MULLARKEY v. DELAWARE RIVER PORT AUTHORITY

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

HONORABLE KAREN M. WILLIAMS

ROBERT MULLARKEY,

Civil Action

Plaintiff, No. 22-3083 (KMW-AMD)

v.

DELAWARE RIVER PORT AUTHORITY; OPINION

JOHN DOES 1-5 (fictitious individuals); and

ABC BUSINESS ENTITIES 1-5 (fictitious

business entities),

Defendants,

APPEARANCES:

Erica Domingo, Esq. William F, Cook, Esq.

JAVERBAUM WURGAFT HICKS Therese M. Taraschi, Esq,

ICAHN WIKSTROM & SININS, P.C, BROWN & CONNERY, LLP

1000 Haddonfield-Berlin Road, Suite 203 360 Haddon Avenue

Voorhees, NJ 08043 Westmont, NJ 08108

Attorneys for Plaintiff Robert Mullarkey Attorneys for Defendant Delaware River

Port Authority

WILLIAMS, District Judge:

I, INFRODUCTION

This matter comes before the Court on Defendant Delaware River Port Authority’s

(“Defendant”) Motion for Summary Judgment (ECF No. 55, “MSJ Br.”) pursuant to Fed. R. Civ.

P. 56. The Motion is opposed by Plaintiff Robert Mullarkey (‘Plaintiff’), who claims that his

former employer, Defendant, discriminated and retaliated against him because of his alleged

disability, and that he was otherwise qualified to perform the essential functions of a New Jersey

police officer, with or without reasonable accommodations by Defendant. (ECF No. 59, “P1.’s Opp.

Br.”) For the reasons set forth below, Defendant’s Motion for Summary Judgment is GRANTED.!

Ik. BACKGROUND

a. Plaintiff's Application to Defendant

Defendant, Delaware River Port Authority, is a regional transportation agency that serves

as steward of four bridges that cross the Delaware River between Pennsy!vania and New Jersey:

the Ben Franklin, Walt Whitman, Commodore Barry, and Betsy Ross Bridges. (Def.’s Statement

of Undisputed Material Facts ““SSUMF”) § 1, ECF No. 55.) Through its Port Authority Transit

Corporation, Defendant also operates a transit line between Camden County, New Jersey, and

Center City Philadelphia. (/d.)

On May 3, 2021, Plaintiff passed the written examination for the position of Police Officer

with Defendant. (/d. J 2.) He was interviewed for the position, completed a background check, and

was ultimately declared qualified for the position on or about June 29, 2021. Ud. 7 3.) The hiring

process for a Police Officer position at Defendant included passing written and physical fitness

examinations, a background check, being interviewed, and undergoing a psychological evaluation

to determine whether the applicant is qualified for the position. Ud. 4.)

On July 21, 2021, Plaintiff was offered the position of “Police Officer” in Defendant’s

Public Safety or Transit Unit department at the hourly rate of $27.49. Ud. J 5.) The offer letter

stated, in part: “This employment offer, however, is contingent upon successful medical/physica!

evaluations and background investigation. Regular full-time employment with the Delaware River

Port Authority is aiso contingent upon successful completion of the Police Academy Training

1 Pursuant to Local Civil Rule 78.1(b), this motion will be decided on the papers without oral argument.

Program. Thereafter, you must successfully complete a twelve (12) month probationary period as

detailed in the FOP Agreement.” Ud.) The “Job Description/Specification” for the Police Officer

position mandates that an applicant “must complete a state law enforcement certification in New

Jersey.” Ud, 6.) Article VIL, Section 3, of the Agreement between Defendant and Fraternal Order

of Police Lodge 30 (“FOP Agreement”) mandates successful completion of a training course at an

approved Police Academy (“Academy”):

Section 3. Qualified applicants for the position of patrol officers will

be hired without regard to the source of application. Patrol officers

shall be considered as probationary during the first twelve (12)

months of their employment and may be terminated, laid off,

promoted, demoted, disciplined, or transferred at the sole discretion

of [Defendant], and they shall not be entitled to utilize the provisions

of the grievance procedure. Each new patrol officer must

successfully complete a training course at an approved Police

Academy within his twelve (12) calendar month probationary period

as a condition of employment.

(Ud. 47 (citing Def’s Ex. F, 3-6.)) On July 23, 2021, Plaintiff signed the Position Acceptance

Form attached to his offer letter, affirming his understanding of the terms and conditions of his

employment with Defendant. Ud. § 8.) On July 30, 2021, Plaintiff began his employment as a

Police Officer with Defendant. (id. { 9.)

Plaintiff was made aware: (1) during the hiring process, (2) during his on-boarding for the

police officer position, (3) in his offer letter, job description, and the FOP agreement, and (4)

following his medical episode at the Academy that successfully completing the Academy and

obtaining his NJ PTC certification within his twelve calendar month probationary period was a

condition of his employment with Defendant, and that he would not remain employed with

Defendant if he failed to do so. (/d. fff] 11-12.) Plaintiff made several requests for a waiver from

Academy training, both prior to being hired by Defendant and prior to starting the Academy, on

the grounds that he was already a certified police officer in Pennsylvania. (fd. ¥ 13.)

The New Jersey Police Training Commission (““NJPTC”) exclusively determines whether

an individual will be granted a waiver from attending all or a portion of the Academy. (7d. § 14.)

Defendant does not make the decision of whether to grant a waiver, though it is permitted to request

a waiver from the Academy training on an employee’s behalf. Ud. § 15.) Defendant’s policy,

however, is to not seek waivers on behalf of newly hired officers with out-of-state certifications

and requires newly hired officers to attend a New Jersey Police Academy. (/d. 17.) Over the

years, at least fourteen newly hired officers with out-of-state certifications, many from

Pennsylvania, were required to attend the Basic Class for Police Officers (““BCPO”) at a designated

New Jersey Police Academy as a condition of their employment with Defendant. (id. 18.)

b. Plaintiff’s Medical Episode

The Camden County College Police Academy (“Academy”) is certified by the NJPTC to

offer basic police officer training. Ud. | 19.) The Academy is administered by a partnership

between Camden County College, the Camden County Prosecutor’s Office, and the Camden

County Chiefs of Police—Defendant does not administer the Academy. Ud. { 20-21.) The NJPTC

sets standards recruits are required to complete to graduate from the Academy, including the

attendance requirement that a recruit may only miss ten (10) days of classroom training or fifteen

(15) days of physical training or be dismissed from the Academy. Ud. ] 22-23.) The Academy

cannot deviate from the NJPTC’s standards. Ud. 4 24.)

On August 2, 2021, Plaintiff began his Academy training as a member of BCPO Class 79,

which was scheduled to run from August 2, 2021 until December 16, 2021. Ud. 26.) The same

day, Plaintiff signed an acknowledgment of his understanding that failure to meet the physical

training and classroom attendance requirements would result in his dismissal from the Academy

for cause, (Ud. § 27.) On August 9, 2021—the first day of physical training (“PT”) and first PT test

for Class 79-—Plaintiff fainted while running around the track on the physical training field at the

Academy and was taken by ambulance to Jefferson Stratford Emergency Department

(“Jefferson”). Ud. 31.) Plaintiff was diagnosed by emergency room physicians, Dr. Alan Lucerna,

DO and Alexis Dunn, DO, with “heat syncope,” initial encounter; acute kidney injury; and

dehydration.” (Ud. § 32.) Plaintiff was not admitted to the hospital—he was discharged after eight

(8) hours with a note from Dr. Lucerna indicating “Robert Mallarkey was seen and treated in our

emergency department on August 9, 2021. He may return to work on 08/16/2021.” Ud. 4 33.)

In the discharge paperwork, Plaintiff was advised to seek follow-up consultation with a

cardiologist, nephrologist, and primary care physician. (fd. | 34.) On August 9, 2021, Plaintiff’s

supervisor, Sergeant Santry, forwarded an email to Lieutenant Anthony Aceto at the Academy,

advising that Plaintiff “is NOT CLEARED to report to the Camden County Police Academy

tomorrow for class or for physical training. Please note, this employee is not being cleared by the

hospital at this time. Claims Administration will provide instructions once they are made available

by the hospital. The employee will remain out of work until directed otherwise by Claims

Administration.” Ud. 35.)

On August 9, 2021, Plaintiff provided Kevin Kerr, Defendant’s Claims Clerk, with his

discharge paperwork from Jefferson. The following day, Kerr provided this paperwork to Qual-

lynx, Defendant’s third-party administrator. dd. | 36.) On August 10, 2021, Plaintiff provided

Sergeant Santry with the DRPA Employee Accident/Incident Report (“Report”). Gd § 37.)

Sergeant Santry promptly completed the supervisor portion of the Report and provided the

completed Report to Defendant’s Acting Chief of Police, who forwarded it to Defendant’s Claims

Administration. Ud.) That afternoon, Defendant’s Claims Administrator Brenda Pringle provided

* “Syncope is another word for fainting or passing out. Someone is considered to have syncope if they become

unconscious and go limp, then soon recover.” (SUMF n.3.)

the Report to Qual-lynx and requested that a nurse be assigned. (/d. §] 38.) Plaintiff was promptly

assigned to Kelly Roth, RN, Nurse Case Manager Sr. Specialist, Qual-lynx Workers’

Compensation. (d.) Roth scheduled Plaintiff with the first available appointments for cardiac and

kidney evaluations, on August 16 and 20, 2021, respectively. Ud. | 39.)

Plaintiff visited The Heart House for his cardiac evaluation on August 16, 2021. (id. 7 40.)

The Impressions/Plan from the visit notes indicates, in part, “[Plaintiff] follows up today after

being discharged from the hospital for what sounds like acute dehydration followed by heat

exhaustion and probable early heatstroke symptoms.” Ud.) During that visit, an echocardiogram

(“EKG”) and treadmill stress test were ordered and Plaintiff was advised to “hold off on returning

to the police academy until his cardiovascular testing is done.” Ud. ¥ 41.) On August 20, 2021,

Plaintiff visited Banerjee Kidney Center. § 42.) The “History of Present IlIness” section of the

visit notes indicates, in part, “Training for the police academy, 8/9; Running for 1.5 miles, then .25

miles, then .3 mile in 85 degree heat with humidity without water. Had an episode of syncope.”

On August 20, 2021, Banerjee Kidney Center cleared Plaintiff to return to work from a renal

standpoint without restrictions, noting “Pt. has made a full recovery from his AKI, he is cleared to

go back to work from a renal standpoint.” Ud. 4 43.) The Qual-lynx paperwork completed by

Banerjee Kidney Center indicated Plaintiff may return to work “as long as cardiology clears.”

Regarding restrictions for the injury, it indicates “Does not apply from renal standpoint.” Ud. §

44.)

On August 25, 2021, Roth provided Pringle with Plaintiff’s appointment notes and notified

her that their insurance provider continued to keep Plaintiff from work pending an EKG scheduled

for August 26, 2021, and stress test scheduled for September 13, 2021. Ud. ¥ 45.) She further noted

that Plaintiff had been cleared from a renal standpoint. (/d.) On September 13, 2021, Plaintiff

visited the Heart House again for the ordered testing. 7d. § 46.) The next day, The Heart House

cleared Plaintiff to return to work without restrictions, indicating “[Plaintiff] has been following

[up} at The Heart House and had an extensive cardiovascular workup. His workup has been

completed and there is no contraindication for him to return to his full-time job and training as a

police officer.” Ud. § 47.) Thus, on September 14, 2021, Plaintiff was cleared to return to full duty

without restrictions, on September 14, 2021. Ud. 7 48.)

Plaintiff never provided Defendant with any medical documentation indicating he required

restrictions or light duty. Ud. {| 50.) Between August 10, 2021 and September 14, 2021, Plaintiff

believed he could not attend the classroom portion or the PT portion of the Academy, (Jd. 51.) It

was not until September 14, 2021 that Plaintiff believed himself physically capable of proceeding

with the Academy. (fd. ¥ 52.) The August 9, 2021 incident was the first and only time Plaintiff

experienced heat syncope—he has not experienced it since. dd. 53.)

e. Plaintiff’s Worker’s Compensation Claim and Alleged Adverse Employment

Decision

After Plaintiff's injury at the Academy on August 9, 2021, he did not return to the Academy

and exceeded the number of permitted Academy absences as set by the NJPTC. Ud. 7 54.) The

Academy notified Plaintiff that he had missed too many days of the Academy and that they had to

dismiss him, or he could resign in good standing. Ud. J 55.) Plaintiff sent Defendant an email

stating he did not feel comfortable resigning from the Academy without further guidance from

Defendant and acknowledged he was advised that his employment was contingent on graduating

from the Academy. Ud. {] 62.) Plaintiff also renewed his request for a waiver from Academy

training on the grounds that he held a Pennsyivania certification and was “already an active police

officer” in Pennsylvania. (/d.)

On August 24, 2021, Kerr responded to an email from Kelley Forbes, Defendants Human

Resources Director, indicating Plaintiff is eligible for workers’ compensation benefits and is

receiving such benefits. (/d. { 64.) Plaintiff received workers’ compensation benefits—lost wages

and medical bills—through Qual-lynx until he provided notes from the specialists indicating he

was cleared to return to full duty. dd. { 65.) Plaintiff was actually overpaid for a period of time

until the error was discovered and he was paid exclusively workers’ compensation benefits. (/d. J

66.) Defendant never sought to recoup the overpayment from Plaintiff. (/¢.)

Forbes researched whether Plaintiff could receive a waiver and her department determined

that Defendant “never granted waivers to PA Academy graduates. They always had to attend the

full NJ Police Academy.” Ud. { 67.) On August 24, 2021, Plaintiff resigned from the Academy and

notified Defendant. Ud. {| 71.) Defendant deemed Plaintiff’s resignation from the Academy as a

resignation from Defendant. (/d¢. 4 81.) On September 8, 2021, Forbes emailed Plaintiff as follows:

Your letter offering employment with the DRPA as a police officer

was clear that continued employment was contingent on completing

the Police Academy. Specifically, your offer letter dated July 21,

2021 states in pertinent part: “Regular full-time employment with

the Delaware River Port Authority is also contingent upon

successful completion of the Police Academy Training Program.

Thereafter, you must successfully complete a twelve (12) month

probationary period as detailed in the FOP Agreement,” In light of

the fact that you resigned from the Police Academy, you are no

longer able to meet the condition of employment as a police officer.

A waiver from participating in the Police Academy is not an option.

Therefore, your employment with the Delaware River Port

Authority ended when you tendered your resignation to the

Academy and is effective as of Tuesday, August 24, 2021. I wish

you all the best in your future endeavors.

(d. 4] 86.) In his deposition, Sergeant Santry testified that he recalled approximately halfa

dozen injured recruits over the years remaining on the payroll while recovering from minor sprains

and strains but did not recall that any of them had more than ten absences from the Academy,

resigned, or were no longer enrolled. (Plaintiff's Counterstatement of Material Facts (“CSUMP”)

190-191.) On September 9, 2021, Acting Chief Cobbs signed Plaintiff's DRPA/PATCO

Employee Separation form recording his separation from Defendant as a resignation. (/d. J 87.)

In the worker’s compensation proceedings, Dr. Gary Goldstein, M.D., evaluated Plaintiff

on July 28, 2022 and issued a permanency report on behalf of the Defendant noting in the “History

of Present Illness,” section:

He was told that he needed to see certain specialists to include a

renal specialist and a cardiologist. It took some time for these

evaluations to be completed. He was able to return to full-duty work

at his previous jobs and continues to work in this capacity. He works

40 hours a week at one job and 12-14 hours in the other job. He does

not have any work accommodations and does not feel he needs any.

He has never had any particular musculoskeletal or systemic issues

that affects his performance.

Ud. § 95.) In the “Current Status” section, Dr. Goldstein noted the foliowing: “There is

nothing that [Plaintiff] needs to do or feels that he should be able to do that he cannot do. . , The

patient has no long-term ill-effect or permanency reasonably attributable to the incident of

08/09/2021. . . The patient himself feels that he has no long-term ill-affect or permanency

reasonably attributable to the 08/09/21 incident. Ud. J] 96-98.)

d. Plaintiff’s Subsequent Employment

Plaintiff returned to work in October 2021—a few weeks after his resignation from the

Academy—as a police officer with his Pennsylvania police department on a part-time basis. (/d.

| 100.) In November 2021, Plaintiff obtained full-time employment as a police officer at Lincoln

University Pennsylvania, (Ud. § 101.) Plaintiff has worked as a full-time police officer at Drexel

University since 2022. Ud. § 102.) Plaintiff was able to work continuously in law enforcement and

perform the duties of a Pennsylvania police officer from October 2021 to the present. (fd. 102.)

Plaintiff, dd. § 104.)

I. LEGAL STANDARD

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). “A fact is ‘material’ under Rule 56 if its existence or nonexistence might impact the outcome

of the suit under the applicable substantive law.” Santini v. Fuentes, 795 F.3d 410, 416 (3d Cir.

2015) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)); see also MS. by &

through Hail v. Susquehanna Twp. Sch. Dist., 969 F.3d 120, 125 (3d Cir. 2020) (“A fact is material

if—-taken as true—it would affect the outcome of the case under governing law.”). Moreover, “[a]

dispute over a material fact is ‘genuine’ if ‘a reasonable jury could return a verdict for the

nommoving party.’” Santini, 795 F.3d at 416 (quoting Anderson, 477 U.S. at 248),

The moving party bears the burden of identifying portions of the record that establish the

absence of a genuine issue of material fact. /d. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986)). The burden then “shifts to the nonmoving party to go beyond the pleadings and come

forward with specific facts showing that there is a genuine issue for trial.” (quoting Matsushita

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotations omitted)).

To survive a motion for summary judgment, the nonmoving party must identify specific facts and

affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256-

57. “A nonmoving party may not ‘rest upon mere allegations, general denials or... vague

statements ....’” Trap Rock Indus., Inc. v. Local 825, Int’l Union of Operating Eng’rs, 982 F.2d

884, 890 Gd Cir. 1992) (quoting Quiroga v. Hasbro, Ine., 934 F.2d 497, 500 3d Cir. 1991)). When

considering a motion for summary judgment, the court views the facts and all reasonable

inferences drawn from the facts in the light most favorable to the nonmoving party. Matsushita

Indus. Co., 475 US, at 587. The threshold inquiry is whether there are “any genuine factual

10

issues that properly can be resolved only by a finder of fact because they may reasonably be

resolved in favor of either party.” Quincy Mut. Fire Ins. Co. v. Seripto USA, 573 F. Supp. 2d 875,

878 (D.N.J. 2008) (quoting Liberty Lobby, 477 U.S, at 250).

IV. DISCUSSION

a. Plaintiff Cannot Establish a Discrimination Claim Pursuant to the ADA.

The AdeDonnell Douglas burden-shifting framewerk applies to Plaintiff’s claims of

discrimination under Title VIL. AdeDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First,

Plaintiff “bears the initial burden of establishing a prima facie case by a preponderance of the

evidence.” Sarullo v, U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003). To establish a prima facie

case for disability discrimination under the ADA, a plaintiff must demonstrate that: “(1) he is a

disabled person within the meaning of the ADA; (2) he is otherwise qualified to perform the

essential functions of the job, with or without reasonable accommodations by the employer; and

(3) he has suffered an otherwise adverse employment decision as a result of discrimination.” Gau/

¥ Lucent Techs., Inc., 134 F.3d 576, 580 3d Cir. 1998). “The existence of a prima facie case of

empioyment discrimination is a question of law that must be decided by the court but the prima

facie test remains flexible and must be tailored to fit the specific context in which it is applied.”

Wishkin v. Potter, 476 F.3d 180, 185 (3d Cir. 2007).

Next, “if a plaintiff makes out the prima facie case, the burden shifts to the employer to

show that the adverse employment decision happened for legitimate, non-discriminatory reasons.”

Alston v. Park Pleasant, Inc,, 679 Fed, App’x. 169, 171 (3d Cir. 2017) (citing McDonnell Douglas

Corp., 411 U.S. at 802). Then, if the defendant succeeds, “the inference of discrimination drops

and the burden shifts back to the plaintiff to show that the defendant’s proffered reason is merely

a pretext for intentional discrimination.” Makky v. Chertoff, 541 F.3d 205, 214 Gd Cir. 2008). “If

11

each side meets its burden at each stage, then summary judgment is inappropriate.” Williams vy.

inspira Health Network, No. 22-07, 2023 WL 7151222, at *15 (D.N.J. Oct. 31, 2023) (citing

Wishkin, 476 F.3d at 185),

i. Plaintiff ls Not Disabled Within The Meaning Of The ADA,

A disability within the meaning of the ADA is defined as: “(A) a physical or mental

impairment that substantially limits one or more major life activities of such individual; (B) a

record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. §

12102(1) (emphasis added). An individual is “regarded as having such an impairment” if “the

individual establishes that he or she has been subjected to an action prohibited... because of an

actual or perceived physical or mental impairment whether or not the impairment limits or is

perceived to limit a major life activity,” Jd § 12102(3)(A). “{Ml]ajor life activities include, but are

not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping,

walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking,

communicating, and working.” fd. § 12102(2)(A).

The Court assesses whether a person is “substantially limited” in a major life activity on a

case-by-case basis. Matthews v. Pa. Dep t of Corr, 613 F. App’x 163, 167 (3d Cir. 2015); see also

29 CER. § 1630.2G@)()Gv) Wequiring “individualized assessment”). “This means that the

individual has been subjected to an action prohibited by the ADA as amended because of an actual

or perceived impairment that is not both transitory and minor.” 29 C.E.R. § 1630.2(g)(1)(@)-(iti).

The Equal Employment Opportunity Commission (“EEOC”) has further provided

guidance that the term of “physical impairment” to mean: “Any physiological disorder or

condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as

neurological, musculoskeletal, special sense organs, respiratory (including speech organs),

12

cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic,

skin, and endocrine.” 29 CLLR. § 1630.2(h)(1). It is well settled in the Third Circuit that “a

temporary, non-chronic impairment of short duration is not a disability covered by the ADA.”

Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 380 (3d Cir. 2002) (citing AfeDonald v. Pa. Dept of

Public Welfare, Polk Ctr, 62 F.3d 92, 96 (3d Cir, 1995)); see also Gardner v. SEPTA, 410 F. Supp.

3d 723, 736 (E.D, Pa. 2019) (Kenney, J.), aff'd, 824 F. App’x 100 (3d Cir. 2020).

“In 2009, the ADA was amended by the addition of Section 12102(3)(B) to exclude

‘transitory and minor’? impairments from the ‘regarded as’ category of disability.”

Minion v. Keystone Amerihealth Caritas, No. CV 16-5454, 2020 WL 3056286, at *8 (D.N.J. June

8, 2020) (citing Pub. L. No. 110-325, 122 Stat. 3553). However, “this exception only applies if

the impairment is both transitory, meaning lasting for less than six months, and minor, meaning

‘objectively non-serious.’” Jd. (citing Eshleman v. Patrick Indus, No. 19-1403, 2020 WL 2781300,

at *4-5 (d Cir, May 29, 2020)). An impairment is “transitory” if it has “an actual or expected

duration of 6 months or less.” 42 U.S.C, § 12102(3)(B).

Here, it is undisputed that Plaintiff’s alleged condition was “transitory” within the meaning

of the ADA because it did not persist for six months. See id. It is also undisputed that after fainting

during a physical training exercise at the Camden County Police Academy (“Academy”), Plaintiff

was taken to the hospital where he was diagnosed by emergency room physicians with “heat

syncope, initial encounter, acute kidney injury (“AKT”), and dehydration.” (SUMF 31-32.)

Plaintiff was not admitted to the hospital for this condition, but discharged eight (8) hours later

with a note from Dr, Alan Lucerna indicating “he may return to work on 08/16/2021.” Ud. J 33.)

Plaintiff’s discharge paperwork advised him to seek a follow-up consultation with two

specialists—a nephrologist and a cardiologist. (/d. 34.) Medical notes from Plaintiff's follow-up

13

visit to The Heart House on August 16, 2021 state Plaintiff “follows up today after being

discharged from the hospital “for what sounds like acute dehydration followed by heat exhaustion

and probable early heatstroke symptoms.” (id. § 34.) Medical notes from Plaintiff’s renal

consultation on August 20, 2021 indicate that Plaintiff experienced an episode of syncope while

training at the academy. (/d. | 42.) The same day, Plaintiff’s provider cleared him to return to work

from a renal standpoint without restrictions, noting Plaintiff “has made a full recovery from his

AKI, he is cleared to go back to work from a renal standpoint.” (/d. {J 43-44.)

Notably, in Plaintiff’s related workers’ compensation action against Defendant, Plaintiff

was evaluated by Dr. Goldstein, who issued a permanency report on behalf of Defendant. (/d.

95.) Dr. Goldstein’s report noted that Plaintiff “was able to return to full-duty work at his previous

jobs and continues to work in this capacity. He works 40 hours a week at one job and 12-14 hours

in the other job, He does not have any work accommodations and does not feel he needs any.” Jd.

The report further opined that “in addition to working 60 hours a week without any work

accommodations, he exercises multiple times a week . . . There is nothing that he needs to do or

feels that he should be able to do that he cannot do.” Ud. § 96.) Accordingly, Dr. Goldstein

concluded that Plaintiff had “what is basically described as an incident,” “was dehydrated,” and

“has no long-term ill-effect or permanency reasonably attributable to the 08/09/2021 incident.”

Ud. 97-98.)

Plaintiff has not—and cannot—identify any countervailing record evidence that supports

his claim that he was “substantially limited” in performing one or more major life activities as a

result of the incident. See 42 U.S.C. § 12102(1)(A). “At summary judgment, a plaintiff cannot rely

on unsupported allegations but must go beyond pleadings and provide some evidence that would

show that there exists a genuine issue for trial.” Jones v. United Parcel Serv, 214 F.3d 402, 407

14

(3d Cir. 2000) (applying collateral estoppel to bar the employee from challenging factual finding

in workers’ compensation proceeding that he fully recovered from his work-related injury and

affirming grant of summary judgment on the basis that the plaintiff was not disabled within the

meaning of the ADA). Moreover, Plaintiff concedes that if the Court finds that he was not disabled

pursuant to § 12102(1)(A), “then his claim for record of impairment must also fail.” (PL’s Opp.

Br, at 11); see § 12102(1)(B).

This leaves only Plaintiff’s “regarded as” claim. As previously noted, the ADA excludes

“impairments that are transitory and minor.” 29 C.F.R. § 1630,15(; see Eshleman, 2020 WL

2781300 at *4-5. Here, ail the medical evidence of record demonstrates that Plaintiff’s brief, one-

time bout of dehydration, heat syncope, and acute kidney injury were both transitory and minox.

Plaintiff does not offer any evidence that Defendant believed Plaintiff’s brief medical episode

impaired his ability to perform any major life activities.

Accordingly, the Court finds that no reasonable juror could conclude that Plaintiff was

“regarded as” disabled because his condition was both “transitory and minor.” See 29 CER. §

1630.15(). For these reasons alone, Defendant is entitled to summary judgment as a matter of law

with respect to Plaintiff's discrimination claim.

it. Even H Plaintiff Were Able To Establish A Disability, Plaintiff Fails To

Show That He Is A “Qualified Individual” Under The ADA,

Even if this Court agreed with Plaintiff and determined that there was a genuine issue of

material fact as to whether he was disabled within the meaning of the ADA, Plaintiff cannot

establish that he was qualified to perform the essential functions of his job with or without

reasonable accommodations by Defendant.

A “qualified individual” under the ADA is defined as one who “with or without reasonable

accommodation, can perform the essential functions of the employment position that such

15

individual holds or desires.” 42 U.S.C. § 12111(8). The burden is on a plaintiff to show that he is

a “qualified individual.” Buskirk v. Apollo Metals, 307 F.3d 160, 168 Gd Cir. 2002). In order to

determine whether someone is a qualified, the Third Circuit uses a two-part test. Gaul Lucent

Tech,, 134 F.3d 576, 580 Gd Cir. 1998), First, a court must consider whether “the individual

satisfies the prerequisites for the position, such as possessing the appropriate educational

background, employment experience, skills, licenses, etc.” fe, Second, the court must consider

“whether or not the individual can perform the essential functions of the position held or desired,

with or without reasonable accommodation.” /d. “The determination of whether an individual with

a disability is qualified is made at the time of the adverse employment decision.” Jd; see also

Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563 (7th Cir. 1996).

“Whether a job duty is an ‘essential function’ turns on whether it is ‘fundamental’ to the

employment position.” Turner vy. Hershey Chocolate U.S., 440 F.3d 604, 612 (3d Cir. 2006) (citing

29 CER. § 1630.2(n)(1)). “A job function may be considered essential for any of several reasons,

including, but not limited to,” the following:

(i) The function may be essential because the reason the position

exists is to perform that function;

(ii) The function may be essential because of the limited number of

employees available among whom the performance of that job

fumction can be distributed; and/or

(iii) The function may be highly specialized so that the incumbent

in the position is hired for his or her expertise or ability to perform

the particular function.

Turner, 440 F.3d at 612 (quoting 29 C.P.R. § 1630.2(n)(2)), “Evidence of whether a

particular function is essential includes, but is not limited to:

(4) The employer's judgment as to which functions are essential;

(ii) Written job descriptions prepared before advertising or

interviewing applicants for the job;

(iii) The amount of time spent on the job performing the function;

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(iv) The consequences of not requiring the incumbent to perform the

function;

(v) The terms of a collective bargaining agreement;

(vi) The work experience of past incumbents in the job; and/or

(vii) The current work experience of incumbents in similar jobs.

29 CER. § 1630.2(n)(3). In New Jersey, an individual is required to possess an NJPTC

certification for the Basic Training Course for Police Officers (“BCPO”) from an NJPTC-certified

New Jersey Police Academy to be eligible for service as a police officer. See N.J.A.C. § 17:4-2.4.

Here, Plaintiff was not a “qualified individual” for the position he desired as a New Jersey

police officer because he did not possess the NJPTC certification required as a seminal condition

of his employment. See ie. It is undisputed that Plaintiff was informed numerous times—during

the hiring process, onboarding, in his offer of employment, FOP agreement, the job description of

the position, and following his fainting spell-—-that his employment was conditioned on obtaining

the required training certification. (SUMF {J 7-8, 11.) Thus, Plaintiff was not qualified to perform

the essential functions of a New Jersey police officer at the time of the alleged adverse employment

action, See N.LA.C. § 17:4-2.4,

Plaintiff argues that even if he was not qualified to serve as a full time police officer when

the alleged adverse decision occurred, he was qualified to remain a police recruit after his

resignation from the Academy because recruits are hired prior to attending it, based only on

“passing written and physical fitness examinations, a background check, being interviewed, and

undergoing a psychological evaluation to determine whether the applicant is qualified for the

position.” (P1.’s Opp. Br. at 14 (citing SUMF 4 4.)) Plaintiff contends that a jury could find that he

was able to perform the essential functions of his job and meet the condition of obtaining NJPTC

certification “with an accommodation of time to heal” and permit him to restart his training with

the next Academy class in time to obtain his NJPTC certification within twelve months. (/d. 4 15.)

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It is undisputed that on the date of the alleged adverse employment action—August 24,

2021—Plaintiff did not meet the requirement for the position of police officer and thus was not

qualified. (SUMF 81.) By that date, Plaintiff had not been cleared from a cardiac standpoint to

return to work. (See id. JJ 31-35, 40-48.) Defendant did not know at that time whether Plaintiff

would be cleared to return to the Academy at all. (See id. 4 51.) Plaintiff himself testified that he

was not physically capable of attending the Academy at that time. (7d. $48.)

Moreover, even if Plaintiff were medicaily cleared by his doctors and felt he was physically

capable of returning to his training, he would still be required to reapply for the next Academy,

pass new physical and psychological evaluations, and receive clearance from the Academy to

return, (See Response to Plaintiff's Counterstatement of Material Facts (““RCSMF”) J £87.) And it

was the Academy, not Defendant, that had the sole ability to make such determinations. Plaintiff

argues that other recruits were not terminated by Defendant pending their recovery from minor

training injuries, however, those recruits remained enrolled in the Academy, did not miss more

than ten days of Academy training, and did not resign from the Academy as Plaintiff did here.?

(CSUME 4§ 190-191.) Thus, in effect, Plaintiff sought an accommodation from Defendant of

indefinite or indeterminate leave to complete the Academy, The Third Circuit has held that a

request for ieave “for an indefinite and open-ended period of time .. . does not constitute a

reasonable accommodation.” Fogleman v. Greater Hazleton Health All., 122 F. App’x 581, 586

(3d Cir. 2004); see also Shafnisky v. Bell Atlantic, Inc., 2002 WL 31513551, *11 (E.D. Pa. Nov. 5,

2002) (Open-ended disability leave is not a reasonable accommodation.”).

> Critically, when faced with determining how or if to continue attending the Academy, Plaintiff was advised his

dismissal from the Academy would bar him from attending in the future, whereas a resignation would leave open the

opportunity to reapply for the Academy. (CSUMF 68.) The undisputed record reflects that Plaintiff never reapplied

for the Academy following his resignation, thereby underscoring his lack of qualifications for the position. (See SUMF

491; RSUMF § 91,)

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Furthermore, contrary to Plaintiff’s assertions, Defendant was not required to afford him

the opportunity to remain on Defendant’s payrolls without his NJPTC certification in a “light duty”

capacity pending his completion of the Academy or to seek a waiver from Academy training on

his behalf. (See Pl.’s Opp. Br. at 15-18.) It is well settled that an employer is not required to create

a light duty position or a new position, or remove an essential function of a position, as an

accommodation. Skerski v. Time Warner Cable Co., 257 F.3d 273, 285, n.4 (3d Cir. 2001). While

Plaintiff insists that light duty roles existed for recruits, the examples Plaintiff cites involve recruits

who remained enrolled in the Academy-—-which is undisputedly the seminal function of being a

recruit. (SSUMF ff 7-8, 11; CSUME 190-191); see N.J.A.C. § 17:4-2.4.

Accordingly, the Court finds that no reasonable juror could conclude that Plaintiff can

satisfy his burden of proving that he was a “qualified individual” at the time of Plaintiff’s alleged

adverse employment action. See Buskirk, 307 F.3d at 168. For all of these reasons, Plaintiff fails

to establish a prima facie case for disability discrimination and, accordingly, this Court grants

Defendant’s motion for summary judgment on Plaintiff’s discrimination claims as a matter of law.

iii, Whether Plaintiff Suffered An Adverse Employment Action Based On

His Alleged Disability.

Defendant aiso argues that it did not subject Plaintiff fo an adverse employment action

because Plaintiff resigned from the Academy of his own volitation, which Defendant construed as

a resignation from his employment with Defendant because Plaintiff knew that employment was

contingent on his completion of the Academy. (MSJ Br. at 26-27; see SUMF { 81.) Yet Defendant

maintains throughout its brief that Defendant and the Academy are distinct entities. (MSJ Br. at

23-24, 28-29.) While Defendant notified Plaintiff that it construed his resignation from the

Academy as a resignation from Defendant, the record reflects that Plaintiffresigned only from the

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Academy. (CSUME { 74.) Plaintiff maintains that he did not intend to resign from Defendant and

intended to seek an Academy waiver or light duty with Defendant after his resignation.

Accordingly, there is a genuine dispute of material fact as to whether Defendant indeed

subjected Plaintiff to an adverse employment action by construing his resignation from the

Academy as a resignation from Defendant, and the Court need not resolve that issue at this stage

because Defendant is entitled to summary judgment on other grounds stated in this Opinion.

iv. Defendant Had A_ Legitimate, Non-Discriminatory Reason For

Terminating Plaintiff and Plaintiff Cannot Establish Pretext,

Even if Plaintiff could establish a prima facie case of discrimination, he cannot establish

that he suffered an adverse employment consequence because of a disability. Defendant has

advanced a legitimate, non-discriminatory reason for terminating Plaintiff—his absences from the

Academy and subsequent resignation, Plaintiff has adduced no record evidence suggesting that

Defendant terminated Plaintiff because it believed that he had a disability. Accordingly, no

reasonable juror could find that Plaintiff can demonstrate the legitimate reason for his alleged

termination was pretextual.

b. Plaintiff Cannot Establish a Failure to Accommodate,

“The failure to accommodate is one of two distinct categories of disability discrimination

claims[.]” Rich v. State, 294 F. Supp. 3d 266, 278 (D.N.J. 2018). To establish a prima facie claim

of failure to accommodate, a plaintiff must establish that: (1) the plaintiff was disabled within the

meaning of the ADA; (2) the plaintiff was qualified to perform the essential functions of the

position, with or without accommodation; (3) the plaintiff suffered an adverse employment action

because of his disability; and (4) the defendant sought another to perform the same work after

Plaintiff had been removed from the position, Marsh v GGB, LLC, 455 F. Supp. 3d 113, 125

(D.N.J. 2020) (internal citations omitted). The failure to reasonably accommodate a qualified

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disabled employee constitutes an adverse employment action for purposes of the ADA. See

Williams v. Phila. Hous. Auth. Police Dept, 380 F.3d 751, 771 (3d Cir. 2004). Summary judgment

is appropriate where the plaintiff fails to raise a genuine issue of material fact as to one or more

elements of the plaintiff's prima facie case. Krouse v. Am. Sterilizer Co., 126 F.3d 494, 501 Gd

Cir, 1997).

The ADA’s regulations provide that: “To determine the appropriate reasonable

accommodation it may be necessary for the [employer] to initiate an informal, interactive process

with the [employee] in need of accommodation. This process should identify the precise limitations

resulting from the disability and the potential reasonable accommodations that could overcome

those limitations,” 29 C.F.R. § 1630.2(0)(3). The EEOC’s interpretive guidelines further provide

that: “Once a qualified individual with a disability has requested provision of a reasonable

acconunodation, the employer must make a reasonable effort to determine the appropriate

accommodation. The appropriate reasonable accommodation is best determined through a flexible,

interactive process that involves both the employer and the [employee] with a disability.” 29 C.LE.R.

Pt. 1630, App. § 1630.9 at 359,

Here, Plaintiff cannot establish a prima facie case for failure to accommodate because, as

discussed in Section IV(a) supra, no reasonable juror could find that Plaintiff was disabled or

qualified to perform the essential functions of his position. The Court further notes that the

undisputed record evidence shows that Defendant engaged with Plaintiff's request for an

accommodation in the form of a waiver from the Academy to obtain his NJPTC certification,

researched the waiver process, and determined that the New Jersey Police Training Commission

exclusively determines whether an individual may be granted a waiver from attending ali or a

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portion of the Academy. (SUMF J 14.) Defendant also determined that Plaintiff was not eligible

to serve as a police officer without his NJPTC certification, See N.J.A.C, § 17:4-2.4.

Thus, the record reflects that Defendant engaged in an interactive process with Plaintiff

and determined that no reasonable accommodation was available. (SUMF 17, 67.) For these

reasons, Plaintiff’s failure to accommodate claim fails.

c. Plaintiff Cannot Establish a Retaliation Claim.

ADA. retaliation claims are analyzed under the familiar McDonnell Douglas burden-

shifting framework. MWells v. Retinovitreous Assocs., Ltd., 702 F. App’x 33, 35 (3d Cir. 2017), To

establish a prima facie case of retaliation, a plaintiff must demonstrate that: (1) he engaged in a

protected activity; (2) he “subsequently or contemporaneously suffered an adverse employment

action,” and (3) there is “a causal link between the protected activity and the adverse action.” Jd.

at n.14. If the plaintiff establishes a prima facie case of retaliation, the defendant must articulate a

legitimate, nondiscriminatory reason for the adverse employment action against the plaintiff. /d.

at 36. “[I]f the defendant does so, the burden then returns to the plaintiff to prove by a

preponderance of the evidence that the defendant’s proffered reason is a pretext for retaliation.”

id. “Our experience is that most cases turn on the third stage, i.e, can the plaintiff establish

pretext.” Jones » Sch. Dist. of Philadelphia, 198 F.3d 403, 410 (3d Cir. 1999)

Here, even assuming that Plaintiff could make out a prima facie case of retaliation, he has

failed to demonstrate that Defendant’s reasons for the adverse employment action were pretextual.

To establish pretext, Plaintiff must either: (1) discredit Defendant’s proffered reasons, either

directly or circumstantially; or (2) adduce evidence, whether direct of circumstantial, “that

discrimination was more likely than not a motivating or determinative cause of the adverse

employment action.” Jd. (quoting Fuentes v. Perskie, 32 F.3d 759, 764 3d Cir, 1994)). Plaintiff

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must demonstrate “not merely that the employer’s proffered reason was wrong, but that it was so

plainly wrong that it cannot have been the employer’s real reason.”

As noted throughout this Opinion, Plaintiff could not serve as a New Jersey police officer

without obtaining an NJPTC certification, which was an express condition of his employment with

Defendant. See N.J.A.C. § 17:4-2.4, Thus, Defendant had a legitimate, non-discriminatory reason

for the alleged adverse employment action. See Wells, 702 F. App’x at 35. Moreover, robust record

evidence demonstrates that recruits trained in jurisdictions outside of New Jersey are required to

attend Academy training, and the decision to grant a waiver was not Defendant’s to make. (SUMF

14-17, 66-72.) Plaintiffhas presented no countervailing evidence that similarly situated recruits

were permitted to remain on the payroll in a light duty capacity while not enrolled in the Academy

or were granted the broad waiver he requested. (See Response to SUMF (“RSUMF”) J 17; CSUMF

190-191.)

In reviewing the record, the Court concludes that no reasonable juror could find Plaintiff

has demonstrated it is more likely than not that discrimination, rather than Plaintiff’s lack of

qualifications, caused the adverse employment action alleged here, Accordingly, the Court grants

summary judgment in favor of Defendant with respect to Plaintiff’s ADA retaliation claim.

ad. Plaintiff Cannot Establish a Workers’ Compensation Retaliation Claim,

The New Jersey Workers’ Compensation Act states, in pertinent part:

It shall be unlawful for any employer or his duly authorized agent to

discharge or in any other manner discriminate against an employee

as to his employment because such employee has claimed or

attempted to claim workmen’s compensation benefits from such

employer, or because he has testified, or is about to testify, in any

proceeding under the chapter to which this act is a supplement.

N.JLS.A. 34:15-39,.1. To make a prima facie case of retaliation for making a workers’

compensation claim, a plaintiff must prove: “(1) that he or she made or attempted to make a claim

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for workers’ compensation; and (2) that he or she was discharged in retaliation for making that

claim.” Cerracchio v. Alden Leeds, 223 N.J. Super. 435, 442-43 (App. Div. 1988). Courts require

a causal nexus between the discharge and the workers’ compensation claim, See Carter v. AFG

Indus. Ine., 344 Super, 549, 557 (App. Div. 2001). “New Jersey courts have consistently held

that workers’ compensation is not a protected leave and have specifically rejected the argument

that an ‘employer had a duty to hold [employees with workers’ compensation claims] job open

until [they] were able to return to work.’” Wraith v. Wayfair, Inc., No. CV 20-6054, 2023 WL

4488045, at *7 (D.NJ. June 12, 2023), aff’d, No. 23-2400, 2024 WL 4144065 (3d Cir. Sept. 11,

2024).

Here, Plaintiff sets forth no facts demonstrating that he was “discharged in retaliation for

making” a workmen’s compensation claim. Cerracchio, 223 N.J. Super. at 442-43: see Hejda vy.

Bell Container Corp., 450 N.J. Super. 173, 192 (App. Div. 2017). Indeed, it is undisputed that

Defendant worked with Plaintiff to ensure that he received benefits. (SUMF □□□ 36-48, 64-66); see

Wraith, 2024 WL 4144065, at *2 (affirming grant of summary judgment against the plaintiff’s

retaliation claim where the employer assisted him in filmg a workmen’s compensation claim).

Further belying Plaintiffs retaliation claim, Defendant did not seek to recoup workmen’s

compensation overpayments made to Plaintiff. Ud, 7 66, n.9.) Thus, the record lacks the necessary

evidence that Plaintiff’s filing of a workmen’s compensation claim “entered into the decision” to

terminate him. See Galante v. Sandoz, Inc., 192 N.J. Super. 403 (Law. Div, 1983), aff'd, 196 N.J.

Super. 568 (App. Div. 1984),

Accordingly, the Court will grant Defendant’s Motion for Summary Judgment with respect

to Plaintiff's workers’ compensation retaliation claim.

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V. CONCLUSION

For all the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No. 55)

is GRANTED. An Order consistent with this Opinion shall follow.

A oN

Dated: June 30, 2025 ‘ ely.

4 Nat N ci

JAREN M. WILLIAMS

UNITED STATES DISTRICT JUDGE

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