                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               ______________

                                     No. 13-3662
                                   ______________

               BEVERLY LAMBERSON, Administratrix of the Estate of
                    Melinda Lamberson Reynolds, Deceased,
                                                       Appellant

                                           v.

COMMONWEALTH OF PENNSYLVANIA; PENNSYLVANIA DEPARTMENT OF
STATE; PENNSYLVANIA BUREAU OF PROFESSIONAL AND OCCUPATIONAL
    AFFAIRS; PENNSYLVANIA DIVISION OF PROFESSIONAL HEALTH
 MONORITING PROGRAMS; PENNSYLVANIA STATE BOARD OF NURSING;
 BASIL L. MERENDA; LINDA TANZINI AMBROSO; K. STEPHEN ANDERSON;
CHRISTOPHER BARTLETT; RAFAELA COLON; KATHLEEN M. DWYER; JUDY
   A. HALE; SUZANNE M. HENDRICKS; JOSEPH J. NAPOLITANO; ANN L.
   O'SULLIVAN; JANET H. SHIELDS; JOANNE L. SORENSEN; PAULET E.
                          WASHINGTON
                          ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                            (D.C. No. 3-09-cv-01492)
                     District Judge: Hon. James M. Munley
                                ______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   March 27, 2014
                                  ______________

Before: FUENTES and SHWARTZ, Circuit Judges, and ROSENTHAL, District Judge.*

      *
         The Honorable Lee H. Rosenthal, United States District Judge for the Southern
District of Texas, sitting by designation.
                                           1
                                 (Filed: March 28, 2014)

                                    ______________

                                       OPINION
                                    ______________

SHWARTZ, Circuit Judge.

      Plaintiff Beverly Lamberson, as administratrix of the estate of Melinda Lamberson

Reynolds,1 appeals the denial of her motion for partial summary judgment and the grant

of summary judgment in favor of Defendants Commonwealth of Pennsylvania,

Pennsylvania Department of State (“DoS”), Pennsylvania Bureau of Professional and

Occupational Affairs (“BPOA”), Pennsylvania Division of Professional Health

Monitoring Programs (“PHMP”), Pennsylvania State Board of Nursing (“BoN”), and

various state officials.2 Plaintiff argues that Defendants suspended Reynolds’s nursing

license in violation of the Americans with Disabilities Act (“ADA”) and the

Rehabilitation Act (“RA”). Because there is no dispute that Reynolds was not in

compliance with any of the BoN directives, we will affirm.

                                            I.

      As we write principally for the benefit of the parties, we recite only the essential

facts and procedural history. Reynolds was a licensed practical nurse and registered

      1
       Reynolds initiated this action, but passed away during its pendency. Beverly
Lamberson was subsequently substituted as Plaintiff.
     2
       The state officials include the commissioner of the BPOA and members of the
BoN.
                                             2
nurse in Pennsylvania for over fifteen years. Reynolds suffered from substance abuse

problems, particularly with opioid drugs, and starting in 1997, she began receiving

methadone maintenance treatment for her opioid addiction.3

       In February 2005, DoS, which administers professional licensing in Pennsylvania,4

received a complaint from Reynolds’s then employer that Reynolds was acting “erratic”

at work, her charting was “illegible, incorrect or missing all together,” and she tested

positive for benzodiazepines. App. 817. DoS forwarded the complaint to PHMP, which

assists licensed professionals who suffer from impairments, such as chemical

dependency, to obtain treatment and monitoring to ensure that they can safely practice

their licensed professions.

       On March 1, 2005, Pearl Harris, a case manager at PHMP, sent Reynolds a letter

informing her that she could enroll in PHMP’s Voluntary Recovery Program (“VRP”)

and receive treatment without the need for action by the BoN. Reynolds expressed

interest in enrolling in the program and took the first step by undergoing an assessment at

A Better Today, a PHMP-approved alcohol and drug treatment facility, on June 14, 2005.

A Better Today deemed outpatient treatment appropriate. From June 14, 2005 to

September 1, 2005, Reynolds, however, attended only six of sixteen scheduled treatment


       3
          Methadone is a legal synthetic opioid drug that is used to treat opioid dependence
by controlling withdrawal symptoms and helping opioid-dependent patients refrain from
drug use.
        4
          DoS consists of a number of agencies, including the BPOA, PHMP, and BoN,
that regulate licensed professionals.
                                              3
sessions. Reynolds ultimately failed to meet her treatment attendance requirements, and,

in November 2005, A Better Today informed PHMP that she had been discharged due to

this non-compliance.

       Harris closed Reynolds’s VRP file and forwarded it to the BPOA for review and

the initiation of formal disciplinary proceedings. The BoN ordered that Reynolds be

evaluated by a nationally respected addiction specialist who ultimately issued an August

30, 2006 report concluding that Reynolds “is able to practice nursing with the requisite

skill and safety provided she is monitored for a time to be determined by the Board.”

App. 380 (emphasis in original). On October 5, 2006, the BPOA filed an order directing

Reynolds to show cause why her license should not be suspended, revoked, or otherwise

restricted in light of the fact that she was not being monitored as the addiction specialist

deemed necessary.

       Instead of answering the order to show cause, Reynolds entered into a Consent

Agreement, approved by the BoN on January 7, 2007, under which Reynolds was

permitted to continue to practice on a probationary status provided that she: (1) forward

to PHMP a copy of an initial evaluation and subsequent treatment reports by a PHMP-

approved provider; (2) obtain written verification of support-group attendance; (3) submit

to random drug tests as directed by PHMP; and (4) pay all costs incurred in complying

with the Consent Agreement.

       Harris referred Reynolds back to A Better Today, and she was evaluated on

                                              4
January 15, 2007. A Better Today informed Harris that Reynolds was opioid and

benzodiazepine dependent, and that, although Reynolds was directed and agreed to enter

into an inpatient methadone detox program before being admitted to outpatient therapy,5

Reynolds “failed to follow through and made repeated calls to A Better Today in which

she sounded impaired,” App. 412, and A Better Today “discontinued the unsuccessful

clinical process” on January 31, 2007. Id.

       On March 5, 2007, Harris sent Reynolds a letter notifying Reynolds of her non-

compliance with the Consent Agreement due to her failure to: (1) provide releases for

information and other materials related to her evaluation and treatment; (2) set up and

provide random drug screens; (3) provide support group verification sheets since entering

the program in January 2007; and (4) ensure that written reports were sent to PHMP by

her employer and treatment providers. On April 24, 2007, Harris reported these

violations to the DoS Prosecution Division and informed Reynolds of that report. The

DoS Prosecution Division thereafter submitted a petition to the Probable Cause Screening

Committee of the BoN, which issued a preliminary order suspending Reynolds’s license.

       Reynolds filed an answer, and on July 11, 2007, a BoN hearing examiner held a

hearing. The parties stipulated that Reynolds violated the Consent Agreement, and

Reynolds used the hearing as an opportunity to present mitigating evidence in an attempt

       5
         The particular rapid detoxification program A Better Today recommended was
viewed, even by Defendants’ expert, as inappropriate for a patient on methadone
maintenance treatment, as it would be “extremely uncomfortable for the patient and could
result in significant medical complications.” App. 168.
                                             5
to preserve her license, testifying that her husband had recently passed away and that,

because of financial difficulty, she was unable to pay the costs of the drug screening.

Reynolds further stated that she disagreed with the conclusion that she was required to

wean off methadone in order to safely practice and that such a detox would be very

difficult for her, but that she would be committed to being detoxed from methadone if she

had no other choice in order to keep her license.6

       On August 10, 2007, the BoN hearing examiner issued a decision and proposed

order, finding that Reynolds violated the Consent Agreement because she had (1) failed

to enroll in the random drug-screening program; (2) failed to submit monthly verification

that she was attending support-group meetings; and (3) failed to comply with the

treatment recommendation that she enter inpatient treatment in order to be weaned from

methadone. The examiner ordered that Reynolds’s license be suspended for three years,

with the opportunity to stay the suspension and reinstate her license once Reynolds


       6
           At that time, PHMP had a policy stating that

       any licensee assessed by a PHMP-approved provider . . . in need of ongoing
       methadone maintenance will be declared ineligible to participate in the
       PHMP. Such licensees will be referred to the Board, with the
       recommendation that the Board consider any individual requiring
       maintenance on methadone as unfit to practice. . . . Once effectively
       withdrawn from methadone dependence, the licensee may not reenter a
       program of ongoing methadone maintenance unless referred by the PHMP-
       approved provider.

App. 381 (emphasis in original). As discussed infra, this policy was changed less than
one year later.
                                              6
“provides the Board with an evaluation from a PHMP approved treatment provider that

she is safe to practice nursing.” App. 458.

          Neither party filed exceptions to the hearing examiner’s proposed order, and the

BoN adopted it as its final order on September 18, 2007. No appeal was taken from the

order. Harris reopened Reynolds’s file following the final order, and in November 2007,

Harris directed Reynolds once more to seek an evaluation and treatment from A Better

Today. There is no evidence that Reynolds contacted A Better Today or had any further

interaction with this provider.

          In February 2008, Dr. William Santoro, an addiction medicine specialist who

treated Reynolds at New Directions Treatment Services, her methadone maintenance

provider, contacted A Better Today to discuss Reynolds’s treatment and express concern

about the recommendation that Reynolds be rapidly withdrawn from methadone. After

speaking with A Better Today, Dr. Santoro wrote a letter to Harris expressing his concern

that A Better Today was biased against treating addictions with medication such as

methadone. Dr. Santoro requested that Reynolds be sent to another program that would

consider all scientifically proven methods of treatment. Harris never responded to that

letter.

          On March 5, 2008, Harris sent Reynolds a letter explaining that, in response to a

message from Reynolds, she was trying to contact her, but Reynolds’s phone had a block

in place. She therefore requested that Reynolds call PHMP. Having received no call, and

                                               7
hence no opportunity to discuss Dr. Santoro’s letter with her, and in light of Reynolds’s

apparent noncompliance with the treatment program, on March 13, 2008, Harris sent a

letter to Reynolds informing her that her PHMP file had been closed, and that in order to

reopen the file, A Better Today had to send PHMP a statement “indicating that you have

fully and completely complied and cooperated with recommendations to enter inpatient

treatment to be weaned from methadone.” App. 416.

          In April 2008, Glen Cooper, the executive director of New Directions Treatment

Services, contacted Defendants on behalf of Reynolds to raise concerns regarding

PHMP’s policy that requires a nurse to be abstinent from methadone before the nurse will

be permitted to return to the practice of nursing. Defendants met with Cooper on May 5,

2008, to discuss changing their methadone policy, and in June 2008, PHMP revised the

policy to remove the blanket prohibition on methadone use by licensees and provide an

individual determination of fitness to practice for those on methadone maintenance

treatment. Defendants advised Cooper and Dr. Santoro of this change. There is no

evidence that Reynolds contacted PHMP after this date to take advantage of the new

policy.

          Reynolds filed a Complaint against Defendants on August 4, 2009, amending it in

November 2009. The Amended Complaint seeks a declaration that Defendants’ policy of

excluding nurses who are in a methadone maintenance program from licensing violates

Title II of the ADA, 42 U.S.C. § 12132, and Section 504 of the RA, 29 U.S.C. § 794, as

                                              8
well as injunctive relief and damages.

       Defendants filed a motion to dismiss, which was granted in part with respect to the

claims for damages against the individual defendants,7 but was denied as to Defendants’

request that the District Court abstain from deciding the case on Younger8 abstention

grounds. The District Court also denied Defendants’ motion for reconsideration or to

certify for interlocutory appeal.

       After discovery, Plaintiff and Defendants cross-moved for summary judgment:

Plaintiff for partial summary judgment that the methadone policy was illegal under the

ADA and RA, and Defendants for summary judgment in their favor on all claims. The

District Court granted Defendants’ motion for summary judgment and denied Plaintiff’s

motion. This appeal followed.

                                           II.

       The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over a District

Court’s order granting summary judgment.9 Jacobs Constructors, Inc. v. NPS Energy


       7
         On appeal, Plaintiff does not challenge the ruling relating to the liability of the
individual defendants for damages. Moreover, Reynolds’s death rendered her request for
injunctive relief moot. See James v. Richman, 547 F.3d 214, 217 (3d Cir. 2008).
       8
         Younger v. Harris, 401 U.S. 37 (1971).
       9
         We have jurisdiction to review the District Court’s summary judgment ruling
only. We do not address Defendants’ argument that the District Court erred by not
abstaining from hearing this case under the Younger abstention doctrine, as “[i]t is
axiomatic that any party contesting an unfavorable order or judgment below must file an
appeal,” EF Operating Corp. v. American Buildings, 993 F.2d 1046, 1048 (3d Cir. 1993),
                                             9
Servs., Inc., 264 F.3d 365, 369 (3d Cir. 2001). Summary judgment is appropriate “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).

       In reaching this decision, the Court must determine “whether the pleadings,

depositions, answers to interrogatories, admissions on file, and affidavits show that there

is no genuine issue of material fact and whether the moving party is therefore entitled to

judgment as a matter of law.” Macfarlan v. Ivy Hill SNF, L.L.C., 675 F.3d 266, 271 (3d

Cir. 2012) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). A disputed issue

is “genuine” only “if there is a sufficient evidentiary basis on which a reasonable jury

could find for the non-moving party.” Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d

Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A factual

dispute is “material” only if it might affect the outcome of the suit under governing law.

Doe v. Luzerne Cnty., 660 F.3d 169, 175 (3d Cir. 2011) (citing Gray v. York

Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992)). The Court’s task is not to

resolve disputed issues of fact, but to determine whether there exist any factual issues to

be tried. Anderson, 477 U.S. at 247-49. “In making this determination, we must




and Defendants here failed to file a cross-appeal in order to challenge the District Court’s
denial of its motion to dismiss. A grant of summary judgment and a dismissal due to
abstention are “wholly different forms of relief”—indeed, the Defendants’ dismissal
argument “seeks to vacate the summary judgment”—and Defendants are required to file a
cross-appeal in order to seek such relief. Id. at 1049.
                                             10
consider the evidence in the record in the light most favorable to the nonmoving party.”

Jacobs Constructors, Inc., 264 F.3d at 369 (citing Anderson, 477 U.S. at 248).

                                            III.

       Because essentially the same standards govern both the ADA and RA claims, the

Court may simultaneously address both claims. McDonald v. Pennsylvania, 62 F.3d 92,

95 (3d Cir. 1995) (“Whether suit is filed under the [RA] or under the [ADA], the

substantive standards for determining liability are the same.” (citation omitted)). To

prevail on a violation of either of those statutes,10 Plaintiff must demonstrate that

Reynolds: (1) had a disability as defined under the statute;11 (2) was otherwise qualified

to hold a nursing license; and (3) by reason of such disability, was excluded from

retaining her nursing license.12 See Chambers ex rel. Chambers v. Sch. Dist. of Phila.

Bd. of Educ., 587 F.3d 176, 189 (3d Cir. 2009).



       10
          Title II of the ADA provides that “no qualified individual with a disability shall,
by reason of such disability, be excluded from participation in or be denied the benefits of
the services, programs, or activities of a public entity, or be subjected to discrimination
by any such entity.” 42 U.S.C. § 12132.
       Section 504 of the RA provides that “[n]o otherwise qualified individual with a
disability in the United States . . . shall, solely by reason of her or his disability, be
excluded from the participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial assistance . . . .”
29 U.S.C. § 794(a).
       11
          Drug addiction is included within the meaning of disability under both the ADA
and the RA where the impairment is not due to the “current illegal use of drugs.” 28
C.F.R. § 35.104(5)(iii).
       12
          Title II of the ADA only applies to discrimination by a “public entity,” which is
defined as “any department, agency, special purpose district, or other instrumentality of
                                              11
       As we explained in C.G. v. Pennsylvania Department of Education, 734 F.3d 229,

235 (3d Cir. 2013), one of the only differences between claims under the ADA and the

RA is their standards for causation. See 42 U.S.C. § 12132 (“by reason of such

disability”); 29 U.S.C. § 794(a) (“solely by reason of her or his disability”). “The RA

allows a plaintiff to recover if he or she were deprived of an opportunity to participate in

a program solely on the basis of disability, while the ADA covers discrimination on the

basis of disability, even if there is another cause as well.” C.G., 734 F.3d at 235-36.

Thus, while a disability must be the “sole cause” of the alleged discrimination under the

RA, a plaintiff may succeed under the ADA “so long as disability ‘. . . had a

determinative effect on the outcome,’” and thus was the “but for” cause of the adverse

action. Id. at 236 n.11 (quoting New Directions Treatment Servs. v. City of Reading, 490

F.3d 293, 300 n.4 (3d Cir. 2007)).

       Here, the District Court correctly applied the “but for” causation standard and

found that while Reynolds’s failure to be weaned off methadone was one of the reasons

she was found not to be in compliance with her Consent Agreement, there were two other

violations of the Consent Agreement—failure to enroll in the random drug-screening

program and failure to submit monthly verification that she was attending support-group



a State . . . .” 42 U.S.C. § 12131(1)(B). No party disputes that Defendants are all “public
entit[ies].”
        The RA requires the additional showing that the program receives federal financial
assistance. 29 U.S.C. § 794(a). No party disputes that DoS receives federal financial
assistance and the other Defendants are part of DoS.
                                             12
meetings—which would in and of themselves be sufficient for a suspension. Reynolds

stipulated to these violations in her proceeding before the BoN, and the hearing examiner

identified them as the reason for suspension. Thus, PHMP’s methadone policy was not a

“but for” factor in the decision to suspend Reynolds’s license or why it was not

reinstated.

       Plaintiff argues that the District Court wrongly narrowed its review to the BoN

order suspending Reynolds’s license and ignored the fact that PHMP’s methadone policy

prohibited her from being able to get that license back because the BoN required

Reynolds to be monitored by PHMP and provide an evaluation from a PHMP-approved

treatment provider in order to stay the suspension. Even if the District Court did not

consider that argument, there is no evidence that Reynolds did anything to comply with

the BoN order after it became final in September 2007. There is no record of Reynolds

contacting A Better Today and attempting to fulfill even part of their program. Likewise,

there is no evidence showing Reynolds attempted to re-open her file with PHMP after the

June 2008 policy change, despite the fact that her New Directions care providers were

made aware of it. Plaintiff is therefore unable to show that it was PHMP’s methadone




                                            13
policy,13 and not Reynolds’s own inaction, that prevented her from regaining her

license.14

                                         IV.

       For the foregoing reasons, we will affirm the grant of summary judgment in favor

of Defendants and the denial of Plaintiff’s motion for partial summary judgment.




       13
          The District Court did not make any ruling on whether PHMP’s methadone
policy violated the ADA and/or the RA, and we likewise do not reach that issue.
       14
          For the same reasons, the methadone detoxification requirement was not the sole
reason her license was suspended.

                                           14
