Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-7-1999

Leheny v. Cty of Pittsburgh
Precedential or Non-Precedential:

Docket 98-3356




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Filed July 7, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 98-3356, 98-3364, 98-3405

THOMAS E. LEHENY; JAMES R. RAMSEY; ARTHUR
MARUNICH, for themselves and others similarly situated

       Thomas E. Leheny,
       Appellant No. 98-3364

v.

CITY OF PITTSBURGH; POLICEMEN'S RELIEF AND
PENSION FUND OF THE CITY OF PITTSBURGH;
FRATERNAL ORDER OF POLICE, FORT PITT LODGE
NO. 1

       City of Pittsburgh,
       Appellant Nos. 98-3356/3405

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 94-cv-00866)
District Judge: Hon. Maurice B. Cohill, Jr.

Argued: May 4, 1999

Before: ALDISERT, WEIS and STAPLETON, Circuit Judges,

(Filed: July 7, 1999)
       Joseph S. Hornack (argued)
       Healey, Davidson & Hornack
       Fifth Floor
       Law & Finance Building
       Pittsburgh, PA 15219

        ATTORNEY FOR
        APPELLEES/CROSS-APPELLANTS

       Brian P. Gabriel (argued)
       Assistant City Solicitor
       City of Pittsburgh Department
        of Law
       Firm #046
       313 City-County Building
       414 Grant Street
       Pittsburgh, PA 15219

        ATTORNEY FOR
        APPELLANTS/CROSS-APPELLEES

OPINION OF THE COURT

ALDISERT, Circuit Judge.

These cross-appeals by the City of Pittsburgh and three
retired police officers (the "Retirees") require us to decide
whether a City policy that offsets pension benefits for
disabled retired police officers by worker's compensation
benefits violates equal protection and due process rights
and constitutes a violation of the Americans with
Disabilities Act, 42 U.S.C. S 12101 et seq. ("ADA"). The
district court dismissed the Retirees' ADA claim but
submitted the constitutional claims to a jury that awarded
compensatory damages.

In its appeal from the judgment on the jury verdict, the
City contends that the court erred in not granting judgment
as a matter of law on the equal protection and due process
claims. In their appeal, the Retirees contend that the court
erred in dismissing their ADA claim. We have jurisdiction
pursuant to 28 U.S.C. S 1291.

                               2
We hold that the district court correctly dismissed the
Retirees' ADA claim but erred when it failed to grant
judgment as a matter of law in the City's favor on the equal
protection and due process claims. Accordingly, we will
affirm in part and reverse in part.

I.

The Retirees are former police officers for the City of
Pittsburgh. Each suffered a work-related injury and
received his full rate of salary pursuant to the Heart and
Lung Act, 53 P.S. S 637, until approximately December 14,
1992.1 On December 14, 1992, Thomas E. Leheny and
James R. Ramsey signed documents acknowledging their
permanent disability, and therefore became ineligible for
Heart and Lung Act benefits but eligible to collect worker's
compensation and reduced pension benefits. These appeals
pertain to the amount of pension benefits for which the
Retirees became eligible.

Prior to 1992, police officers who were unable to return
to work due to injury remained on the City's active payroll
and received 100% of their salary pursuant to the Heart
and Lung Act. These payments placed a significant strain
on the City's fiscal integrity.

The City's financial concerns were addressed in March
1992, after an impasse had been reached in the collective
bargaining process with the Fraternal Order of Police
(F.O.P.), when an arbitration award was issued that
eventually became a part of a collective bargaining
agreement. Officers meeting age and service eligibility
requirements could choose to be placed on one of two lists
of officers who wished to retire prior to the end of 1995
under an "early retirement incentive plan." List A would
consist of all officers seeking immediate retirement. List B
would consist of all officers who wished to retire before
December 31, 1995, when eligibility for this early
_________________________________________________________________

1. The Retirees accepted Heart and Lung Act benefits in lieu of lesser
benefits provided pursuant to the Pennsylvania Worker's Compensation
Act, 77 P.S. S 1 et seq. The Heart and Lung Act permits police officers to
receive their full salary during a period of temporary disability.

                               3
retirement incentive would end. Officers on List B could be
retired by the City at any time after all officers on List A
had been retired, but were guaranteed retirement by
December 31, 1995.

Officers selecting to be placed on either list were required
to fill out a Retirement Incentive Window Irrevocable
Application Form prior to September 1, 1992. See App. at
115 (arbitration award provision), 121 (letter from Fraternal
Order of Police to officers describing procedure for early
retirement incentive). The Retirees chose to be placed on
List B.

Pursuant to the arbitration award, officers on either list
who were at least 50 years of age and had at least 25 years
of service were given the opportunity to receive an
enhanced retirement benefit equal to 75% of their average
monthly pay without service increments. App. at 115-116.
For disabled officers who were receiving worker's
compensation, the award provided that:

       An employee who is receiving worker's compensation
       benefits can receive up to 66 2/3 [%] of pay from
       worker's compensation and receive 50% of average
       monthly pay plus service increments under the Police
       Pension Plan without any offset. . . . However, an
       employee who is already eligible on retirement for
       combined benefits in excess of 75% of average monthly
       pay and who elects to retire pursuant to the retirement
       incentive shall not be entitled to any additional pension
       benefit from the retirement incentive provided for in
       this Award. In the event that such employee's worker's
       compensation benefits are reduced or eliminated after
       retirement, the employee shall be entitled to such
       pension enhancement as is necessary to maintain a
       benefit, including worker's compensation, if any, which
       is 75% of average monthly pay at retirement.2
_________________________________________________________________

2. This reduced pension was available to all permanently disabled
officers, regardless of age and service. See City's Br. at 18. Because the
reduced pension for disabled officers was not limited to those who met
the 50 years of age/25 years of service plateau, there may have been
officers who were eligible for reduced benefits because they 

. Officers who accepted this enhancement but
continued to receive worker's compensation were not
deemed "voluntary quits."

The Retirees were requested to sign supplemental
agreements acknowledging their permanent disability. By
signing these agreements, the Retirees agreed to the
termination of their benefits under the Heart and Lung Act,
which provided 100% salary payments. In place of these
benefits, the Retirees would be eligible to receive worker's
compensation benefits, which provide up to 66 2/3% of the
worker's salary. The City planned to submit these
agreements to an office in Harrisburg to terminate payment
of Heart and Lung Act benefits.

The City had retained Sedgwick James, an independent
agency retained by the City for disability claims
management service, to process these claims. Leheny and
Ramsey were shown a letter from Sedgwick James that
directed the F.O.P.'s attorney to contact certain officers and
have them sign supplemental agreements acknowledging
that they were permanently disabled. This letter stated that
"[if anyone decides not to sign the agreement, then I [Kelly
Ryan, a Sedgwick James employee] will have no recourse
but to file a Termination with the Heart and Lung Panel."
App. at 954.

Leheny and Ramsey signed the agreements. They testified
at trial that they interpreted the letter to mean that they
would lose all of their work-related and injury-related
benefit payments if they did not sign the supplemental
agreement. They contended that they were not informed
that Ryan had no authority to terminate or file a
termination of Heart and Lung Act benefits, nor were they
made aware that they could decline to sign the agreement
and then go before an arbitrator if the City filed a
_________________________________________________________________

worker's compensation, but who were not eligible for the enhanced
incentive pension. Those officers would not be "similarly situated" to
those receiving the 75% pension, and thus the provision would not be
unconstitutional on its face. Here, however, it is clear that the Retirees
each had achieved the age and service requirement, and thus we must
determine whether the provision is unconstitutional as applied to them.

                               5
termination petition. Retiree Arthur Marunich, however,
refused to sign the supplemental agreement, and received a
hearing in front of an arbitrator in accordance with the
arbitration award's grievance procedure.3

After Leheny and Ramsey signed the supplemental
agreements, they applied for the 75% pensions provided for
by the arbitration award. In January 1993, the City's
Policemen's Relief and Pension Fund (the "Fund") approved
Leheny's and Ramsey's applications for retirement benefits.
However, instead of awarding the 75% pension, the Fund
awarded Leheny and Ramsey the 50% pension in
accordance with the provisions of the arbitration award
because they were receiving worker's compensation
benefits.

After exhausting administrative procedures, the Retirees
filed a complaint in the district court, alleging, inter alia,
that the City, the F.O.P. and the Fund had violated their
rights to equal compensation under the ADA, as well as
their equal protection and due process rights.

The Retirees filed a motion for class certification on
September 2, 1994. On January 27, 1995, the City moved
for summary judgment. The Retirees also filed a motion for
partial summary judgment. These motions were assigned to
a Magistrate Judge, who conducted a hearing and
subsequently issued her report and recommendation from
the bench. She recommended that: (1) the Retirees' partial
motion for summary judgment be denied; (2) the City's
motion for summary judgment be granted as to the
Retirees' ADA claim, but be denied in all other respects;
and (3) the motion for class certification be denied as moot
if the district court agreed that the ADA claim should be
dismissed.

The district judge adopted and approved the report and
recommendation in toto, and set the matter for trial.
Another district judge presided at the trial. At the close of
the Retirees' case-in-chief, the City moved for judgment as
a matter of law. The district court reserved ruling on the
_________________________________________________________________

3. Because Marunich received a hearing before an arbitrator, he did not
allege a violation of his due process rights.

                                6
motion. At the close of all evidence, the City renewed its
motion for judgment as a matter of law. Once again, the
court reserved ruling.

The jury issued special verdicts, finding that: (1) the
F.O.P. was not acting under color of state law and therefore
could not be held liable on the constitutional violation
claims; (2) the City violated Leheny's and Ramsey's due
process rights when it forced them to sign the supplemental
agreements; (3) Leheny and Ramsey were entitled to
compensatory damages in the amounts of $15,000 and
$22,000 respectively for the due process violations; and (4)
the City deprived the Retirees of their equal protection
rights when it determined that the Retirees were only
entitled to a 50% pension and 66 2/3% worker's
compensation benefits. After the verdicts were rendered, the
district court denied the City's motion for judgment as a
matter of law.

The City timely filed a motion for a new trial, which was
immediately denied. On April 14, 1998, the Retireesfiled a
motion for prejudgment interest and a motion for costs and
attorney's fees. The district court granted the Retirees'
motions on May 22, 1998, without explanation: The court
simply signed the Retirees' proposed form of order. These
appeals followed.4

On appeal, the City contends that the district court was
obligated, pursuant to case law from this court, to grant the
motion for judgment as a matter of law as to the Retirees'
equal protection claim. Further, the City argues that the
Retirees, as a matter of law, failed to establish that they
had been forced to retire in violation of their due process
rights. Conversely, the Retirees contend that our holding in
Ford v. Schering-Plough Corp., 

(3d Cir. 1998),
requires reinstatement of their ADA claim, and that the
district court abused its discretion when it denied their
motion for class certification.5
_________________________________________________________________

4. The F.O.P. and the Fund are not parties to these appeals.
5. The City has also appealed certain evidentiary rulings made by the
district court concerning the admissibility of testimony of non-disabled
officers' post-retirement earnings and the district court's failure to
explain its award of prejudgment interest and attorney's fees. These
issues, as well as the Retirees' appeal of the denial of the motion for
class certification, need not be addressed because of the discussion that
follows.

                                7
II.

We review de novo the district court's denial of the City's
motions for judgment as a matter of law. Paolella v.
Browning-Ferris, Inc., 

, 189 (3d Cir. 1998). "A
motion for judgment as a matter of law should be granted
only if, `viewing all the evidence . . . in the light most
favorable to the party opposing the motion, no jury could
decide in that party's favor.' " 

v. Holiday
Inns, Inc., 

, 1238 (3d Cir. 1993)). Review of
the district court's grant of summary judgment in the City's
favor as to the Retirees' ADA claim is also plenary. Pavlik v.
Lane Limited/Tobacco Exporters Int'l, 

, 880 (3d
Cir. 1998).

III.

We conclude that the Retirees' constitutional law claims
are inconsistent with the teachings of this court in
Buczynski v. General Motors Corp., 

, 1246
(3d Cir. 1980), aff'd sub nom. Alessi v. Raybestos-
Manhattan, Inc., 

(1981), that held that the
Employee Retirement Security Act of 1974 ("ERISA") did not
invalidate a pension plan provision authorizing reductions
or offsets of pension benefits by amounts received by
pensioners under a worker's compensation statute.

A.

We begin our analysis of the Retirees' contention that the
arbitration award violated the Equal Protection Clause with
a determination of the appropriate standard of review. See
Donatelli v. Mitchell, 

, 513 (3d Cir. 1993). The
Retirees have alleged that state action disparately affected
the economic rights of a specific group of retired Pittsburgh
police officers. Because the City's action involves neither
fundamental rights nor suspect classifications, it is
accorded a strong presumption of validity and is subject to
rational basis review, in which the Retirees must establish
that the action was not rationally related to effecting any
legitimate government purpose. Heller v. Doe, 

,
319-321 (1993).

                                8
It is clear that the City's asserted purposes for creation of
the early retirement incentive--to maintain the City's fiscal
integrity and to avoid paying duplicate benefits--are
legitimate government concerns. See Graham v. Richardson,

, 371-376 (1971). Accordingly, the primary
question presented here is whether the early retirement
incentive, with its distinction between retirees who receive
worker's compensation and those who do not, bears a
rational relationship to those asserted purposes.

In the context of an ERISA-based action, in Buczynski we
addressed whether pension benefits and worker's
compensation benefits are interchangeable. We were called
upon to determine whether ERISA invalidated a pension
plan provision that authorized the reduction or offset of
pension benefits by amounts received by pensioners under
the worker's compensation statute. The court conducted a
lengthy analysis that analogized provisions of the Internal
Revenue Code and applicable legislative history regarding
Congressional approval of offsets of pension benefits by
amounts received from the Social Security Administration
to the type of offset at issue here. See 

. In S 1021(e) of the Internal Revenue Code, 26
U.S.C. S 401(a)(15), Congress specifically permitted such
offsets of pension benefits irrespective of ERISA's
nonforfeiture provision, 29 U.S.C. S 1053(a).

The pensioners in Buczynski argued that offset of
pension benefits by amounts received from worker's
compensation could not be sustained on the basis of
Congress' approval of the Social Security offset. The
pensioners argued that Social Security benefits and pension
benefits

       are both designed to compensate for wages lost as a
       result of old age, and therefore the Social Security
       offset simply avoids a duplication of benefits directed to
       the same end. Workmen's Compensation, by contrast,
       is designed to compensate for losses flowing from
       employment related injuries; thus, the Workmen's
       Compensation offset . . . cannot be defended as a
       means to avoid duplication of benefits.

Buczynski, 616F.2d at 1246.

                               9
We disagreed with the pensioners' reasoning:

       The plaintiffs' argument here fails to recognize the
       breadth of the Social Security program. Social Security
       provides benefits for disabilities, see 42 U.S.C. S 423
       (1976), as well as benefits for old age. Thus, the Social
       Security offset that Congress has approved includes,
       perforce, an offset against pension benefits for
       disability benefits. The Social Security offset, since it
       includes an offset of disability benefits, makes any
       purported distinction between the Social Security offset
       and the Workmen's Compensation offset meaningless.
       The disability offset, included within the Social Security
       offset, thus compels us to reject any purported
       distinction between Social Security offsets and
       Workmen's Compensation offsets.

the Court put its imprimatur on our
discussion. 

.

Although Buczynski involved an ERISA-based challenge
rather than a challenge under the Constitution, the
precepts enunciated in that case are controlling here. Our
holding in Buczynski can be distilled to a single concept: An
offset of pension benefits by a portion of the benefits
received from worker's compensation is permissible, in the
same manner as an offset of Social Security benefits,
because both offsets encompass, at least in part,"an offset
of disability benefits, mak[ing] any purported distinction
between [a] Social Security offset and [a] Workmen's
Compensation offset meaningless." 

. Because Buczynski stands for the proposition that an
offset of pension benefits by an amount of received worker's
compensation benefits is permissible, the offset enforced by
the City bears a rational relation to the stated government
purposes of maintaining fiscal integrity and preventing
payment of duplicate benefits, and therefore withstands
equal protection scrutiny.6
_________________________________________________________________

6. The City's position is made stronger by the arbitration award's
provision concerning disabled retirees whose worker's compensation
benefits terminate. The award states that once a retiree's worker's
compensation benefits cease, the retiree will receive the 75% pension
given to all non-disabled retirees. Thus, at no point will a retired
disabled Pittsburgh police officer receive less than his non-disabled
counterparts.

                               10
Decisions from several state courts, relied upon by the
Retirees, do not qualify as proper analogies or persuasive
argument. See, e.g., Industrial Claim Appeals Office v.
Romero, 

(Colo. 1996) (in banc ); State ex rel.
Boan v. Richardson, 

(W. Va. 1996). The
decision in Buczynski controls this case and the district
court erred when it denied the City's motion for judgment
as a matter of law on the equal protection claim.

B.

Similarly, the Retirees' due process claim should have
been dismissed. The City concedes that the Retirees had a
valid property interest in their employment and retirement
benefits. We must, therefore, focus on whether the Retirees
retired voluntarily or were constructively discharged. See
Zepp v. Rehrmann, 

, 385-386 (4th Cir. 1996).
To make this determination, we examine "the surrounding
circumstances to test the ability of the employee to exercise
free choice." Scharf v. Department of the Air Force, 

, 1574 (Fed. Cir. 1983).

Employee resignations and retirements are presumed to
be voluntary. See Angarita v. St. Louis County, 

, 1544 (8th Cir. 1992). This presumption remains
intact until the employee presents evidence to establish
that the resignation or retirement was involuntarily
procured. 

employee retires of his own free will,
even though prompted to do so by some action of his
employer, he is deemed to have relinquished his property
interest in his continued employment for the government,
and cannot contend that he was deprived of his due
process rights. See Hargray v. City of Hallandale, 

, 1567 (11th Cir. 1995); Stone v. University of Md.
Medical Sys. Corp., 

, 173 (4th Cir. 1988).
There appear to be two circumstances in which an
employee's resignation or retirement will be deemed
involuntary for due process purposes: 1) when the employer
forces the resignation or retirement by coercion or duress,
or 2) when the employer obtains the resignation or
retirement by deceiving or misrepresenting a material fact
to the employee. See 

.

                                11
The Retirees contend that they signed the supplemental
agreements because of material misrepresentations made
by Kelly Ryan in the letter she sent on behalf of Sedgwick
James to an attorney for the F.O.P. The Retirees contend
that Ryan's letter led them to believe that if they did not
sign the supplemental agreements, they would not only lose
their Heart and Lung Act benefits, but also their pension
and any available worker's compensation benefits. Ryan's
letter, dated December 3, 1992, stated, in relevant part:

       Enclosed are various supplemental agreements for the
       following claimants who are currently receiving Heart
       and Lung Benefits. The medical information in their
       files indicate that they are suffering from a permanent
       disability and therefore are not entitled to receive Heart
       and Lung benefits. . . . Please have the supplemental
       agreements executed and returned to me by December
       14, 1992. Once the agreements are received, their
       wages will be reduced to the compensation rate
       indicated on the agreement. If anyone decides not to
       sign the agreement, then I will have no recourse but to
       file a Termination with the Heart and Lung Panel.

App. at 137. The Retirees argue that their due process
rights were violated because the letter coerced them into
retiring. We disagree.

Ryan's letter could not have violated the Retirees' due
process rights because the Retirees had decided to retire in
August 1992, four months before they saw Ryan's letter. In
August 1992, the Retirees volunteered to be placed on a list
of police officers who had reached 50 years of age and
provided 25 years of service and who wished to retire at
some time between January 1, 1992 and December 31,
1995. See, e.g., App. at 121 (letter from F.O.P. to officers
describing terms of arbitration award and requirements for
early retirement incentive), 123-124 (Leheny's Retirement
Incentive Window Irrevocable Application Form, dated
August 20, 1992). The City had the right to retire the
Retirees at any time between January 1, 1992 and
December 31, 1995, once all List A officers had been retired
by the City. Thus, the City, by asking the Retirees to sign
the supplemental agreements, had merely approved the
Retirees' retirement and had made a determination that the

                               12
Retirees were permanently disabled. Ryan's letter indicates
just that: She would seek to terminate Heart and Lung Act
benefits as part of the officers' retirement on the basis of
permanent disability. Although it is possible that Ryan's
letter may have confused Leheny and Ramsey concerning
the applicable procedures for terminating Heart and Lung
Act benefits, no part of the letter would lead a reasonable
police officer to believe that refusal to sign the
supplemental agreements would result in termination of all
benefits.

Additionally, we have held that in cases in which "a due
process claim is raised against a public employer, and
grievance and arbitration procedures are in place, .. . those
procedures satisfy due process requirements `even if the
hearing conducted by the Employer . . . [is] inherently
biased.' " Dykes v. SEPTA, 

, 1571 (3d Cir.
1995) (quoting Jackson v. Temple Univ., 

, 933
(3d Cir. 1983)). Grievance procedures outlined in a
collective bargaining agreement can satisfy due process
requirements. 

n.6.

Because Leheny testified that he received the arbitration
award and attended a meeting in which the award was
explained, he is deemed to have been aware of the
applicable grievance procedure. There is no evidence to
suggest that the Retirees spoke to a supervisor or
representative of the F.O.P. or the City prior to signing the
supplemental agreement. The Retirees had ten days to
investigate the implications of refusing to sign the
supplemental agreement, ten days to seek the advice of a
union representative concerning available grievance
procedures if they did not wish to sign the supplemental
agreement. If the officers were not convinced that they were
permanently disabled, their recourse was to go before an
arbitrator to contest the City's determination of permanent
disability. Officer Marunich followed this procedure, and as
a result is not included in the Retirees' due process claim.
Leheny and Ramsey did not. Not availing themselves of the
process that was available to them, they may not complain
now that they were deprived of due process of law.

For all of the above reasons, we conclude that the district
court erred in not dismissing the due process claim.

                               13
C.

The district court properly granted summary judgment
for the City regarding the Retirees' ADA claim. The Retirees
were unable to establish that they had been victims of
discrimination under the ADA.

The ADA prohibits discrimination in the terms and
conditions of employment, and states in relevant part:

       No covered entity shall discriminate against a qualified
       individual with a disability because of the disability of
       such individual in regard to job application procedures,
       the hiring, advancement, or discharge of employees,
       employee compensation, job training, and other terms,
       conditions, and privileges of employment.

42 U.S.C. S 12112(a).

       [N]o 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. S 12132. The Retirees contend that the
arbitration award's early retirement incentive provision
violates their right to equal compensation under the ADA.

Although the parties dispute whether the Retirees were in
fact "disabled" for purposes of the ADA, we need not
address this issue to conclude that the ADA claim was
properly dismissed. Assuming that the Retirees were
"disabled," we conclude that they failed to present evidence
demonstrating that the City impinged upon their right to
equal compensation.

As the district court properly noted, there is no evidence
that the Retirees are receiving less than their non-disabled
counterparts who receive a 75% pension without service
increments. The evidence establishes that disabled retired
officers, who receive a 50% pension with service increments
plus a 66 2/3% worker's compensation award, actually
receive greater compensation than non-disabled retirees.
Indeed, the Retirees receive more than 100% of the salary
they received while actively employed as police officers.

                               14
The Retirees argue that even though they may receive
greater compensation than their non-disabled counterparts,
they are nonetheless victims of ADA-based discrimination
because non-disabled retirees are able to obtain new
employment for any amount of compensation and, because
of their disability, they are limited to the 66 2/3% worker's
compensation benefits they receive.

Without considering that the Retirees would still face the
possibility of receiving lesser earnings than non-disabled
retirees even if they received a 75% pension because non-
disabled retirees would be able to obtain employment
elsewhere, we conclude that their argument is not
persuasive. The Retirees are not prevented from receiving a
75% pension if they so desire. The arbitration award clearly
states that every police officer who has attained 50 years of
age and 25 years of service is entitled to receive a 75%
pension upon retirement from the police force. Disabled
officers are not required by the arbitration award to accept
the 50% pension and 66 2/3% worker's compensation.
There is nothing in the circumstances presented here that
prevents a retired police officer from rejecting worker's
compensation payments and thereby receiving the 75%
pension. This is made quite clear by the express language
of the arbitration award:

       In the event that such employee's worker's
       compensation benefits are reduced or eliminated after
       retirement, the employee shall be entitled to such
       pension enhancement as is necessary to maintain a
       benefit, including worker's compensation, if any, which
       is 75% of average monthly pay at retirement.

App. at 116.

Our decision today fits squarely with our holding in Ford
v. Schering-Plough 

, which, surprisingly, the
Retirees have cited as support for their position. The
plaintiff in that case alleged that her former employer's
insurance plan, which provided a two-year cap for benefits
for mental disabilities while providing no cap for benefits for
physical disabilities, violated the ADA. After determining
that the ADA permits disabled individuals to sue their
former employers regarding their disability benefits, we

                               15
addressed the disparity in available benefits for mental and
physical disabilities. We held that the plaintiff had not
stated a claim for violation of the ADA:

       Every Schering employee had the opportunity to join
       the same plan with the same schedule of coverage,
       meaning that every Schering employee received equal
       treatment. So long as every employee is offered the
       same plan regardless of that employee's contemporary
       or future disability status, then no discrimination has
       occurred even if the plan offers different coverage for
       various 

.

In Ford court we were faced with a stricter benefit plan
than the one presented here. The disability policy explicitly
cut off benefits to employees with certain disabilities at the
same time it continued benefits for employees with other
types of disabilities. Yet, we ruled that the policy did not
violate the ADA.

The pension plan and arbitration award presented here
fall within the teachings of Ford. Every police officer who
has attained 50 years of age and 25 years of service is
permitted to receive a 75% pension upon retirement from
the force; "every employee is offered the same plan
regardless of that employee's contemporary or future
disability status." The individual retiree is given the
responsibility to decide whether or not to accept worker's
compensation in lieu of a 75% pension. Because every
eligible retiree is entitled to receive a 75% pension, and
because each of the Retirees is permitted to receive a 75%
pension when he no longer receives worker's compensation
benefits, there is no violation of the ADA.

IV.

In light of the view we take, we need not address the
remaining arguments presented by the parties. The
judgment of the district court will be affirmed in part and
reversed in part in accordance with the foregoing.

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A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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