Summary
In Davidson v. Atlantic City Police Department, WL 533698 (D.N.J. June 28, 1999), the plaintiff acknowledged that was not qualified to perform the essential functions of his job because of his psychological impairments.
Summary of this case from Brown v. City of Long BranchOpinion
Civil Action No. 96-3884 (JBS).
June 28, 1999
Clifford L. Van Syoc, Esquire, VAN SYOC LAW OFFICES, CHARTERED, Cherry Hill, New Jersey, Attorney for Plaintiffs David and Elaine Davidson.
Matthew B. Wieliczko, Esquire, ZELLER BRYANT, Cherry Hill, New Jersey, Attorney for Defendants Atlantic City Police.
Department and Mayor James Whelan, Michael J. Blee, Esquire, TUOHY TUOHY, Atlantic City, New Jersey, Attorney for Defendant Michelle A. Polk.
Thomas F. Bradley, Esquire, HANKIN, SANDSON, SANDMAN, BRADLEY PALLADINO, P.C., Atlantic City, New Jersey, Attorney for Defendant John Mooney.
Joseph G. Antinori, Esquire, FOX ROTHSCHILD O'BRIEN FRANKEL LLP Voorhees, New Jersey, Attorney for Defendant Nicholas V. Rifice.
Louis M. Barbone, Esquire, JACOBS BARBONE, Atlantic City, New Jersey, Attorney for Defendant Gerald Tibbetts.
Randolph C. Lafferty, Esquire, YOUNGBLOOD, CORCORAN, ALELI, LAFFERTY, STACKHOUSE, GROSSMAN GORMLEY, P.C., Pleasantville, New Jersey.
OPINION
This matter is before the court on the motions for summary judgment of defendants the Atlantic City Police Department ("ACPD") and Mayor James Whelan, Michelle A. Polk, John Mooney, Nicholas V. Rifice, and Cornelius Kane, pursuant to Federal Rule of Civil Procedure 56(b). Plaintiff, David Davidson, Jr., alleges that defendants discriminated against him in violation of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 et seq., by refusing to grant him an extended leave of indefinite duration to recover from psychological problems that made it impossible for him to perform the essential functions of his job as a police officer.
The court finds that Davidson has not met his burden of demonstrating that he is a "qualified individual with a disability" within the meaning of the ADA because he has not shown that he could perform the essential functions of his job as a police officer with or without reasonable accommodation. Davidson concedes that he could not have performed the essential functions of his job without reasonable accommodation, and the ADA does not require an employer to grant the "reasonable accommodation" Davidson requested extended leave of indefinite duration in the hope that he would be able to perform the essential functions of his job at some uncertain point in the future, which turned out to be approximately one year. This finding also precludes liability under the LAD, which follows the same analytical framework as the ADA with respect to allegations of discrimination based upon a handicap. Accordingly, the court grants defendants' motions for summary judgment and dismisses Davidson's Amended Complaint with prejudice.
BACKGROUND
In October 1995, an anonymous letter complaining of poor working conditions on the Bravo Platoon (4:00 p.m. to midnight) and criticizing the shift commander, Captain Polk, was circulated to the Atlantic County Prosecutor's Office, the Mayor of Atlantic City, and the Chief of the ACPD. There was widespread speculation throughout the ACPD that Davidson, an eleven year veteran of the ACPD who had served as a patrolman on the Bravo Platoon under Polk for six years, was the author of the letter.
On October 22, 1995, Polk suspended Davidson for three days for reporting to work without his service weapon and radio and for insubordination. (Rifice Ex. 4.) At the time, Davidson considered the suspension unwarranted and believed that Polk was retaliating against him based on her suspicion that he had written the anonymous letter, but during his deposition in this case Davidson conceded that the he deserved the suspension because he had reported to work without his equipment and because certain remarks he made when confronted about not having his equipment could have been construed as insubordinate. (Davidson Tr. at 82:4-19.)
After Davidson served his suspension and returned to work in early November 1995, he developed symptoms of stress, anxiety and depression as a result of widespread rumors throughout the ACPD that he was the author of the anonymous letter. On November 8, 1995, Davidson requested permission to take six vacation days from November 9 through November 17, 1995, which was approved by Polk. (Rifice Ex. 10.)
On November 15, 1995, Davidson was examined by Peter Kuponiyi, M.D., a physician affiliated with the ACPD. Dr. Kuponiyi determined that Davidson was "consumed with distrust in his department," was experiencing "intense feelings of alienation," and was "pathologically fearful of what might happen if he needs `a back up' vehicle on patrol, especially since he is referred to as `a rat.'" (Rifice Ex. 13.) Dr. Kuponiyi recommended that Davidson surrender his weapon "pending resolution of the crisis" and that Davidson "be evaluated by a psychiatrist . . . before returning to work." (Id.) In fact, Davidson began treatment with Dr. Suzanne J. Zipes on November 15, 1995.
On November 16, 1995, Sergeant James T. Brady retrieved Davidson's service weapon and had Davidson sign a request for extended sick leave. (Rifice Ex. 14.) Specifically, Davidson requested permission to borrow 15 days sick time from his 1996 allotment because he was "currently unable to work due to stress." (Rifice Ex. 12.) Davidson also requested that he be granted "extended sick leave for the duration of [his] illness" upon the expiration of the 15 sick days. (Id.) Davidson's request to borrow 15 days sick leave from his 1996 allotment and his request for extended sick leave was marked "Approved" on November 20, 1995. (Id.)
On November 26, 1995, Davidson was examined by Gary M. Glass, M.D., at the ACPD's request. Dr. Glass concluded that Davidson "suffers from no substantial psychiatric or emotional condition, except perhaps a Narcissistic Personality Disorder." (Rifice Ex. 16.) Dr. Glass specifically expressed his belief that Davidson was not suffering from "any psychiatric or emotional condition that would impair his ability to function adequately in his role as a law enforcement officer." (Id.)
On December 15, 1995, Captain Gerald W. Tibbetts telephoned Davidson to communicate a direct order from Rifice to report for work that day. (Rifice Ex. 17.) Davidson reported for duty that afternoon, but upon his arrival advised Sergeant James Goss that he needed to leave to check himself into the Psychiatric Intervention Program at the Atlantic City Medical Center. (Rifice Ex. 18.) Goss sent Davidson to the hospital, but contacted Davidson by radio while Davidson was on his way to the hospital and advised him to return to roll call after Goss was advised by Inspector Kane that Davidson "had been cleared to return to work by the city psychiatrist." (Id.) Davidson returned to work, but told Goss he was unable to work. (Id.) Goss sent Davidson home, advising him that he would be carried as "0" for the shift because he had no sick time available. (Id.)
On December 20, 1995, Davidson requested extended sick leave "as a result of work related depresses, and anxiousness (sic.)." (Rifice Ex. 21.) Davidson enclosed a letter from Dr. Zipes, who advised that she had been treating Davidson since November 15, 1995. (Rifice Ex. 22.) Dr. Zipes explained that Davidson was suffering from "depression and anxiety" as a result of "intra-departmental deviciveness (sic.) which has exacerbated any minimum symptoms of depression he may have had" before beginning treatment with her. (Id.) Zipes specifically requested "four weeks of medical leave" for Davidson, at which time she would "re-evaluate the situation as [Davidson] is very anxious to return to work." (Id.)
On December 27, 1995, Rifice granted Davidson extended sick leave through February 1, 1996. (Rifice Ex. 23.) Rifice requested that Davidson's counselor (Zipes) supply a weekly progress report, and indicated that Davidson's status would be re-evaluated on February 1, 1996. (Id.)
On January 3, 1996, Zipes provided Davidson with a doctor's note authorizing his return to work with "No Restrictions" on January 10, 1996. (Rifice Ex. 24.) Thus, on January 3, 1996, Rifice prepared a personnel order transferring Davidson from the inactive roster to the Charlie Platoon, effective January 10, 1996. (Rifice Ex. 27.)
Davidson did not report for work on January 10, 1996. (Rifice Ex. 28.) Davidson contacted Sergeant Brady and requested a personal day, but after Brady advised him that he did not have authority to grant a personal day, Davidson chose to take a sick day. (Id.) When Captain Mooney arrived at work and learned of the situation, he contacted Davidson by telephone to ask why Davidson had not reported for duty. (Id.) After initially declining to explain his reasons for requesting a personal day, Davidson explained that he had filed a hardship grievance regarding his assignment to the Charlie Platoon. (Id.) Mooney told Davidson that he would carry him sick for that day, but that he would list Davidson as "Not At Roll Call" if failed to report for future shifts while processing his hardship grievance. (Id.) By letter dated January 12, 1996, Dr. Zipes informed the ACPD that Davidson "states he is unable to work due to new stressors in his life." (Rifice Ex. 29.) Zipes further stated that Davidson "was anxious to return to Platoon Bravo on the 4-12 shift before his medical leave expired on 1/10/96," but that Davidson had "articulated that he is not willing to work 12 am to 8 am due to his family obligations." (Id.) By letter dated January 12, 1996, Assistant City Solicitor Kelley Hasson Blanchet requested Dr. Zipes to "provide a more detailed letter which more clearly assesses Mr. Davidson's `fitness for duty.'" (Rifice Ex. 30.) It is not clear whether Dr. Zipes ever responded to this request.
On January 19, 1996, Rifice ordered Davidson to report for duty on the Charlie Platoon on January 21, 1996. (Rifice Ex. 31.) Davidson did not report for duty on January 21, 1996, nor did he report for duty on January 24, 1996. (Rifice Ex. 32.) In fact, Davidson did not report for duty again until January 27, 1996, after missing four days of work without leave. (Rifice Ex. 33.) In response to an order from Captain Mooney to complete a report explaining his absence from work, Davidson stated that because Dr. Zipes "was in touch with the City Silicitor's (sic.) office" and "had furnished the paper work requested to Kelly Blanchett . . . [i]t was [his] belief that [he] was out on extended sick leave." (Rifice Ex. 34.) Davidson claimed to have learned only on January 26, 1996 that the ACPD "was no longer excepting (sic.) Dr. Jackie Zipes' reccommendations (sic.) that [he] remain out of work due to an acute stress disorder." (Id.) Davidson closed his report by stating:
It is not my desire, nor has it been to create the problems that I am obviously causing. Despite the fact that I am still suffering from an acute stress disorder, as well as depression it is not my desire to be fired. I want to do the job I am payed to do, and have the opportunity to work on the problems I am experiencing.
(Id.) Mooney found Davidson's explanation for his absences from work "unacceptable" and recommended consideration of suspension without pay for Davidson's violations of various ACPD rules. (Rifice Ex. 33.)
On February 1, 1996, Davidson called in sick for his scheduled tour of duty claiming "stress." (Rifice Ex. 36.) When called by Sergeant Friedrich at home, Davidson explained that he had a doctor's appointment on January 31, 1996 but did not obtain a note and that he was scheduled for a follow-up appointment at 9:30 a.m. on February 1, 1996 in Cherry Hill. (Rifice Ex. 37.) Davidson stated that he would obtain a note regarding his February 1, 1996 doctor's appointment. (Id.) Davidson also called in sick on February 2, 1996 and February 4, 1996. (Rifice Exs. 38 and 39.)
On February 15, 1996, the ACPD filed a Preliminary Notice of Disciplinary Action against Davidson for Absence from Duty and Insubordination, in violation of ACPD Rules 3:2-3 and 3:1.10, respectively. (Rifice Ex. 40.) The notice advised Davidson of his right to a hearing on March 14, 1996 and that the potential disciplinary action that could be taken against him, pending the outcome of the hearing, included suspension for 180 days or removal from office. (Id.) Davidson was served with a copy of the notice on February 24, 1996. (Id.) On February 26, 1996, he notified the ACPD that he desired a hearing in connection with the charges against him. (Id.) No hearing was ever held, however, and Davidson was not suspended. (Rifice Ex. 41.) Davidson was transferred to inactive service on July 16, 1996. (Id.) Davidson returned to active duty sometime after June 9, 1997, after he testified during his deposition in this case on April 30, 1997 that he had felt ready to return to work since November 1996 and passed a fitness for duty examination on May 20, 1997. (Id.)
Davidson commenced this civil action on August 6, 1996 by filing a Complaint against the ACPD, Polk, Mooney, Rifice, Tibbetts, Kane, Whelan and numerous John Doe defendants. On August 22, 1996, Davidson filed an Amended Complaint against the same defendants. In the First Count of the Amended Complaint, Davidson alleges that the defendants violated the ADA by refusing his request for a reasonable accommodation, denying reimbursement for the medical expenses he incurred in seeking treatment and counseling for his psychological problems, and instituting disciplinary charges against him resulting in his suspension from work. (Amended Complaint at ¶¶ 24-26.) In the Second Count of the Amended Complaint, Davidson alleges that the defendants also violated the LAD by discriminating against him on the basis of his "emotional handicap." (Id. at ¶ 28.) In the Third Count of the Amended Complaint, Davidson's wife, Elaine Davidson, asserts a claim for per quod damages. (Id. at ¶¶ 29-30.)
The ACPD and Whelan, Polk, Mooney, Rifice and Kane now move for summary judgment.
Although he filed a notice of intent to submit a motion for summary judgment on July 21, 1998, Tibbetts never actually filed a motion for summary judgment or joined in the motion of any moving defendant. Thus, while the reasoning of this Opinion may be applicable to Tibbetts as well as to the moving defendants, the court does not actually decide any issues with respect to Tibbetts in this ruling and Davidson's case against Tibbetts remains alive. Tibbetts is hereby directed to promptly file his own motion for summary judgment in accordance with Local Civil Rule 7.1(c) if he wishes to have the court adjudicate Davidson's claims against him before trial.
DISCUSSION
A. Summary Judgment StandardA court may grant summary judgment only when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue is "genuine" if it is supported by evidence upon which a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if a dispute about it might affect the outcome of the suit under the governing substantive law. Id. In deciding whether a genuine issue of material fact exists, the court must view the facts in the light most favorable to the non-moving party and extend all reasonable inferences to that party.Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The moving party always bears the initial burden of demonstrating the absence of a genuine issue of material fact, regardless of which party ultimately would have the burden of persuasion at trial. Celotex, 477 U.S. at 323. Once the moving party has met its opening burden, the non-moving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. at 324. The non-moving party may not rest upon the mere allegations or denials of its pleadings. Id. "[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. "When the record is such that it would not support a rational finding that an essential element of the non-moving party's claim or defense exists, summary judgment must be entered for the moving party." Turner v. Schering-Plough Corp., 901 F.2d 335, 341 (3d Cir. 1990).
B. Davidson's ADA Claim
In order to make out a prima facie case of employment discrimination under the ADA, a plaintiff must prove three elements: (1) that he is a disabled person within the meaning of the ADA; (2) that he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) that he has suffered an adverse employment decision as a result of his disability. Gaul v. Lucent Technologies, Inc., 134 F.3d 576 (3d Cir. 1998); Van de Pol v. Caesars Hotel Casino, 979 F. Supp. 308, 312 (D.N.J. 1997).
In the present case, Davidson's ADA claim fails as a matter of law because he has not met his burden of demonstrating that he was qualified to perform the essential functions of his job as a police officer, with or without reasonable accommodations by the ACPD, between November 1995 and November 1996. See Van de Pol, 979 F. Supp. at 313 ("Plaintiff has the burden of proving that he can perform the essential functions of the position with or without reasonable accommodation") (citing Benson v, Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir. 1995)). Viewing the facts most favorably to Davidson, as required in adjudicating this summary judgment motion, Davidson has failed to adduce sufficient facts from which a reasonable jury could find that this essential prong of a prima facie case is present.
Davidson does not contend that he was able to perform the essential functions of his job as a police officer without reasonable accommodations between November 1995 and November 1996. Instead, he argues that "had [defendants] granted him his requested accommodation of extended sick leave, he would have returned to the [ACPD] able to perform the essential functions of his position as a police officer." (Plaintiff's Br. at 23.)
Under the ADA, however, a "reasonable accommodation" is one that will enable the disabled employee to perform the essential functions of his job in the present or the predictable near future, not at some uncertain future date. Thus, in Myers v. Hose, 50 F.3d 278, 283 (4th Cir. 1995), the appeals court affirmed the district court's granting of summary judgment for the defendant employer, rejecting the plaintiff's claim that his employer failed to reasonably accommodate his disability by refusing to grant him an extended leave of an unspecific period in which to bring his blood sugar and hypertension levels within acceptable levels. The court found the plaintiff's argument to be at odds with the plain meaning of the statute:
[Plaintiff's] argument fails to account for the statutory text. The ADA provides: "The term `qualified individual with a disability' means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8); see also 45 C.F.R. § 1232.3(i) ("Qualified handicapped person means . . . a handicapped person who, with reasonable accommodation, can perform the essential functions of the job or assignment in question."). Significantly, these provisions contain no reference to an individual's future ability to perform the essential functions of his position. To the contrary, they are formulated entirely in the present tense, framing the precise issue as whether an individual "can" (not "will be able to") perform the job with reasonable accommodation. Nothing in the text of the reasonable accommodation provision requires an employer to wait an indefinite period for an accommodation to achieve its intended effect. Rather, reasonable accommodation is by its terms most logically construed as that which presently, or in the immediate future, enable the employee to perform the essential functions of the job in question.Id.
Similarly, in Hudson v. MCI Telecommunications Corp., 87 F.3d 1167, 1169 (10th Cir. 1996), the appeals court affirmed the district court's granting of summary judgment for the defendant employer, agreeing that the plaintiff had failed to meet her burden concerning her status as a qualified individual under the ADA by arguing that her employer failed to reasonably accommodate her by refusing her request for unpaid leave of indefinite duration in which to seek treatment for carpal tunnel syndrome. The court agreed with the plaintiff's contention that "a reasonable allowance of time for medical care and treatment may, in appropriate circumstances, constitute a reasonable accommodation," but noted that the plaintiff had "failed to present any evidence of the expected duration of her impairment as of the date of her termination."Id. Noting that her employer "was not required to wait indefinitely for her recovery," the court held that the plaintiff "has failed to present evidence from which a reasonable jury could find that the accommodation she urges, unpaid leave of indefinite duration, was reasonable." Id.
In support of his argument that he should be considered a "qualified individual with a disability" within the meaning of the ADA, Davidson relies upon Dockery v. North Shore Medical Ctr., 909 F. Supp. 1550, 1556 (S.D.Fla. 1995), where the court acknowledged that "a person totally disabled at one point, may be considered a qualified individual if the allowance of a leave of absence . . . would provide them the opportunity to resume working at a later date." Davidson, however, ignores the court's actual holding that "as a matter of law, an employer is not required to grant a one-year leave of absence, and such an accommodation is, on its face, unreasonable." Id. at 1560. The court granted summary judgment to the plaintiff's employer, concluding:
In the end, there is nothing in the ADA to support the contention that an employer, faced with a completely disabled employee totally incapable of performing the essential functions of her job, and admittedly incapable of performing any work for at least six months, is forced to grant a one year leave of absence with the guarantee of a job upon the expiration of that year.Id. at 1561.
In light of this authority, the court holds that Davidson is not a "qualified individual with a disability" within the meaning of the ADA because he has not met his burden of demonstrating that he was able to perform the essential functions of his job as a police officer between November 1995 and November 1996, with or without reasonable accommodation. The ACPD did not violate the ADA by denying Davidson's request for extended leave of an indefinite duration, as there is nothing in the ADA that requires an employer to grant such a request.
In light of this holding, the court need not address the other arguments raised by defendants in their motions for summary judgment.
Moreover, the record evidence in this case reveals that the ACPD took reasonable measures to accommodate Davidson's psychological problems. The ACPD granted Davidson's November 8, 1995 request to take five vacation days between November 9 and November 17, 1996. (Rifice Ex. 10.) The ACPD then granted Davidson's November 16, 1996 request to borrow 15 sick days from his 1996 allotment and for extended sick leave for the duration of his illness upon the expiration of those 15 days, ordering him back to work on December 15, 1996 only after the physician to whom the ACPD referred Davidson for a psychiatric evaluation reported that Davidson was not suffering from any psychiatric or emotional condition that would impair his ability to function adequately in his role as a police officer. (Rifice Exs. 12, 16 and 17.) The ACPD then relented and granted Davidson extended sick leave through February 1, 1996, pursuant to Davidson's December 20, 1996 request, which was supported by a letter from his treating physician, Dr. Zipes, specifically requesting four weeks medical leave. (Rifice Exs. 21, 22 and 23.) Consistent with Dr. Zipes' recommendation that Davidson be re-evaluated at the end of the four-week leave and her offer to provide additional information, the memorandum granting Davidson extended sick leave through February 1, 1996 provided that he would be re-evaluated at that time and required Davidson to provide a weekly progress report from Dr. Zipes. (Id.) In granting these successive requests for medical leaves of finite durations, the ACPD repeatedly attempted to accommodate Davidson's mental condition through February 1, 1996. On January 3, 1996, however, Davidson produced a doctor's note from Dr. Zipes declaring Davidson fit to return to work with "No Restrictions" on January 10, 1996. (Rifice Ex. 24.) Accordingly, on January 3, 1996, the ACPD transferred Davidson from the inactive roster to Charlie Platoon effective January 10, 1996. (Rifice Ex. 27.) Davidson then refused to report for duty on January 10, 1996. (Rifice Ex. 28.) Dr. Zipes explained that Davidson "was anxious to return to Platoon Bravo on the 4-12 shift" but that he had "articulated that he is not willing to work 12 am to 8 am due to his family obligations." (Rifice Ex. 29.)
The ACPD's refusal to accept this explanation was not unreasonable, nor was it unreasonable for the ACPD to initiate disciplinary proceedings against Davidson in February 1996 after Davidson failed to report to work on numerous occasions in late January and early February without sufficient medical documentation. Even accepting Davidson's contention that his true reason for refusing to report for duty on Charlie Platoon was his severe anxiety and stress arising from his fear of retaliation by Captain Mooney based on the false rumors that he had written the anonymous letter criticizing Mooney's sister, Captain Polk, Davidson had no right under the ADA to require the ACPD to assign him to work on a particular shift under a particular supervisor. See, e.g., Weiler v. Household Finance Corp., 101 F.3d 519, 526 (7th Cir. 1996) (employee's request to be assigned to work under different supervisor not a "reasonable accommodation" under the ADA).
Finally, in light of the ACPD's assertion that it never suspended Davidson because it never held a hearing on the disciplinary charges against him, Davidson's testimony that he felt ready to return to work as of November 1996, and his subsequent return to active duty on the ACPD in the summer of 1997, it is not clear how Davidson was damaged in any way that is actionable under the ADA. In effect, the ACPD granted Davidson's request for extended sick leave by permitting him to return to work in the summer of 1997 without any disciplinary action having been taken against him.
C. Davidson's LAD Claim
The LAD expressly prohibits employment discrimination on the basis of handicap "unless the nature and extent of the handicap reasonably precludes the performance of the particular employment." N.J.S.A. 10:5-4.1. The elements of a prima facie case of employment discrimination on the basis of handicap are:
(1) the complainant was handicapped within the meaning of the law; (2) the complainant had been performing his or her work at a level that met the employer's legitimate expectations; (3) the complainant nevertheless had been fired; [and] (4) the employer had sought another to perform the same work after complainant had been removed from the position.Nieves v. Individualized Shirts, 961 F. Supp. 782, 796 (D.N.J. 1997) (quoting Maher v. New Jersey Transit R.O., 125 N.J. 455, 480-81 (1991)).
The same analytical framework that applies to claims of employment discrimination on the basis disability in violation of the ADA also applies to claims of discrimination on the basis of handicap in violation of the LAD. See Olson v. General Electric Astrospace, 101 F.3d 947, 956 (3d Cir. 1996); Van de Pol, 979 F. Supp. at 312; Nieves, 961 F. Supp. at 796; see also Grigoletti v. Ortho Pharmaceutical Corp., 118 N.J. 89, 97 (1990) (noting reliance on federal discrimination law in development of substantive and procedural standards governing LAD claims). Thus, the plaintiff bears the initial burden of proving a prima facie case of discrimination under the LAD. Nieves, 961 F. Supp. at 796. If he succeeds, the burden then shifts to he defendant to articulate some legitimate, non-discriminatory reason for its actions. Id. If the defendant succeeds, the plaintiff must show that the proffered reason is merely a pretext for unlawful discrimination. Id. "A plaintiff will survive summary judgment if [he] can produce sufficient evidence that the employer's proffered reasons for the allegedly discriminatory action are merely a fabricated justification for that action." Id.
In the present case, the court finds that Davidson has not met his burden of demonstrating a prima facie case of employment discrimination on the basis of handicap because he cannot prove that he had been performing his work at a level that met the ACPD's legitimate expectations. The record evidence establishes that Davidson's psychological problems impaired his ability to meet the ACPD's most basic legitimate expectation that he report to work when scheduled. Indeed, Davidson concedes that he was unable to perform the essential functions of his job as a police officer during the relevant time period due to his psychological problems. Additionally, Davidson has not met his burden of demonstrating that the ACPD fired him. The record evidence reveals that Davidson was permitted to return to work in the summer of 1997 without having any disciplinary action taken against him.
Like the ADA, the LAD requires an employer to make "reasonable accommodations" for a handicapped employee. See Sallie v. Department of Transportation, 95 N.J.A.R.2d (CSV) 100 (1994), aff'd, 96 N.J.A.R.2d (CSV) 299, certif. denied, 146 N.J. 566 (1996). As with the ADA, however, there is nothing in the LAD that requires an employer to grant an employee who is unable to perform the essential functions of his job an extended leave of indefinite duration in the hope that the employee will one day regain the ability to perform the essential functions of his job. Accordingly, the court grants defendants' motions for summary judgment on Davidson's LAD claim.
CONCLUSION
For these reasons, the court grants the motions for summary judgment of defendants the ACPD, Whelan, Polk, Mooney, Rifice, and Kane and dismisses Davidson's Amended Complaint with prejudice as to them. The accompanying Order is entered.
ORDER
THIS MATTER having come before the court on the motions of defendants the Atlantic City Police Department ("ACPD") and Mayor James Whelan, Michelle A. Polk, John Mooney, Nicholas V. Rifice and Cornelius Kane, pursuant to Federal Rule of Civil Procedure 56(b), and the court having considered the submissions of the parties, and for the reasons set forth in the accompanying Opinion;
IT IS on this day of June, 1999, hereby ORDERED that the motions for summary judgment of defendants the ACPD, Whelan, Polk, Mooney, Rifice and Kane are GRANTED and that plaintiff's Amended Complaint is DISMISSED WITH PREJUDICE as to these defendants.