                                                             NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                    No. 12-4157
                                   _____________

                              RICHARD MCDONALD,
                                        Appellant

                                          v.

      PENNSYLVANIA STATE POLICE; COLONEL FRANK PAWLOWSKI,
         Commissioner of Pennsylvania State Police in his official capacity;
            MAJOR JOHN GALLAHER, in his individual capacity
                               ______________

            APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                           (D.C. Civil No. 2-09-cv-00442)
                 District Judge: Honorable Terrence F. McVerry
                                  ____________

                     Submitted Under Third Circuit LAR 34.1(a)
                                   July 12, 2013
                                  ____________

         Before: GREENAWAY, JR., SHWARTZ and BARRY, Circuit Judges

                           (Opinion Filed: August 9, 2013)
                                   ____________

                                     OPINION
                                   ____________


BARRY, Circuit Judge

      Richard McDonald appeals the October 31, 2012 Order of the District Court

granting summary judgment in favor of the Pennsylvania State Police and Colonel Frank
Pawlowski on McDonald’s claims of disability discrimination under the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.1 and the Rehabilitation Act, 29

U.S.C. § 794. What is before us emanates from a December 2002 work-related

automobile accident in which McDonald was injured. The parties and their counsel are

familiar with the extensive factual and procedural history that has brought us to this point

these many years later, a history which, it is undisputed, has been accurately set forth by

the District Court in the Opinion we now review, and need not be reprised here. Suffice

it to say that, on remand from an earlier appeal to this Court, the District Court held, inter

alia, that no reasonable jury could conclude that McDonald has an actual disability, and

that there was no evidence that MPOETC regarded him as disabled.

       McDonald does not argue before us that he has an actual disability; indeed, he

concedes he does not. Rather, the dispute before us centers on whether the District Court

erred in concluding, on summary judgment, that the MPOETC did not regard him as

having a disability when it denied the certification he was seeking, i.e. that it did not

perceive him as substantially limited in his ability to perform a major life activity.

       We exercise plenary review over a district court’s grant of summary judgment,

viewing all evidence in favor of the non-moving party and drawing all reasonable

1
  The ADA, and its definition of disability, was amended in 2008, with the amendments
effective on January 1, 2009. ADA Amendments Act of 2008, Pub. L. No. 110-325, 122
Stat. 3553 (2008). Because Congress did not provide for retroactive application of the
amendments and because the alleged discriminatory conduct here occurred prior to
January 1, 2009, we analyze McDonald’s ADA claim under the pre-amendment version
of the statute. The parties have not suggested that we should do otherwise or, that with
one exception not relevant here, the substantive standards for liability under the ADA and
the Rehabilitation Act are not the same.
                                             2
inferences in his or her favor. See Powell v. Symons, 680 F.3d 301, 306 (3d Cir. 2012);

Albright v. Virtue, 273 F.3d 564, 570 & n.6 (3d Cir. 2001); Fed. R. Civ. P. 56(a).

Summary judgment is proper “if the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a).

       We have carefully considered the record in this case, the controlling law, and the

arguments of counsel. We conclude, following our review, that we will affirm the order

of the District Court. Although we will affirm the order, we cannot help but observe that

certain issues addressed by the Court are not free from doubt—the extent of the deference

accorded the MPOETC and the Court’s commentary on whether a “regarded as” claim is

viable under Title II, e.g., come to mind. At the end of the day, however, we are satisfied

that there was no evidence that MPOETC regarded McDonald as disabled because of any

physical or cognitive limitation when it denied his application for certification as a

municipal police officer as opposed to simply regarding him as unfit for certification

because of the potential side effects from his use of Avinza, a medically prescribed

narcotic pain reliever. Given this conclusion, we need not reach the several other issues

and sub-issues raised on appeal.




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