAEL W. FOUST, :

:

Defendants :

M E M O R A N D U M

July 26, 2005

BACKGROUND:

On September 13, 2004, plaintiff, Dennis G. Harman, commenced this civil

action by filing a complaint in the Middle District of Pennsylvania. On February 23,

2005, plaintiff filed an amended complaint.1 The amended complaint alleges that

defendants violated the Pennsylvania Human Relations Act (“PHRA”), 43 Pa.

C.S.A. §§ 951-963, and the Americans with Disabilities Act (“ADA”), 42 U.S.C.

§§ 12131-12189, when they terminated plaintiff’s employment with the Williamsport

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2

Bureau of Police.

On May 13, 2005, defendants filed the instant motion for summary judgment

pursuant to Federal Rule of Civil Procedure 56. In compliance with the Local Rule

56.1, defendants contemporaneously filed a separate statement of material facts

with references to the parts of the record that support their statements. The motion

is now fully briefed and ripe for our decision. For the following reasons we will

grant defendants’ motion, and judgment will be entered in favor of defendants and

against plaintiff.

DISCUSSION:

I. Standard of Review

It is appropriate for a court to grant a motion for summary judgment “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 a judgment as a matter of law.” Fed. R. Civ.

P. 56(c).

“If the nonmoving party has the burden of persuasion at trial, ‘the party

moving for summary judgment may meet its burden by showing that the evidentiary

materials of record, if reduced to admissible evidence, would be insufficient to

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3

carry the nonmovant's burden of proof at trial.’” Jalil v. Avdel Corp., 873 F.2d

701, 706 (3d Cir. 1989) (quoting Chippolini v. Spencer Gifts, Inc., 814 F.2d 893,

896 (3d. Cir. 1987)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

In evaluating a motion for summary judgment the court will draw all

reasonable inferences from the evidence in the record in favor of the nonmoving

party. Am. Flint Glass Workers Union v. Beaumont Glass Co., 62 F.3d 574, (3d

Cir. 1995). The nonmoving party, however, cannot defeat a motion for summary

judgment by merely offering general denials, vague allegations, or conclusory

statements; rather the party must point to specific evidence in the record that

demonstrates that there is a genuine issue as to a material fact. See Celotex, 477

U.S. at 32; Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 252 (3d

Cir. 1999).

II. Factual Background

Harman was a police officer employed by the City of Williamsport. After

undergoing two surgeries on crushed vertebrae Harman was unable to work fullduty police work. Initially, on the basis of his doctor’s prognosis, Harman

anticipated that he would be able to return to work as an officer in a full-duty

capacity. Between 1997 and 2002, while expecting to return to full duty, Harman

Case 4:04-cv-02027-JFM Document 20 Filed 07/26/05 Page 3 of 23
4

worked in a light-duty capacity for the police department. After his doctor

determined in the summer of 2002 that Harman would never be able to return to

full-duty work, and was not capable of performing the required tasks of full-duty

police work, the City of Williamsport terminated Harman’s employment.

The following is almost entirely adopted from defendants’ statement of

material facts. (Rec. Doc. No. 11.) This is the case because plaintiff’s response

has not come forward with any new evidence to contradict the evidence offered by

defendants. (See Rec. Doc. No. 17, Pl’s Resp. Defs.’ Statement of Material

Facts.) Where plaintiff has not admitted the defendants’ statement, plaintiff has

asserted that he denies the statement as stated. We note at the outset that none of

plaintiff’s denials, which do not bring forth any new or contradictory evidence to

the court, has a material effect on the outcome of our decision. 

Harman had two surgical operations to fuse crushed vertebrae. In November

1989, Harman underwent his first vertebrae surgery. Then in April 1997, Harman

underwent a second operation on his vertebrae. Both surgeries were performed by

Rodwan K. Rajjoub, M.D.. In 1989 the City of Williamsport provided Harman

time off to undergo surgery and to recuperate. Following the original surgery,

Harman returned to full-duty work as a police officer, and was asymptomatic from

Case 4:04-cv-02027-JFM Document 20 Filed 07/26/05 Page 4 of 23
5

1989 to 1996. Then, when Harman was operated on in 1997, the City again

provided Harman time off to undergo surgery and to recuperate.

Upon returning to work after his second vertebrae surgery, Harman was

assigned to light duty with the police department. Meanwhile, Harman continued to

treat with Dr. Rajjoub and continued working light duty with the expectation that he

would be able to return to full-duty work. (Rec. Doc. No. 12, Ex. A, at 25, 27-29.) 

In September 1997, Dr. Rajjoub opined that Harman would be able to “return to his

duty as a police officer.” (Rec. Doc. No. 12, Rajjoub Letter to Stoltenberg, Ex B;

see also Rec. Doc. No. 12, Ex. A, at 30-31.) Dr. Rajjoub in November 1997 again

noted Harman should “continue light duty work at present time.” (Rec. Doc. No.

12, Rajjoub Office Notes Visit Nov. 11, 1997, Ex. C.) Dr. Rajjoub stated that he

would re-evaluate Harman later, but that at that time Harman “should not go to full

duty as [a] police officer.” (Rec. Doc. No. 12, Ex. C.) Harman anticipated that he

would be able to return to full-duty work. In May 1998, Dr. Rajjoub again advised

Harman to continue light-duty work. (Rec. Doc. No. 12, Ex. C.) In December

1998, Harman had surgery on his left elbow and was provided time off by the City

of Williamsport to undergo the surgery and to recuperate. In January 1999,

Harman returned to work performing light-duty assignments.

Case 4:04-cv-02027-JFM Document 20 Filed 07/26/05 Page 5 of 23
2Plaintiff asserts that “nowhere is light duty work in the Williamsport Police

Department codified or defined as ‘temporary.’” (Rec. Doc. No. 12, Ex. G, at 21.) 

That the position is not codified as temporary is irrelevant.

6

Light duty can be temporarily2 extended by the police department to a police

officer in order to help the officer come back to work until the officer recovers

from his/her injuries and can return to full duty. (See Rec. Doc. No. 12, Tr. Dep.

Michael W. Foust, Ex. G, at 16-24, 33; Rec. Doc. No. 12, Tr. Dep. Robert Fox,

Ex. H, at 10-14.) Harman worked in this capacity for an extended period of time,

over a five-year period.

Then, on July 30, 2002, after Dr. Rajjoub examined Harman he opined:

I do not recommend that he go back to full duty

unrestricted since he had two previous disc fusions. I do

believe that if he goes to full duty unrestricted he may

injure himself further as a police officer. I do not

recommend that he return to that job. He should be able

to continue the same job he is doing at the present time

permanently.

(Rec. Doc. No. 12, Rajjoub History & Physical Jul. 30, 2002, Ex. I.) The July 30,

2002 report was designed to be an objective assessment of Harman’s medical

condition and prognosis. The last time Harman treated with Dr. Rajjoub was in

2002.

Harman was a member of the Fraternal Order of Police (FOP), and the FOP

Case 4:04-cv-02027-JFM Document 20 Filed 07/26/05 Page 6 of 23
7

was his collective bargaining representative. Harman involved his Union in

discussions with the City about his future with the police department. On

September 26, 2002, Harman, Corporal Whiteman, and Agent Soronge met with

Robert Fox, who at that time was Williamsport’s Director of Finance and

Personnel. Agent Soronge and Corporal Whiteman were acting as FOP

representatives on behalf of Harman at the meeting. The meeting ended abruptly

when Fox requested Harman’s representatives to provide an example of an

accommodation that would allow Harman to work as a police officer in light of Dr.

Rajjoub’s letter stating that Harman could not work in full-duty capacity as a police

officer without risking serious injury to himself. On September 27, 2002, Harman

sent a memo to Fox indicating that he would be speaking with the FOP’s solicitor

about the prior day’s meeting.

By letter dated October 1, 2002, Michael R. Rafferty, then Mayor of

Williamsport, advised plaintiff that he was no longer eligible for employment in the

Williamsport Bureau of Police, “effective today, October 1, 2002 at 2:00 p.m.” 

(Rec. Doc. No. 8, at 3, ¶ 15; Rec. Doc. No. 9, at 2, ¶ 15; Rec. Doc. No. 12, Ex. J,

at 16-18.) In relevant part, the letter also advised Harman as follows:

Your efforts to rehabilitate yourself after a work-related

injury have been beyond question. The Administration

Case 4:04-cv-02027-JFM Document 20 Filed 07/26/05 Page 7 of 23
8

has been a partner in offering light-duty jobs to assist you

in your efforts, with the understanding that your disability

was temporary and that you would, in time, return to your

pre-injury position. Unfortunately, we now understand

that, based on a recent medical opinion, your medical

disability is no longer considered to be temporary, but

permanent. As you know, the City does not have any

permanent light-duty positions available in the police

force, and you are no longer able to perform, under your

physician s directive, the duties of any police position

that is covered by the collective bargaining agreement.

We have attempted to discuss with you and your

designated Union representatives possible reasonable

accommodations that might be available, but that dialogue

failed, without any reasonable accommodation being

proposed by you or your representatives.

Accordingly, you are no longer able to perform the

essential functions of your position, either with or without

reasonable accommodation. Therefore

you are no longer eligible for employment in the

Williamsport Bureau of Police, effective today,

October 1, 2002 at 2:00 p.m.

(Rec. Doc. No. 12, City of Williamsport Letter Oct. 1, 2002, Ex. M.)

By letter dated October 4, 2002, Mayor Rafferty advised plaintiff as follows:

Effective at the end of the workday on October 1, 2002,

the light-duty position that had been created for you

solely to allow you to work during a period of what was

then believed to be a temporary disability was eliminated.

(Rec. Doc. No. 12, City of Williamsport Letter Oct. 4, 2002, Ex. N.)

Case 4:04-cv-02027-JFM Document 20 Filed 07/26/05 Page 8 of 23
3Harman receives workers compensation benefits. Harman also receives monthly

pension benefits from the City of Williamsport. Harman expects to receive these

benefits for the remainder of his life. On October 4, 2002, Harman submitted an

application for a disability pension retroactive to October 1, 2002. (Rec. Doc. No.

12, Application for Pension, Ex. O.) The only pension for which Harman is

presently eligible is a disability pension because he has not attained the appropriate

age or worked sufficient years to qualify immediately for any other pension. 

9

The October 4th letter also advised Harman in part:

This is to clarify potential confusion regarding your job

status. Effective at the end of the workday on October 1,

2002, the light-duty position that had been created for

you solely to allow you to work during a period of what

was then believed to be a temporary disability was

eliminated. That elimination of the position occurred

because of medical information from your physician that

your physical impairments were no longer temporary, but

permanent.

With the elimination of the position that had been

specifically created for you during your then-temporary

disability, there are no other positions in the police force

with respect to which you can perform the essential

functions, either with or without accommodation. If and

when you feel that there are established police officer

positions that you are capable of performing, please

notify us.

(Rec. Doc. No. 12, Ex. N.)

Since October 1, 2002, Harman has not independently sought employment

because of the “pending litigation.” (Rec. Doc. No. 12, Ex. A, at 13.) Harman,

has however, applied for jobs through Workers Compensation.3 Harman has not

Case 4:04-cv-02027-JFM Document 20 Filed 07/26/05 Page 9 of 23
Harman receives a monthly pension of approximately $2,363.56. Both the pension

benefits and workers compensation benefits are not taxed by the federal

government. Following his separation from employment, Harman also received

unemployment compensation. Harman receives family health coverage from the

City of Williamsport payable for the rest of his life. Harman continues to receive

annually tax-free benefits of $49,000, plus paid health coverage from the City of

Williamsport.

4Plaintiff contends that this statement is only supported by Rafferty’s

personal knowledge. However, plaintiff has not provided evidence that plaintiff

told the police that he was capable of performing the duties of a police officer. 

Furthermore, the complaints before this court and the Pennsylvania Human

Relations Commission do not reconfirm to the city that Harman believes he is

capable of performing the duties of a police officer.

10

contacted the City since October 4, 2002 to indicate that he is capable of

performing the duties of a police officer. (Rec. Doc. No. 12, Ex. J, at 48; Rec.

Doc. No. 12, Ex. N.)4 Harman acknowledges that he has limitations in lifting and

cannot get into fights because it could damage his neck according to the medical

advice Harman received from Dr. Rajjoub. Harman’s limitations are a result of his

injuries to his neck and back.

In order to perform the duties of a police officer, Harman needs to be

certified under “Act 120.” All police officers who perform work for the City of

Williamsport are so certified. Harman is no longer certified under “Act 120.” 

Harman continues to seek to avoid any physical altercations that could injure his

back. Harman has cervical and bilateral arm pain, experiences numbness and

Case 4:04-cv-02027-JFM Document 20 Filed 07/26/05 Page 10 of 23
11

tingling, and has reduced range of motion to his neck and waist.

Harman filed a complaint with the Pennsylvania Human Relations

Commission on or about March 25, 2003; the Commission dismissed the

complaint on or about June 15, 2004. On October 29, 2003, the Pennsylvania

Human Relations Commission asked Thomas B. York, Esquire, counsel for

Harman to respond to certain information requests.

On February 8, 2004, York advised the Pennsylvania Human Relations

Commission as follows:

Mr. Harman is only limited in that he cannot lift very

heavy objects and that he should attempt to avoid serious

physical trauma to his back. . . . he should attempt to

avoid significant physical altercations that might cause

him further injury to his back.

(Rec. Doc. No. 12, York Feb. 18, 2004 Letter, Ex. R, at 1, ¶ 1.) The PHRC, by

letter dated June 15, 2004, advised Harman that it was dismissing his complaint of

discrimination because the facts of the case did not establish that probable cause

existed to credit his allegations of unlawful discrimination. (Rec. Doc. No. 12,

PHRC June 15, 2004 Letter, Ex. S.)

 Harman is able to drive, dress himself, and brush his teeth. Harman is

capable of doing house and yard work including cutting the grass on a riding

Case 4:04-cv-02027-JFM Document 20 Filed 07/26/05 Page 11 of 23
5Harman asserts it is improper for defendants to rely on this evidence, but he

has not provided any evidence to the contrary. 

6The plaintiff admits this date, (Rec. Doc. No. 17, Pl’s Resp. Defs’

Statement of Material Facts, at 7, ¶ 55.), however, the arbitration decision indicates

12

mower. Under deposition, Harman indicated something that he cannot do around

the house is hang drywall.

 Harman stated that he could do the work that he had been doing as an agent

for the Williamsport Police Department. Foust, the former Chief of Police for the

City of Williamsport, testified at his deposition that he did not know of any

positions available in the police department for Harman.5 A police officer/agent

who is working full duty can be pressed into service to apprehend suspects in a

time of emergency. Under deposition, Harman testified that he could use a firearm

but he was uncertain of whether he would be able to restrain a suspect. (Rec. Doc.

No. 12, Ex. A, at 121-22.)

Although Harman believes he is capable of performing the requirements for

an investigator position, Harman acknowledges that there is no crime scene

investigator position with the City of Williamsport Bureau of Police. On October

1, 2002, Harman filed a grievance challenging his separation from employment. 

Harman sought reinstatement to his former position along with back pay and

benefit. The arbitration hearing was held on December 31, 2003,6 before a neutral

Case 4:04-cv-02027-JFM Document 20 Filed 07/26/05 Page 12 of 23
the date of the hearing was July 31, 2003. (Rec. Doc. No. 12, Ex. U.)

13

arbitrator and, following briefing, the arbitrator issued his award; the grievance was

denied. (Rec. Doc. No. 12, Decision in Grievance July 31, 2003, Ex. U.)

The allegations against defendants Michael Rafferty and Michael Foust are

solely based upon the decision to terminate Harman’s employment. Mayor

Rafferty consulted with the City Solicitor concerning full compliance with the ADA

and the PHRA. Foust is now a retired police officer, but served as Chief of Police

when Harman was separated from employment. Mayor Rafferty made the decision

to separate Harman from employment. 

III. Harman’s ADA Claim

The ADA seeks to protect individuals with disabilities from discrimination by

employers. See 42 U.S.C. § 12101(b). Harman bears the initial burden of

establishing a prima facie case of disability discrimination under the burden-shifting

framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), by a

preponderance of the evidence. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S.

502, 506 (1993); Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 187 & n.5

(3d Cir. 2003); Bearley v. Friendly Ice Cream Corp., 322 F. Supp. 2d 563, 574

(M.D. Pa. 2004). To establish a prima facie case under the ADA, Harman must

Case 4:04-cv-02027-JFM Document 20 Filed 07/26/05 Page 13 of 23
14

demonstrate that he: (1) is disabled within the meaning of the ADA; (2) was

qualified to perform the essential functions of his job, with or without

accommodation; and (3) suffered an adverse employment decision because of

discrimination. See Williams v. Phila. Housing Auth. Police Dep’t, 380 F.3d 751,

761 (3d Cir. 2004) (citing Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d

Cir. 1999)).

The ADA defines “disability” as: “(A) a physical or mental impairment that

substantially limits one or more major life activities of such individual; (B) a record

of such impairment; or (c)) being regarded as having such an impairment.” 42

U.S.C. § 12102(2); see 29 C.F.R. § 1630.2(g). Importantly, simply having an

impairment that does not substantially limit a major life activity is not a disability,

and therefore is not covered by the ADA. See Toyota Motor Mfg., Ky., Inc. v.

Williams, 534 U.S. 184, 195 (2002).

Major life activities are defined as “functions such as caring for oneself,

performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and

working.” 29 C.F.R. § 1630.2(i). Major life activities are “those basic activities

that the average person can perform with little or no difficulty.” 29 C.F.R. Pt.

1630, App. § 1630.2 (I).

Case 4:04-cv-02027-JFM Document 20 Filed 07/26/05 Page 14 of 23
15

A “substantially limiting” impairment is an impairment that renders an

employee “unable to perform a major life activity that the average person in the

general population can perform,” or that significantly restricts the employee as to

“the condition, manner or duration under which an individual can perform a

particular major life activity as compared to the condition, manner, or duration

under which the average person in the general population can perform that same

major life activity.” 29 C.F.R. § 1630.2(j); see Toyota, 534 U.S. at 195-96. 

Pertinent factors for the court to consider include: “the nature and severity of the

impairment; the duration or expected duration of the impairment; and the permanent

or long-term impact, or the expected permanent or long-term impact of or resulting

from the impairment.” 29 C.F.R. §§ 1630.2(j)(2)(i)-(iii); see Toyota, 534 U.S. at

196.

A. Harman has Failed to Make a Prima Facie Case that He is a 

Qualified Individual With a Disability under the ADA

For the purposes of the instant summary judgment motion defendants have

conceded that Harman has a physical impairment. (Defs.’ Br. Supp. Mot. Summ.

J., Rec. Doc. No. 14, at 4.) That impairment, however, must limit one or more of

Harman’s major life activities in order for Harman to be considered a qualified

individual with a disability under the ADA. We agree with defendants, and find that

Case 4:04-cv-02027-JFM Document 20 Filed 07/26/05 Page 15 of 23
7Harman cannot hang drywall because it requires him to lift heavy objects

over his head. (Rec. Doc. No. 12, Ex. A, at 110-11.)

8Harman seeks to avoid fighting and physical confrontations in order to

avoid re-injuring his neck. (Rec. Doc. No. 12, Ex. A, at 14-15, 77.)

16

Harman has not met his evidentiary burden of establishing a prima facie case, more

specifically that Harman’s impairment limits him in any major life activity.

The evidence in the record indicates that Harman is limited in the activities of

hanging up drywall, 7 fighting, and physical confrontations.8 None of these manual

tasks are of central importance to Harman’s daily life. See Toyota, 534 U.S. at

197; see e.g., Bearley, 322 F.Supp. 2d at 565 (noting walking and standing are

major life activities). Plaintiff asserts in his brief in opposition to defendants’

motion for summary judgment that “[g]iven the opportunity, Mr. Harman will

explain to the jury how his injury impacts his daily life and specifically ‘major life

activities’ as the phrase is used by the ADA.” (Rec. Doc. No. 17, at 3.) This

vague assertion does not establish a prima facie case for the issue to proceed to

trial; plaintiff has not carried his evidentiary burden at the summary judgment stage. 

See Williams, 380 F.3d at 761; Bearley, 322 F. Supp. 2d at 574; see also St.

Mary’s Honor Ctr., 509 U.S. at 506; Shellenberger, 318 F.3d at 187 & n.5. 

Perplexingly, plaintiff’s counsel has placed his own burden on defendants. (See

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17

Rec. Doc. No. 17 at 4 (“The Defendants have not asked Mr. Harman to identify

every specific activity in his life that is impacted by his impairment, so they cannot

presume to have elucidated all such evidence. The Defendants cannot extrapolate

their limited evidence to conclude that Mr. Harman is not limited in any major life

activity.”))

Next, Harman asserts that he is limited in the major life activity of working. 

In order to be substantially limited in the major life activity of working, Harman

must be “significantly restricted in the ability to perform either a class of jobs or a

broad range of jobs in various classes as compared to the average person having

comparable training, skills and abilities.” Sutton v. United Air Lines, Inc., 527 U.S.

471, 473 (1999); 29 C.F.R. § 1630.2(j)(3)(i). Plaintiff in his brief opposing

summary judgment asserts “Harman’s back injury limits him from performing any

job that requires strain on his back. That is to say, Mr. Harman cannot perform the

class of jobs requiring any significant physical demand on his back.” (Rec. Doc.

No. 17, at 4.) There is no medical evidence before the court indicating a lifting

restriction placed on Harman. There is evidence that Harman should avoid any

severe trauma to his back, but there is nothing in the record to suggest what type of

restriction. A letter signed by his counsel states “Harman is only limited in that he

Case 4:04-cv-02027-JFM Document 20 Filed 07/26/05 Page 17 of 23
9However, plaintiff’s doctor stated in his July 30, 2002 report that, “I do not

recommend that [Harman] go back to fully duty unrestricted since he had two

previous disc fusions. I do believe that if he goes to full duty unrestricted he may

injure himself further as a police officer. I do not recommend that he return to that

job.” (Rec. Doc. No. 12, at Ex. I.) Harman admitted that his July 30, 2002 medical

report was an objective medical assessment and prognosis. That evaluation found

that Harman should not return to full duty police work because of the likelihood of

injury. (Rec. Doc. No. 12, Ex. I.)

18

cannot lift very heavy objects and in that he should attempt to avoid serious trauma

to his back.” (Rec. Doc. No. 12, Ex. R.) Counsel’s statement is vague and not

evidence to support the claim that plaintiff is limited in a class of jobs that put a

strain on his back.

Finally, plaintiff argues in the alternative that he trained to be a police officer,

and that defendants now assert his back injury prevents him from performing his

chosen profession as a police officer. (Rec. Doc. No. 17, at 5.)9 Plaintiff then

notes, “this is one class of jobs, at least according to the Defendants, from which

Mr. Harman has been excluded.” (Rec. Doc. No. 17, at 5.) “Police officer” is not

a class of jobs; it was Harman’s chosen profession. See Sutton, 527 U.S. at 492. 

(“To be substantially limited in the major life activity of working, then, one must be

precluded from more than one type of job, a specialized job, or a particular job of

choice.”) Again, plaintiff’s vague assertions are insufficient to survive defendants’

summary judgment motion.

Case 4:04-cv-02027-JFM Document 20 Filed 07/26/05 Page 18 of 23
19

Furthermore, plaintiff has not made a prima facie case that he is capable of

performing the essential functions of the job of a police officer with or without a

reasonable accommodation. Plaintiff has admitted that the objective medical

assessment conducted by his physician has found him unable to perform the duties

of a police officer working in an unrestricted capacity. Harman is not certified

under Act 120, receives disability pension benefits, and seeks to avoid physical

altercations so as to prevent trauma to his injured back. Of course a police officer

in full-duty capacity can be called upon to apprehend suspects, a task which might

require altercations. Harman has not indicated, other than the modification of his

temporary position into a permanent position, how he can perform the essential

functions of a full-duty police officer, the position he was employed to perform by

the City of Williamsport. Plaintiff has failed to establish a prima facie case of

discrimination under the ADA.

B. The ADA does not Require Defendants to Transform a 

Temporary Light Duty Position Into a Permanent Position

As noted above, plaintiff has failed to establish a prima facie case that he was

discriminated against on the basis of a disability. We note, however, that the crux

of plaintiff’s argument is that defendants owe plaintiff a duty to create a permanent

light-duty position for Harman, i.e., that a reasonable accommodation to Harman is

Case 4:04-cv-02027-JFM Document 20 Filed 07/26/05 Page 19 of 23
20

to offer him a light-duty position like the temporary one he held at the time of his

discharge from employment, and a position that would not require him to perform

the essential functions of a police officer. The ADA does not require an employer

to create a new position to accommodate an employee with a disability, nor does it

require an employer to transform a temporary light-duty position into a permanent

position. Buskirk v. Apollo Metals, 307 F.3d 160, 169 (3d Cir. 2002) (citing

Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996) and Mengine v. Runyon, 307

F.3d 160 (3d Cir. 2002)). 

IV. Harman’s PHRA Claim

The Pennsylvania Human Relations Act forbids “any person, employer,

employment agency, labor organization, or employee, to aid, abet, incite, compel,

or coerce the doing of any act declared by this section to be an unlawful

discriminatory practice.” 43 Pa. C.S.A. § 955(e). Courts generally interpret the

PHRA’s provisions identically with the corresponding provisions of the ADA. 

Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 382 (3d Cir. 2002) (citing Kelly v.

Drexel University, 94 F.3d 102, 106 (3d. Cir. 1996)); see also Buskirk, 307 F.3d at

166 n.1. Therefore, because we find that defendants’ are entitled to summary

judgment on plaintiff’s ADA claim Harman’s PHRA claim fails.

Case 4:04-cv-02027-JFM Document 20 Filed 07/26/05 Page 20 of 23
21

CONCLUSION:

For the above-stated reasons, by accompanying order we will grant

defendants’ motion for summary judgment, and enter judgment in favor of

defendants and against plaintiff.

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

Case 4:04-cv-02027-JFM Document 20 Filed 07/26/05 Page 21 of 23
IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DENNIS G. HARMAN, :

: Civil Action No. 4:04-2027

Plaintiff :

:

v. :

: (Judge McClure)

MICHAEL R. RAFFERTY, :

CITY OF WILLIAMSPORT and, :

MICHAEL W. FOUST, :

:

Defendants :

O R D E R

July 26, 2005

For the reasons set forth in the accompanying memorandum,

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. The motion of defendants for summary judgment on the complaint is

granted. (Rec. Doc. No. 13.)

2. Final judgment is entered in favor of defendants and against plaintiff. 

3. The Clerk is directed to close the case file.

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

Case 4:04-cv-02027-JFM Document 20 Filed 07/26/05 Page 22 of 23
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Case 4:04-cv-02027-JFM Document 20 Filed 07/26/05 Page 23 of 23