Eric Lekich v. Colonel Frank Pawlowski

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-1898
ERIC LEKICH,
Appellant
v.
COLONEL FRANK PAWLOWSKI,* in his official capacity as Chairman of
Municipal Police Officers Educational Training Commission (MPOETC);
DOYLESTOWN BOROUGH
*(Pursuant to Fed. R. App. P. 43(c))
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 2-08-cv-01048
District Judge: The Honorable Berle M. Schiller
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
January 14, 2010
Before: SCIRICA, Chief Judge, BARRY, and SMITH Circuit Judges
(Filed: January 15, 2010)
OPINION
SMITH, Circuit Judge.
Plaintiff Eric Lekich appeals from the judgment of the United States District

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MPOETC, incorrectly named by Plaintiff, and thus in the caption, as the Municipal1
Officers’ Educational Training Commission, is an arm of the Pennsylvania State Police and is
responsible for setting the minimum standards required of applicants to be police officers within
the Commonwealth of Pennsylvania and certifying that an applicant has met them. 53 Pa. Cons.
Stat. § 2164(8), (12). It acts on an application for certification only by direction of a police
department that has extended an offer of employment to the applicant. 37 Pa. Code § 203.15(c).
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Court for the Eastern District of Pennsylvania entering summary judgment in favor
of Defendants and against him on his claims of disability discrimination and
retaliation under the Americans with Disabilities Act, Rehabilitation Act, and
Pennsylvania Human Relations Act. We will affirm.
I.
Because we write only for the benefit of the parties, we presume familiarity
with the facts and recite them only briefly. Eric Lekich is a 2006 graduate of the
Municipal Police Officers’ Training Program of Montgomery County Community
College. After graduation he interviewed with the Chief of Police of Doylestown
Borough and received a conditional offer for a part-time police officer position.
The Chief told Lekich that he had to return a physical evaluation form to the
Police Department after having it filled out by two physicians, with whom
appointments had already been made. The Chief also notified the Municipal
Police Officers’ Education and Training Commission (“MPOETC”) that he had
given Lekich an offer of employment conditioned on his passing the required tests.
MPOETC then scheduled a written examination for Lekich.1

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Lekich went to his physical examinations. The doctor performing the vision
test indicated on the evaluation form that Lekich lacked normal color perception.
Lekich returned the evaluation form to the Doylestown Police Department as he
was instructed. A few days later he received a call from the Chief of Police that
his conditional job offer was being withdrawn because of the vision test result.
Because the conditional offer was withdrawn, the Doylestown Police Department
never forwarded a packet on Lekich to MPOETC for processing.
Lekich then contacted MPOETC to inquire about retaking the vision test but
was told he had no recourse. He nevertheless saw another doctor to retake the test.
This doctor confirmed that Lekich had a color perception problem, but also stated
it was minor and, in his opinion, would not interfere with Lekich’s working as a
police officer.
Lekich then retained counsel and, through him, sought to have MPOETC
either waive the vision requirement or consider the newer vision exam. MPOETC
informed counsel that it was authorized only to process applications from police
departments. Thus, it could do nothing for Lekich without his having an offer of
employment and an application packet sent to MPOETC on his behalf. Lekich
sent further information to MPOETC, but it took no further action.
Lekich filed this action seeking legal and equitable relief for Defendants’
alleged discrimination and retaliation against him. His Amended Complaint, after

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By operation of Federal Rule of Appellate Procedure 43(c), Colonel Frank Pawlowski2
has been automatically substituted for Colonel Jeffrey B. Miller because he succeeded him to the
position of Chairman of MPOETC.
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stipulating to the dismissal of two counts only as to one of the Defendants,
asserted claims as follows: Count I asserted a claim under the Americans with
Disabilities Act, 42 U.S.C. §§ 12101, et seq. (“ADA”), against Colonel Jeffrey B.
Miller, in his official capacity as Chairman of MPOETC; Count II asserted a claim
under the Rehabilitation Act, 29 U.S.C. §§ 701, et seq. (“RA”), against Colonel
Miller in his official capacity and against Doylestown Borough; Count III asserted
an equal protection claim under 42 U.S.C. § 1983 against Colonel Miller in his
official capacity and against Doylestown Borough; and Count IV asserted a claim
under the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. §§ 951, et seq.
(“PHRA”), against Colonel Miller in his official capacity.
Cross motions for summary judgment followed, and the District Court
granted both Defendants’ motions and denied Lekich’s motion on all Counts.
Lekich now appeals. The District Court had jurisdiction pursuant to 28 U.S.C. §
1331, and we have jurisdiction under § 1291.
Lekich’s brief on appeal is silent as to his § 1983 claim, and as to all claims
against Doylestown Borough. Thus, we consider only the ADA, RA, and PHRA
claims, and then only as to Defendant Miller.2

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II.
We “exercise plenary review over the District Court’s grant of summary
judgment and apply the same standard that the District Court should have
applied.” Shuman ex rel. Shertzer v. Penn Manor Sch. Dist., 422 F.3d 141, 146
(3d Cir. 2005) (quotation omitted). Summary judgment is appropriate “if the
pleadings, the discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The facts must be viewed
in the light most favorable to the non-moving party and all reasonable inferences
from the evidence must be drawn in his favor. Conopco, Inc. v. United States, 572
F.3d 162, 165 (3d Cir. 2009).
III.
Defendant Miller (now Defendant Pawlowski) is sued only in his official
capacity as Chairman of MPOETC. “Official-capacity suits are an alternative way
to plead actions against entities for which an officer is an agent.” Koslow v.
Commonwealth of Pa., 302 F.3d 161, 178 (3d Cir. 2002). Thus, we will refer to
the Chairman of MPOETC simply as “MPOETC.”
The ADA prohibits any “covered entity” from discriminating against
individuals on the basis of a disability in making employment decisions. 42

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Because the acts Lekich complains of took place prior to January 1, 2009, MPOETC3
argues that the Americans With Disabilities Act Amendments Act of 2008 (“ADAAA”) is not
applicable. Lekich neither cites the amended law in his initial Brief nor has filed a Reply Brief
arguing that the ADAAA does apply, despite its effect on the “disability” and “regarded as”
provisions of the ADA. See Hohider v. United Parcel Serv., Inc., 574 F.3d 169, 188 n.17 (3d
Cir. 2009). Though we have not decided whether the ADAAA is retroactive, id., our disposition
of this case would not be affected by the answer to this question.
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U.S.C. §§ 12112(a). “The term ‘covered entity’ means an employer, employment3
agency, labor organization, or joint labor-management committee.” Id. §
12111(2). MPOETC is not any of these things in this context. It is merely a
governmental body that certifies that an applicant has or has not met certain
preordained guidelines when a police department—an employer—directs it to
process an application. 37 Pa. Code § 203.15(c); see also 53 Pa. Cons. Stat. §
2164. Thus, MPOETC did not violate the non-discrimination in employment
provisions of the ADA because it is not subject to them.
In addition, and only assuming MPOETC is covered by the non-
discrimination in employment provisions of the ADA, we conclude that Lekich’s
claims lack merit. A prima facie case of discrimination requires, inter alia, that an
adverse employment action be taken against the complainant. Shaner v. Synthes,
204 F.3d 494, 500 (3d Cir. 2000). None was taken here by MPOETC because
Lekich’s offer of employment was withdrawn. Thus, MPOETC had nothing on
which to act. We agree with the District Court that Lekich’s ADA discrimination
claim fails “because MPOETC was never in a position to make a certification

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Lekich testified in his deposition that he understood he needed a job offer for MPOETC4
to certify him. Thus, he would have understood that its refusal to certify him was connected to
his lack of an offer of employment.
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decision regarding [him].”4
As the District Court recognized, Lekich’s retaliation claim “simply
reframe[s] the allegations underlying his claims of unlawful discrimination.”
Assuming Lekich can establish a prima facie case of retaliation in violation of the
ADA by MPOETC’s refusal to provide him with a reasonable accommodation
after he requested it, MPOETC bears the burden of articulating a legitimate, non-
discriminatory reason for its action. Shaner, 204 F.3d at 500. MPOETC argues
that its reason for refusing to waive the vision requirement or accept the second
opinion on Lekich’s vision—what Lekich argues would be reasonable
accommodations—was that it can only act on an application packet sent to it by a
police department that has extended an offer of employment. 37 Pa. Code §
203.15(c). Without this, it had nothing to act on, whether granting or denying the
request for an accommodation. Lekich has failed to demonstrate that this reason is
pretext, and his claim thus fails.
This reasoning yields the same result for Lekich’s RA and PHRA claims.
29 U.S.C. § 794(d) (declaring that the same standards apply to an RA claim as an
ADA claim); Eshelman v. Agere Sys., Inc., 554 F.3d 426, 433 n.3 (3d Cir. 2009)
(noting that the same analysis controls an ADA claim as a PHRA claim)

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(quotation omitted).
IV.
We conclude that Lekich has failed to point to a genuine issue of material
fact as to whether MPOETC violated the ADA, RA, or PHRA. Thus, we will
affirm the judgment of the District Court.

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