                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-4-2004

Jordan v. Stanziola
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4536




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"Jordan v. Stanziola" (2004). 2004 Decisions. Paper 729.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/729


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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 02-4536




                    DOUGLAS K. JORDAN; LUCINDA JORDAN,

                                       Appellants

                                            v.

ROBERT J. STANZIOLA, EDWARD W. DRUM AND EARL T. MILLER, individually
  and as Supervisors for the Township of Sugarloaf, Pennsylvania; TOWNSHIP OF
                                  SUGARLOAF


 ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE M IDDLE
                   DISTRICT OF PENNSYLVANIA

                               (Dist.Court No. 00-cv-1915)
                District Court Judge: The Honorable A. Richard Caputo


                                Argued December 5, 2003

           Before: SLOVITER, ALITO, and OBERDORFER 1 , Circuit Judges.


                              (Opinion Filed: May 4, 2004)




   1
    Honorable Louis F. Oberdorfer, District Judge, United States District Court for the
District of Columbia, sitting by designation.
                                                            Keith E. Kendall, Esq. (Argued)
                                                           2215 Forest Hills Drive, Suite 37
                                                              Harrisburg, PA 1711201099
                                                                     Counsel for Appellants




                                                     Zygmunt R. Bialkowski, Esq. (Argued)
                                                                 The Oppenheim Building
                                                        409 Lackawanna Avenue, Suite 3C
                                                                     Scranton, PA 18503
                                                                    Counsel for Appellees




                                OPINION OF THE COURT


OBERDORFER, Senior District Judge:

              Douglas K. Jordan and Lucinda Jordan appeal from the district court’s grant

of summary judgment on their claims for violation of the Americans with Disabilities Act

and for common law abuse of process. For the reasons discussed below, we affirm.

                                    I. BACKGROUND

              Because we write only for the parties, we will not fully restate the facts of

the dispute, which are spelled out in some detail in the district court’s twenty-three page

decision. See Jordan v. Stanziola, 3:CV–00-1915 (Caputo, J.) (Memorandum filed May

15, 2002) (“Memorandum”). Douglas K. Jordan (Jordan) was a Sugarloaf Township

Police Officer from March 15, 1982 until May 5, 2000. Lucinda Jordan is his wife

(collectively, “the Jordans”). Between June 1998 and December 1998, Jordan was


                                              2
disciplined repeatedly by the Township for allegedly, among other things: making baseless

accusations about a fellow officer; quarreling with a fellow officer; performing paid

services for a local ambulance association while on sick leave from the Township; telling a

citizen that the citizen’s arrest was unconstitutional and advising the citizen to sue the

Township; using the women’s restroom in the Township police department building; and

improperly aiding a civilian’s attempt to repossess a backhoe.

              On December 25, 1998, Jordan injured his back. He did not return to work

until May 21, 1999. When he returned to work, he was assigned to the day shift for office

duty and was removed from patrol duty. He complained that the extended sitting involved

in office duty exacerbated his back problem and submitted notes from his doctors to the

Police Department to that effect. The Police Department did not change Jordan’s

restriction from patrol duty, but did permit him to get up and walk around if his back was

bothering him.

              By letter dated January 19, 2000, the Township Board of Supervisors

informed Jordan that the Board had determined that it was necessary for him to undergo a

psychological evaluation to confirm his fitness for duty. Subsequently, a psychologist

examined him and found in a resulting report that he did not appear to have any

psychological factors that would interfere with his performing his duties as a police officer

in a competent fashion. He continued working at the Police Department.

              In April 2000, Jordan requested, and was denied, permission to leave work



                                               3
to attend physical therapy sessions for his back injury. He stated in writing to the Police

Department that he would file for partial disability if he was not permitted to attend the

therapy sessions while working full-time. On April 27, 2000, he called an ambulance, left

work, and did not report his absence to the Department. On the following day, April 28,

2000, he did not report to work or call in to work. On April 29 th and 30th, 2000, he called

in sick.

              Jordan returned to work on May 3, 2000. That morning, he told the Chief of

Police in a note that his doctor would place him on disability if he were not returned to full

duty within two weeks. However, the doctor’s note attached to Jordan’s note stated only

that he was authorized to return to work.

              Subsequently, the Chief of Police submitted a report to the Sugarloaf Board

of Supervisors. On May 5, 2000, the Board met and voted to terminate Jordan. By letter

dated that day signed by defendant Robert M. Stanziola, Chairman of the Board of

Supervisors of Sugarloaf Township, the Township advised Jordan that it had “considered

your recent actions, the statements you made at the . . . hearing, and the previous

disciplinary problems which you have had,” and that, “[b]ased on all of these factors, the

supervisors . . . have voted to terminate your employment.” App. at 69. “As of this date,”

the letter informed Jordan, “your employment by the Township of Sugarloaf as a police

officer is terminated.” Id.

              Subsequently, Jordan and his wife filed suit in federal district court against



                                              4
three of the township supervisors and against the Township of Sugarloaf itself. The

district court granted summary judgment for the defendants on Jordan’s causes of action

for alleged violations of (1) his civil rights under 42 U.S.C. § 1985; (2) the Americans

with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., (3) his substantive and procedural

due process rights under 42 U.S.C. § 1983 and the Fourteenth Amendment of the United

States Constitution; (4) his common law rights against abuse of process; and (5) his

common law rights against wrongful termination. See Memorandum. Subsequently, the

Jordans stipulated to dismissal of the remaining two counts, one for alleged violation of

his First Amendment freedom of association rights, the other for Lucinda Jordan’s loss of

consortium. See Jordan v. Stanziola, 3:CV--00--1915 (Caputo, J.) (Order filed November

26, 2002). The Jordans now appeal from the adverse grant of summary judgment.

                                     II. DISCUSSION

              On appeal, the Jordans assert that the district court erred in three respects:

(1) by granting summary judgment on the various claims prior to the completion of

discovery, before they were “ripe”; (2) on the merits by granting summary judgment on the

ADA claim; (3) on the merits by granting summary judgment on the claim for abuse of

process.2 As to the second and third of these arguments -- regarding the merits of the


   2
     The Jordans abandoned the remaining four of their claims on appeal. First, although
they did appeal the grant of summary judgment on the procedural due process claim, their
counsel explicitly abandoned that claim at oral argument. Second, and similarly, the
Jordans’ briefs abandoned the claim for wrongful termination, stating that they


                                              5
ADA and abuse of process claims, we affirm. Having performed de novo review, see

Waldron v. SL Indus., Inc., 56 F.3d 491, 496 (3d Cir. 1995), we rest on the district court’s

cogent analysis explaining the basis for granting summary judgment against the Jordans.

See Memorandum at 14-19 (ADA analysis) and 19-22 (abuse of process). A word is in

order, though, concerning the district court’s handling of the question of ripeness, which

the Jordans raised to the district court but that court did not address in its Memorandum.

              The Jordans argue that the district court erred in granting summary judgment

with regard to the issues on which summary judgment was granted because summary

judgment was awarded at a “premature” stage, due to their “inability to complete

discovery.” Aplt’s Br. at 12. We review for abuse of a “measure of discretion” the district

court’s decision as to “whether the summary judgment motion [wa]s ripe for resolution.”

Lorenzo v. Griffith, 12 F.3d 23, 27 n.5 (3d Cir. 2003).

              The district court did not abuse its discretion. Jordan filed the operative

Complaint in this dispute on October 31, 2000, over eighteen months before the district

court’s decision granting summary judgment. Before any substantial discovery could have




“concede[] the Township’s position on this issue, and withdraw[] the issue from
consideration by this Court.” Reply Br. at 9. Third, their primary brief states that “[t]he
dismissal of Count VI . . . (loss of consortium) is not independently argued on appeal.”
Aplt’s Br. at 2. Finally, they did not appeal whatsoever the grant of summary judgment
on the §1985 claim or on the substantive due process claim. We thus address only the
three “live” issues on appeal.


                                              6
taken place,3 the case was diverted to mediation on May 10, 2001. The parties declared

the mediation an impasse on June 29, 2001. The Jordans identify no reason why, starting

at that point, they could not have conducted discovery up until the then-operative deadline

of November 26, 2001. On September 26, 2001, the district court granted their motion to

extend the discovery deadline by two months. Subsequently, on November 30, 2001, the

Jordans entered into a stipulation with the defendants to the effect that the defendants

would file a motion for summary judgment and the parties agreed to stay discovery

pending the outcome of that dispositive motion. “When a nonmoving party urges the

district court to forestall consideration of a summary judgment motion in order to facilitate

discovery . . . . [u]nder accepted practice, when additional discovery is needed, a Rule

56(f) motion should be filed, explaining why opposing affidavits are unavailable.”

Lorenzo, 12 F.3d at 28.4 The Jordans did not file any opposing affidavits explaining why

the five-plus months that had elapsed did not provide sufficient time for discovery, nor did



   3
    Jordan’s Complaint was served on the defendants on or about November 16, 2001.
Because service was by mail and waiver, the defendants had 60 days, i.e. until January 15,
2001, to respond. See Fed. R. Civ. P. 4(d). On January 9, 2001, the defendants requested
and received an additional approximately 60 days to respond to the Complaint. The
defendants filed a motion to dismiss on March 12, 2001, which the defendants withdrew
April 6, 2001. Less than five weeks later -- May 10, 2001 -- the case was assigned to
mediation.
   4
    The Jordans’ reliance in this regard on Swierkiewicz v. Sorema, N.A., 534 U.S. 506
(2002), is misplaced. That case addressed not the standard for evaluating a notion for
summary judgment but, rather, the proper resolution of a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6) challenging the sufficiency of the pleadings.


                                              7
they file any Rule 56(f) motion or place into the record any explanation of why such

affidavits were unavailable. Moreover, they did not file a motion with the district court to

forestall consideration of the motion for summary judgment or any substantively

equivalent motion. Given all this, particularly that the Jordans had at least five months to

conduct discovery and then agreed to stay discovery pending the resolution of the

summary judgment briefing, we cannot now say that the district court abused its discretion

in determining that the summary judgment motion was ripe for resolution.

                     Affirmed.
