Pennsylvania Ex-Chief Appeals Suit Against State Police

A former police chief is appealing a federal judge’s decision dismissing his disability discrimination suit against a Pennsylvania State Police agency that certifies officers, claiming the agency wrongly refused to certify him because he uses a painkiller to deal with a work-related neck injury.

Richard McDonald’s attorneys, including the Disability Rights Network of PA, disagree with the judge’s ruling Friday that the Municipal Police Officers Education and Training Commission — which certifies police officers and private law enforcement agents who carry firearms — isn’t governed by the Americans With Disabilities Act because it’s not an employer, but merely a third-party agency that screens applicants using specific guidelines.

One of McDonald’s attorneys, Tim O’Brien, said the appeal is important because if the judge’s decision is allowed to stand, it means people denied police certification by MPOETC because of a perceived disability “would have no recourse.”

The attorneys on Monday filed notice that they’re appealing to the 3rd U.S. Circuit Court of Appeals to reverse U.S. District Judge Terrence McVerry’s Friday decision dismissing McDonald’s lawsuit against the state police commissioner and Major John Gallaher, who heads MPOETC.

State police spokesman Jack Lewis said the agency does not comment on litigation.

McDonald is in his 40s and, O’Brien said, once worked as a Pittsburgh police officer and homicide detective until he became a special agent for the state Attorney General in 2002. Soon after, he was in a work-related car accident and suffered neck and back injuries for which he takes Avinza, a powerful narcotic painkiller.

McDonald missed work for various periods due to his injuries until leaving the Attorney General’s office in 2006 and his police certification lapsed. In 2007, McDonald was hired as police chief in Ellwood City, a small municipality about 35 miles northwest of Pittsburgh, subject to becoming recertified by MPOETC.

According to his 2009 lawsuit, a doctor and psychologist both determined he could perform police duties while taking the painkiller, but another doctor who served as MPOETC’s “medical advisor” disagreed — and continued to disagree even after a second doctor selected by the screening agency also said McDonald could work as a police officer provided a physician monitored his use of the painkiller.

“Mr. McDonald is a litigant for whom the Court feels empathy. He has certainly presented substantial evidence of his fitness to serve as a police chief,” McVerry ruled. “On the other hand, McDonald is asking the Court (or a jury) to substitute its own view of his fitness for that of MPOETC, the Commission created by the Commonwealth of Pennsylvania to perform that role.”

McDonald is seeking damages, and a court order that he be certified as an officer. O’Brien said McDonald currently works as a private investigator for an insurance company for less money” than he made as chief. But McDonald cannot work in law enforcement nor can he carry a weapon, even as a private investigator, without the MPOETC certification, O’Brien said.

McDonald’s employment with Ellwood City isn’t at issue in the lawsuit, because the borough bought out his contract for $160,000 in salary and legal fees in late 2008 to settle a racial discrimination lawsuit McDonald filed after the mayor acknowledged using a racial slur around McDonald, who is black.