# Santiago v. City of Vineland

> District Court, D. New Jersey · August 2, 2000 · 107 F. Supp. 2d 512

URL: https://www.frixlaw.com/law-library/cases/2511242

## Case

- **Full name:** Luis A. SANTIAGO, Plaintiff, v. CITY OF VINELAND, Et Al., Defendants
- **Court:** District Court, D. New Jersey
- **Decided:** August 2, 2000
- **Citations:** 107 F. Supp. 2d 512; 2000 U.S. Dist. LEXIS 10772; 2000 WL 1056438
- **Precedential status:** Published
- **Opinion:** Opinion by Orlofsky
- **Judges:** Orlofsky
- **Cited by:** 43 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2511242

## How later opinions describe it (automated extraction)

- finding the plaintiffs contract claim preempted by his NJLAD claim and further observing that by alleging that an implied contract existed.by virtue of the defendant’s non-discrimination policy, the plaintiff appeared to be avoiding a common law wrongful discharge claim throug…
- concluding that plaintiffs supervisors could be held liable as aiders and abettors where the record contained evidence that defendants actively engaged in discriminatory conduct toward plaintiff
- noting that “the issue of punitive damages is [typically] a fact question which should be decided by a jury”

## Opinion text

OPINION
ORLOFSKY, District Judge.
Table of Contents
I. BACKGROUND.520
II. LEGAL STANDARD GOVERNING A MOTION FOR SUMMARY
JUDGMENT.526
III. DISCUSSION.527
A. Failure to Exhaust Administrative Remedies: Title VII.527
B. Santiago’s Discrimination Claims on Grounds of Race, Disability and Retaliation.529
1.
Race Discrimination under 4, 2 U.S.C. §§ 1981 and 1988 and the New Jersey Law Against Discrimination
(“NJLAD”).531
a. The Prima Facie Case Analysis: Was Santiago “Qualified?”.532
b. The Defendants’Legitimate, Nondiscriminatory Reasons.533
c. Pretext for Discrimination.534
i. The Narcotics Allegations .534
ii. New Jersey’s Rule of Three.536
iii. Robert Carr.537
iv. The Negative Recommendation .537
d. Liability of the Defendants.538
i. Race Discrimination in violation of 42 U.S.C. §§ 1981 and 1983 .538
(a) The City of Vineland.538
(b) The Individual Defendants.540
(c) Defendants Romano and Gallo.542
ii. Race Discrimination in violation of the NJLAD.543
e. Qualified Immunity.545
2.
Disability Discrimination under the Americans with Disabilities Act and Handicap Discrimination under the New Jersey Law Against Discrimination (“NJLAD”)
.546
3. Retaliation.550
a. Individual Defendants Brunetta, Frense, Letizia and D’Augostine.551
*519
b. The City of Vineland and Individual Defendants Romano and
Gallo.
42 U.S.C. §§ 1981A, 1982,1983,1985,1986 and 1988 . Q
1.
Violation of Due Process of Law
.
a. The Alleged Failure to Provide a PreDeprivation Hearing.
b. Municipal and Individual Liability .
c. Qualified Immunity.
2.
Conspiracy, pursuant to U.S.C. §
1985(1).
3. Claims.
False Arrest .
Malicious Prosecution .
Common Law Breach of Contract and Intentional Interference with
Contractual Relationship. ox 05 05
The Tort of “Outrage”. Santiago’s Claims for Punitive Damages . Cn ox 05 05 CO 00 MO
1.
The City of
Vineland.
Ox
Ci O
2.
The Individual
Defendants. Ox Ci O
IV. CONCLUSION. .570
In this employment discrimination suit, this Court is called upon to determine, among other things, whether undesirable personality traits constitute an “impairment” under the Americans with Disabilities Act and whether a municipal special law enforcement officer who, by State statute, can be discharged only “for cause after an adequate hearing” is entitled to a pre-termination hearing when he is accused of selling illegal drugs at some point in the past. Plaintiff Luis A. Santiago (“Santiago”), a former special law enforcement officer of the City of Vineland, has filed an Amended Complaint alleging that the City, its former mayor and various police officials violated his federal and constitutional rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e,
et seq.
(Counts One and Six), the Americans with Disabilities Act, 42 U.S.C. § 12111 ,
et seq.
(Counts Four and Six), and 42 U.S.C. §§ 1981 , 1983, 1985, 1986, 1988 (Count Three).
See
Am. Compl. at ¶¶ 43-46, 51-61, 65-67. In addition, Santiago alleges discrimination and retaliation claims under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1,
et seq.
(Counts Two, Four and Six), as well as the common law claims of false arrest (Count Five), malicious prosecution (Count Five), breach of contract (Count Seven), intentional interference with his contractual relationship (Count Eight), and the tort of “outrage” (Count Nine).
See id.
at ¶¶ 47-50, 56-74 .
Before this Court are two motions for summary judgment, pursuant to Federal Rule of Civil Procedure 56(c), filed by the two sets of defendants in this case, the City of Vineland, Joseph Romano and John P. Gallo and by Mario Brunetta, Paul Leti-zia, John Fresne and Dennis D’Augostine (collectively, “Defendants”).
See
Notice of Motion for Summ. J. by Defs., City of Vineland, Joseph Romano and John P. Gallo at 1 (filed Aug. 6, 1999); Notice of Motion for Summ. J. by Defs., Mario Brunetta, Paul Letizia, John Fresne and Sennis [sic] D’Augostine at 1 (filed Aug. 6, 1999). Because both motions for summary judgment rely on substantially similar grounds, and because Santiago has submitted only one brief in opposition to the motions for summary judgment, I shall consider the merits of the motions jointly, where appropriate. This Court exercises jurisdiction pursuant to 28 U.S.C. § 1331 ,
1
1343,
2
and 1367.
3
For the reasons set
*520
forth below, I shall grant in part and deny in part the Defendants’ motions for summary judgment.
I. BACKGROUND
The issues in this case are presented within the framework of three overarching factual events: (1) Santiago’s discharge from his position as a Vineland special law enforcement officer; (2) the City of Vine-land’s failure to hire Santiago as a police officer; and (3) Santiago’s subsequent arrest for unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5(b) (West Supp.2000).
On September 3, 1992, Plaintiff, Luis A. Santiago, who is Hispanic, applied for the position of special law enforcement officer in the City of Vineland.
See
Pl.’s App. to Br. in Opp. to Motion for Summ. J. (“Pl.’s Ex.”) Vol. I (Vineland Special Police Applicant Investigation) at 1. As part of the application process, Dr. Donald Babcock of the Vineland Guidance Center evaluated Santiago, found him “psychologically fit,” and recommended him for the position.
See
App. to Br. in Supp. of Mot. for Summ. J. by Defs. City of Vineland, Joseph Romano and John P. Gallo (“Defs.’ Ex.”) 2 at 7 (referencing Jan. 18, 1993 Babcock evaluation). On April 26, 1993, Luis A. Santiago was appointed as a special law enforcement officer of the City of Vineland.
See
Pl.’s Ex. Vol. I (Oath of Office, dated April 26, 1993). The post is for a term not to exceed one year and the appointment “may be revoked by the local unit for cause after adequate hearing.” N.J.S.A. 40A:14-146.13 (West 1993). Santiago was reappointed to the position three separate times.
See
Pl.’s Ex. Vol. 1 (Oaths of Office, dated April 25, 1994, May 22, 1995, and Jan. 29.1996).
During his tenure as a special law enforcement officer, Santiago applied for a position with the Cumberland County Sheriffs Department, for which he underwent another psychological evaluation with Dr. Babcock.
See
Defs.’ Ex. 32 at 1. On July 20, 1995, Dr. Babcock reported his psychological evaluation of Santiago, which included the following:
Mr. Santiago was married in June[,] 1992 and separated in May, 1994. He claims financial and communication problems in the marriage which had minor domestic violence. He denied hitting but admitted grabbing. He felt she also had a temper. There will not be a reconciliation. There have been reports that he is physically abusive to his wife.
Id.
at 2 . In addition, Dr. Babcock reported that:
[Tjhere is a real disturbing influence in his emotions at this time. This report compared with an earlier one conducted with him when he was applying for a
*521
position in January[,] 1993 as a Class I officer for the Vineland Police Department — comparing the two results it can be seen that the break up of the marriage and perhaps other factors have contributed to a real change in his overall personality and emotional performance .... There is a lot of ambivalence in the handling of his aggression. There are times that he appears to be overly charming and wants everybody to like him and there are other times that he can act out emotionally, maybe even violently.... To all of this it is felt that he has a personality structure which would be detrimental to a law enforcement agency, to the general public and indeed himself. It is felt that the big change in him has made him unsuitable and unfit for carrying out the duties of a police officer at this time. Perhaps after his situation is cleared up, in his marital situation, he may be in a much better emotional state than he is at this time, but certainly at this writing, he would not be considered suitable for a police department.
Id.
at 3-4 . Dr. Babcock did not recommend Santiago for the position with the Cumberland County Sheriffs Department because, according to Dr. Babcock’s report, “Santiago is not considered emotionally fit to carry out the duties of a law enforcement officer.”
Id.
at 4 .
A week after the date of the report, Santiago applied to the Vineland Police Department for the position of police officer.
See
Pl.’s Ex. Vol. I (Application, filed July 27, 1995). He placed twelfth on the New Jersey Department of Personnel’s August 25,1995 “Certifications of Eligibles for Appointment” list (“Eligibles List”).
See
Defs.’ Ex. 11 at 2. On August 30, 1995, the Vineland Police Department recommended for hire four individuals, other than Santiago, the last of whom was ranked eleventh on the Eligibles List.
See
Defs.’ Ex. 12. As the twelfth candidate on the list, Santiago was not considered for the August 30,1995 hiring.
Consistent with standard application procedure within the Police Department, Sergeant John A. Fresne of the Vineland Police Department investigated Santiago’s background and on September 15,1995, he filed his report with the Department.
See
Defs.’ Ex. 2. According to the report, it was Sergeant Fresne’s opinion and recommendation that:
The applicant [Santiago] has had several disciplinary actions while he has been employed by this department. These actions include excessive speed in a police vehicle, sleeping while on duty, and being discourteous to a police officer and city officials of West Cape May. Although he has only received one letter of reprimand for sleeping while on duty, these allegations are indications that the applicant is immature and that there will be disciplinary problems.
The applicant has been attempting to gain employment from several different agencies with the latest being the Cumberland County Sheriffs Department. The applicant was sent for a psychological evaluation and it was determined that he is not psychologically fit to be a police officer and he was therefore turned down for the position.
Considering all of the above presented facts, I cannot recommend the applicant for the position of police officer. If in time, the applicant matures and he is reevaluated and determined to be psychologically fit, I would reconsider my opinion and recommendation.
Id.
at 14 .
In early 1996, Santiago placed third on the New Jersey Department of Personnel’s January 22, 1996 Eligibles List.
See
Defs.’ Ex. 13. According to the deposition testimony of Sergeant Fresne, two days following the date of the Eligibles List, on January 24, 1996, Santiago was interviewed for the position of Vineland police officer.
See
Defs.’ Ex. 37 (John Fresne Dep.) at 89. On January 25,1996, Chief of Police Mario R. Brunetta, Jr. recommended for hire four individuals other
*522
than Santiago.
See
Defs.’ Ex. 14 at 1. A subsequent letter by Brunetta explained that Santiago, among others, was not considered for appointment because he had failed to respond to a certification notice signaling his interest and intent to remain eligible for hire.
See
Defs.’ Ex. 15 at 1. In his deposition, Santiago testified that he had indeed failed to respond to the notice for the January, 1996 hiring.
See
Defs.’ Ex. 35 at 41-43.
According to Santiago, at some point in January, 1996, a detective from the police department brought Santiago a cartoon drawing that had been posted at the Vine-land Police Department.
See
Pl.’s Br. at ¶ 62. The cartoon is entitled “A Portrait of Spec. Santiago (Animal Control Lover)” and depicts Santiago as obese, with sinister eyes and a long mustache.
See
Defs.’ Ex. 28. In the cartoon, the artist depicts Santiago as wearing bunny slippers, which the drawer calls “Roadkill-Takes His Work Home” and carrying both a “Child Size [sic] Radio For Those ‘Wanna Be Cops Moments’ ” and a forked object, referred to as “Unauthorized Equip. For Dangerous Attacks from Killer Squirrels.”
Id.
In addition, the cartoonist points to dark circles or bags under the subject’s eyes, noting the “Hard Strenuous Nights Studying For His Psych” and, at the top of the drawing, the cartoonist quips, “Good Luck on Your Psych!!!”
Id.
Santiago testified that, because there was no reference to his race in the cartoon, he did not interpret its posting to be harassment on the basis of his race.
See
Pl.’s Ex. Vol. II (Santiago 12/30/1998 Dep.) at 135. As an Hispanic individual, however, he was offended by the cartoon.
See id.
at 136 . Santiago testified that he did not report the cartoon to anyone within the Vineland Police Department.
See
Defs.’ Ex. 52 (Santiago 12/30/1998 Dep. at 71).
A few weeks later, on February 14, 1996, Santiago was discharged from his job as a special law enforcement officer. The reasons for his discharge and the manner in which it occurred are disputed. According to the Defendants, in November, 1995, Sergeant Dennis D’Augostine and a colleague not a party to this suit met with a confidential informant, named, for purposes of this case, “Manny.” “Manny” told the police officers that approximately one and one-half years before, in 1994, Santiago and his twin brother, Angel, who was also a special law enforcement officer for the City of Vineland, were involved in the drug operation of Freddy Oquendo, a person known to the detectives to be involved with drugs.
See
Defs.’ Ex. 4 at 1-2. According to the intelligence report written by D’Augostine, “Manny” was a reliable informant, whose information had led to seventeen previous narcotic-related arrests.
See id.
at 1 . According to the report, “Manny” stated that “he/she personally observed one of the Santiago brothers in possession of cocaine at Tony’s Pizzeria” but that he did not know if either Santiago or his brother, at that point in time, continued to assist Freddy Oquendo in his drug operation.
Id.
at 1-2 .
A few months later, on January 24,1996, the same day Santiago was interviewed for the job of Vineland police officer, D’Augos-tine learned of Santiago’s status as a police officer applicant and, according to the testimony of Sergeant Fresne and Chief Mario Brunetta, he informed both Fresne and Brunetta of the drug-related information he received concerning Santiago.
See
Defs.’ Ex. 37 (John Fresne Dep.) at 48; Defs.’ Ex. 41 (Mario Brunetta, Jr. Dep.) at 67-68. Brunetta testified that he directed D’Augostine to conduct an investigation to determine whether any additional information regarding Santiago’s alleged narcotic involvement was available and to prepare a report.
See
Defs.’ Ex. 41 at 71;
see also
Defs.’ Ex. 8 (Vineland Police Dep’t Memo from Capt. J.A. Martinez to Sgt. D’Augos-tine stating that Chief Brunetta directs D’Augostine to follow-up and attempt to substantiate the information).
According to D’Augostine’s second report, dated February 16, 1996, at some point in the month of February, 1996,
*523
D’Augostine and two other colleagues, not parties to this suit, met again with the confidential informant, “Manny.”
See
Defs.’ Ex. 5 at 1. According to the report, “Manny” told D’Augostine and others that while Santiago was a Vineland special law enforcement officer, he was in possession of cocaine and was present while numerous drug transactions occurred inside Tony’s Pizzeria.
See id.
at 2 . “Manny” reported, moreover, that he heard Santiago request cocaine from Freddy Oquendo and then state, after he received the narcotic, that he would return with the money.
See id.
“Manny” also allegedly stated that on another occasion, outside the Pizzeria, Santiago and “Tony,” the alleged nephew of Freddy Oquendo, were seated in a Tony’s Pizzeria delivery truck when Tony told “Manny” that they were going to deliver cocaine.
See id.
All of the reported events allegedly occurred one and one-half to two years before the date of the report; “Manny” had no current information on Santiago.
See id.
at 1 .
According to the Defendants, on February 14, 1996, after receiving the updated information, Chief Brunetta, believing that Santiago was an “at will” employee, ordered Sergeant Letizia to discharge Santiago from his position as a special law enforcement officer with the City of Vine-land.
See
Defs.’ Ex. 41 at 78. According to the deposition testimony of Sergeant Letizia, he met with Santiago on February 14, 1996 and terminated Santiago’s employment with the City of Vineland because certain “detrimental information” had surfaced regarding Santiago.
See
Defs.’ Ex. 38 (Letizia Dep.) at 25-28. Santiago testified that, although Letizia told him that in the course of the background investigation it had been discovered that Santiago was involved in narcotics activity, Santiago already knew of the allegations, possibly because his brother, Angel Santiago, told him.
See
Defs.’ Ex. 35 (Santiago Sept. 15, 1998 Dep.) at 79-80. According to the deposition testimony of Letizia, he informed Santiago that he was to contact Captain Martinez for further information.
See
Defs.’ Ex. 38 (Letizia Dep.) at 26.
Later that same day, while Santiago stood on a street corner outside the police station, Chief Brunetta approached Santiago to explain the circumstances of Santiago’s discharge.
See
Defs.’ Ex. 35 (Santiago Sept. 15,1998 Dep.) at 87; Defs.’ Ex. 41 (Brunetta Dep.) at 78. In their brief conversation, Brunetta explained that he had made the determination to discharge Santiago based upon the narcotic information provided by Sergeant D’Augostine.
See
Defs.’ Ex. 41 (Brunetta Dep.) at 79. Brun-etta testified that while Santiago told Brunetta that the allegations were not true, Santiago was not afforded a formal hearing on the allegations that he was, at one time, involved in the sale of narcotics.
See id.
at 79, 81 . Brunetta testified that neither he nor any officer at his direction asked Santiago to respond to the allegations against him.
See id.
at 78 .
The following day, Santiago and his brother, Angel, met with Captain Martinez and Sergeant John Fresne regarding the termination, and surreptitiously tape-recorded the meeting. In this meeting, Santiago contends that Captain Martinez specifically stated that he would not “discuss the merit[s]” of the discharge. Pl.’s Br. at 17 (citing Defs.’ Ex; 10 (Transcript of Meeting) at 2).
On February 23, 1996, the New Jersey Department of Personnel sent Santiago a Certification Disposition Notice informing him that his name had been removed from the Eligibles List because he had “failed to respond to the certification notice as required.” Defs.’ Ex. 16 at 1. In response, Santiago sent a letter of appeal, seeking reinstatement to the Eligibles List for the position of Vineland Police Officer.
See
Defs.’ Ex. 17 at 1. In the letter, Santiago stated that:
I have received two notices of certification. The first one being August of 1995 at which time I responded to the notice stating that I was very much interested in the position. I then received a second
*524
notice on [sic] January of 1996 for the same position, at which time I did not feel it was necessary to send a second letter of interest.
Id.
Approximately one month later, on April 8, 1996, Santiago filed a Charge of Discrimination with the Equal Employment Opportunity Commission, claiming that he had been discriminated against by the Vineland Police Department and Chief Mario Brunetta[, Jr.], solely on the basis of disability.
See
Defs.’ Ex. 21 at 1. Specifically, Santiago claimed that the Vineland Police Department and Brunetta told him that he was “terminated and refused hire as a Police Officer because of an allegation of drug activity made by Respondent’s Narcotic Unit.”
Id.
Moreover, Santiago alleged that he was unlawfully discriminated against “based on a Perceived Disability” and “denies that he was ever involved in any drug activity and further alleges that despite his diligence and hard work he was terminated from same and refused hire as a Police Officer.”
Id.
That same week, Santiago was restored to the Eligibles List for the police officer position.
See
Defs.’ Ex. 18 (dated April 15, 1996) at 1. On April 22, 1996, Santiago wrote to Mayor Joseph Romano, stating that he had been discharged from his position as a special law enforcement and animal control officer “without due cause” and seeking the Mayor’s assistance in receiving information from the Vineland Police Department.
See
Defs.’ Ex. 29 (Letter) at 1. Santiago testified that he sent a similar letter to John Gallo, the Director of Public Safety for the City of Vineland.
See
Pl.’s Ex. Vol I (Santiago 9/15/1998 Dep.) at 15.
According to the Defendants, approximately four months later, on August 1, 1996, a citizen, Robert Carr, who resided at 129 W. Linden Street in Clayton, New Jersey, reported to Sergeant John Fresne that he was aware that Santiago had applied to become a Vineland Police Officer and that Santiago h,ad sold marijuana to students while in high school.
See
Defs.’ Ex. 6 (Vineland Intelligence Report) at 1;
see also
Defs.’ Ex. 37 (Fresne Dep.) at 75. According to the report filed by Fresne, he confirmed that Carr worked with Santiago at the Sears, Roebuck and Co. (“Sears”), which was, at that time, Santiago’s place of employment, and that Carr attended Vine-land Senior High School with Santiago.
See
Defs.’ Ex. 6 at 1;
see also
Defs.’ Ex. 37 at 76. Since the date of the alleged statement, however, Carr has denied that he ever gave information to the police concerning Santiago’s alleged involvement with marijuana while in high school.
See
Carr Aff. at ¶4 (dated July 15, 1999).
On August 1, 1996, Santiago placed second on the Eligibles List for the position of police officer of the City of Vineland.
See
Defs.’ Ex. 19 (August 1, 1996 list) at 1. On August 13, 1996, Rudolph A. Luisi, the Director of Police, recommended five individuals other than Santiago for employment as Vineland police officers.
See
Defs.’ Ex. 20 (Letter from Luisi, Director of Vineland Police, to Linda M. Dechen, Business Administrator, dated Aug. 13, 1996). In short, Santiago was bypassed.
The following week, the Vineland Police Department received information from two sources that Santiago was unlawfully carrying a handgun at his job as a security officer at Sears. A citizen, Wanda Wheeler, testified that she called the police department “[b]ecause [she] had a concern that [Santiago] had brought a gun into Sears and he often mentioned about [sic] having guns in the trunk of his car. I’m sorry, but to me that was a concern that an ordinary citizen was carrying around guns.” Defs.’ Ex. 42 (Wheeler Dep.) at 17. Sergeant D’Augostine testified that his second source was a confidential informant who “provided ... information that Luis Santiago was carrying a handgun inside Sears.” Defs. Ex. 39 (D’Augostine Dep.) at 9;
see also
Defs.’ Ex. 7 (police report) at 1. D’Augostine further testified that this confidential informant was “reliable” and “had been used in the past” to make arrests. Defs.’ Ex. 39 at 9.
*525
Aware that Santiago had filed discrimination charges against him and the Vine-land Police Department, D’Augostine testified that he asked Internal Affairs Officer James Elliot to accompany him to Sears to document the event.
See id.
at 25-26 ; see
also
Defs.’ Ex. 40 (Elliot Dep.) at 40-41.
At this point, the record contains two differing versions of the event. Interpreting the facts in the light most favorable to Santiago, what next transpired is as follows. Upon Santiago’s exit from the Sears building, the police advised Santiago that they had received information that he was in possession of a handgun and they immediately informed him of his
Miranda
rights.
See
Defs.’ Ex. 7 (police report) at 2 and
Miranda
form. After Santiago consented to a search of his car, the police found a Glock nine-millimeter handgun in the trunk of the car and ammunition in the passenger compartment.
See id.
at 2-3 and Consent to Search form. While Santiago possessed a valid permit for the purchase of the weapon, he did not have a permit to carry it.
See id.
at 2 and Permit to Purchase a Handgun & Form of Register. After the police determined that he was not taking the gun to a shooting range, a potentially exonerating exception for his failure to have a permit to carry such a weapon, the police transported Santiago to the Vineland police station and charged him with unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5(b).
See id.
at 3 ;
see also
Defs.’ Ex. 40 (Elliot Dep.) at 40. Santiago was released on his own recognizance.
See id.
at 3 . Subsequently, the case was presented to a grand jury, which did not return a true bill.
According to Santiago, the evidence against him was fabricated and/or coerced from witnesses in retaliation for an event that occurred nearly eight years ago, for the purpose of depriving Santiago of his employment.
See
Pl.’s Br. in Opp. to Mot. for Summ. J. at 8. According to Santiago, on September 19, 1992, a white resident of Vineland observed an Hispanic youth vandalizing his property.
See
Pl.’s Ex. Vol. I. (Police Report Exs. to D’Augostine Dep.). A chase ensued, which was joined by two off-duty white police officers.
See id.
According to the reports, the chase and the eventual apprehension of the fleeing youth attracted a crowd of African-American and Hispanic residents.
See id.
At some point, a small riot broke out between the crowd of residents and the white officers and white residents.
See id.
Sergeant D’Augostine was involved in the investigation of the incident.
See
Pl.’s Ex. Vol. I (D’Augostine 2/2/1999 Dep.) at 12. Santiago was a witness to the September 19, 1992 incident and, when questioned by D’Augostine about the events, he claims that he told D’Augostine that he did not want to give a statement.
See
PL’s Ex. Vol. II (Santiago 12/30/1998 Dep.) at 179. This Court notes that, at that time, Santiago already had applied to become a special law enforcement officer of the City of Vineland.
According to Santiago, D’Augostine threatened Santiago that if Santiago did not provide a statement, “[D’Augostine] was going to f — ” him because D’Augos-tine was aware that Santiago aspired to be a Vineland Police Officer.
See id.
at 174-75 . According to Santiago, he did in fact make a statement to the police.
See id.
Santiago testified that although he told the interviewing officers in his taped statement that he had not been coerced, he told two officers that if asked, he would testify that he was forced to provide information to the police.
See id.
at 178-79 . Santiago further testified that he believed that his termination, the failure to hire, and subsequent arrest are, “to some ... extent,” a result of D’Augostine’s threat that “he was going to f — ” Santiago, despite the fact that Santiago had little contact with D’Au-gostine in the years between 1992, the year of the Vineland uprising, and 1996, the year that Santiago was discharged from his position as a special law enforcement officer and bypassed for employment as a Vineland Police Officer.
See
PL’s Ex.
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Vol. II (Santiago 12/20/1998 Dep.) at 175-78.
Following the relevant events in this case, Santiago surreptitiously tape-recorded conversations that he had with various police officers who refer to D’Augostine as a “treacherous motherf-.”
See
Pl.’s Exs. Vol. I (Transcript of Conversation with T. Zatzariny) at 2. Santiago also claims that at the time the Vineland police received the information from “Manny,” the confidential informant, he was under indictment for receiving stolen property, and therefore cannot be regarded as “reliable.”
See
PL’s Exs. Vol. I (Certified Judgment of Conviction, dated March 11, 1996) at 1. “Manny” received a probationary sentence and was ordered to pay restitution.
See
id
4
On October 14, 1997, Santiago filed a Complaint in this Court, and, after seeking and receiving leave to file an amended complaint, filed an Amended Complaint on April 15, 1999.
See
Compl. (filed Oct. 14, 1997); Fourth Am. Scheduling Order (filed April 7, 1999); Am. Compl. (filed April 15, 1999). In his Amended Complaint, filed against the City of Vineland, Joseph Romano, the former Mayor of the City of Vineland, John P. Gallo, the former Director of Public Safety of the City of Vine-land, Mario Brunetta, Jr., the Chief of Police of the City of Vineland, Paul Letizia, John Fresne, and Dennis D’Augostine, sergeants in the Vineland Police Department at all times relevant to the Amended Complaint, and John Does 1-50, Santiago alleges the following claims: (1) race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e,
et seq.
(Count One); (2) race discrimination in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1,
et seq.
(“NJLAD”)(Count Two); (3) deprivation of his rights under the First, Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution, in violation of 42 U.S.C. §§ 1981 , 1983, 1985, 1986 and 1988 (Count Three); (4) discrimination based upon a perceived disability in violation of the Americans with Disabilities Act, 42 U.S.C. § 12111 ,
et seq.,
and the NJLAD (Count Four); (5) false arrest and malicious prosecution (Count Five); (6) retaliation in violation of Title VII, the ADA and the NJLAD (Count Six); (7) breach of contract (Count Seven); (8) intentional interference with his contractual relationship (Count Eight); and (9) the tort of “outrage” (Count Nine). The Defendants have moved for summary judgment of the entire Amended Complaint.
As will be apparent from the analysis set forth below, the task of this Court in deciding these motions for summary judgment was needlessly complicated by the appallingly poor quality of advocacy demonstrated by the attorneys in this case. Given the disarray of the moving and opposing papers submitted by counsel, this Court has struggled mightily to sort out the issues presented. The briefs are poorly written and poorly researched. Legal analysis is frequently absent. Instead, the Court has been presented with conclusory generalizations supported by intellectual laziness. Counsel have disserved their clients’ interests, wasted the Court’s time, and needlessly protracted these proceedings.
II. LEGAL STANDARD GOVERNING A MOTION FOR SUMMARY JUDGMENT
“On a motion for summary judgment, the court must determine whether the evidence shows that ‘there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
*527
of law.’ ”
Abraham v. Raso,
183 F.3d 279, 287 (3d Cir.1999) (citing Fed.R.Civ.P. 56(c)). “Any factual dispute invoked by the nonmoving party to resist summary judgment must be both material in the sense of bearing on an essential element of the plaintiffs claim and genuine in the sense that a reasonable jury could find in favor of the nonmoving party.”
Id.
(citing
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248-251 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986)). “In opposing summary judgment, a party ‘must do more than simply show that there is some metaphysical doubt as to material facts,’
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 , 106 S.Ct. 1348 , 89 L.Ed.2d 538 (1986), but a court should not prevent a case from reaching a jury simply because the court favors one of several reasonable views of the evidence.”
Abraham,
183 F.3d at 287 . “[T]he judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.”
Anderson, 477
U.S. at 249, 106 S.Ct. 2505 ;
see also Abraham,
183 F.3d at 287 . “Thus, while the nonmoving party must present enough evidence to demonstrate a dispute is genuine, all inferences in interpreting the evidence presented by the parties should be drawn in favor of the nonmoving party.”
Abraham,
183 F.3d at 287 (citing
Boyle v. County of Allegheny Pa.,
139 F.3d 386, 393 (3d Cir.1998)). “Cases that turn crucially on the credibility of witnesses’ testimony in particular should not be resolved, on summary judgment.”
Id.
If the nonmoving party fails to oppose the motion by written objection, memorandum, affidavits and other evidence, the Court “will accept as true all material facts set forth by the moving party with appropriate record support.”
Anchorage Assocs. v. Virgin Islands Bd. of Tax Rev.,
922 F.2d 168 , 175 (3d Cir.1990) (quoting
Jaroma v. Massey,
873 F.2d 17, 21 (1st Cir.1989)). Even where the non-moving party has failed to establish a triable issue of fact, summary judgment will not be granted unless “appropriate.” Fed. R.Civ.P. 56(e);
see Anchorage Assocs.,
922 F.2d at 175. Rule 56(e) of the Federal Rules of Civil Procedure requires that the case be evaluated on its merits, with summary judgment being granted for the mov-ants only if they are entitled to a judgment as a matter of law.
See Anchorage
Assocs., 922 F.2d at 175.
III. DISCUSSION
The Defendants raise a myriad of arguments in support of their motions for summary judgment. This Court shall address the two summary judgment motions in the following order: (A) Failure to Exhaust Administrative Remedies; (B) Santiago’s Discrimination Claims on Grounds of Race, Disability and Retaliation; (C) 42 U.S.C. §§ 1981 , 1982, 1983, 1985, 1986 and 1988; (D) False Arrest; (E) Malicious Prosecution; (F) Common Law Breach of Contract and Intentional Interference with Contractual Relationship; (G) The Tort of “Outrage;” and (H) Santiago’s Claims for Punitive Damages.
A. Failure to Exhaust Administrative Remedies: Title YII
In support of their motions for summary judgment, the Defendants first contend that Santiago failed to exhaust his administrative remedies with respect to his claim of race discrimination under Title VII of the Civil Rights Act of 1964. Specifically, the Defendants argue that Santiago failed to submit his claim first to the Equal Employment Opportunity Commission, in violation of 42 U.S.C. § 2000e-5 (1994). Because Santiago failed to oppose the motions for summary judgment on this ground, I shall grant summary judgment, with respect to Santiago’s Title VII race discrimination claim, only if “appropriate.”
See
Fed. R. Civ. P. 56(e).
5
*528
Before instituting an action under Title VII, a plaintiff must timely file his claim with the EEOC and obtain a right to sue letter from the agency.
See
42 U.S.C. § 2000e-5 (1994). Such conditions precedent are statutory, rather than jurisdictional, prerequisites, comparable to a statute of limitations.
See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 ,
102 S.Ct. 1127, 1132 , 71 L.Ed.2d 234 (1982);
Anjelino v. The New York Times Co.,
200 F.3d 73, 87 (3d Cir.1999). Accordingly, claims under Title VII can be dismissed for failure to exhaust such administrative remedies.
See Anjelino,
200 F.3d at 87-88 ;
Knoll v. Springfield Township Sch. Dist.,
699 F.2d 137 , 145 (3d Cir.1983),
vacated on other grounds,
471 U.S. 288 , 105 S.Ct. 2065 , 85 L.Ed.2d 275 (1985).
A plaintiff is excused from exhausting his administrative remedies when “the acts alleged in the subsequent ... suit are fairly within the scope of the prior EEOC complaint, or the investigation arising therefrom.”
Antol v. Perry,
82 F.3d 1291, 1295 (3d Cir.l996)(quoting
Waiters v. Parsons,
729 F.2d 233, 237 (3d Cir.l984)(per curiam));
see also Howze v. Jones & Laughlin Steel Corp.,
750 F.2d 1208, 1212 (3d Cir,1984)(quoting
Ostapowicz v. Johnson Bronze Co.,
541 F.2d 394, 398-99 (3d Cir.1976)).
In this case, Santiago filed a charge of disability discrimination with the EEOC alleging that the City of Vineland Police Department and Chief Mario Brunetta, Jr. discriminated against him, by terminating his employment as a special law enforcement officer and refusing to hire him as a police officer, based upon his “[p]erceived [disability” of drug involvement. Defs.’ Ex. 21 at 1. In his Amended Complaint, however, Santiago alleged, among other things, a claim of race discrimination under Title VII.
It is clear that Santiago is not excused from exhausting his administrative remedies with respect to his claim under Title VII because his race discrimination claim is not within the scope of either the EEOC charge or its reasonable investigation. In
Waiters v. Parsons,
729 F.2d 233 (3d Cir. 1984), the appellant filed a general charge of retaliation with the EEOC and, following her termination, subsequently alleged retaliatory discharge before the District Court.
See id.
at 235-36 . The District Court dismissed the appellant’s complaint because she had failed first to file the retaliatory discharge claim with the EEOC.
See id.
at 236 . The Court of Appeals for the Third Circuit reversed, holding that the appellant’s suit was not barred for failure to exhaust administrative remedies because both “the core grievance-retaliation-is the same” and, based upon the evidence in the record, the retaliatory discharge claim had, in fact, fallen within the scope of the EEOC’s investigation.
See id.
at 238 .
Subsequently, in
Antol v. Perry,
82 F.3d 1291 (3d Cir.1996), the Third Circuit distinguished
Waiters ,
holding that an employee’s gender discrimination claim was not subsumed within the appellant’s EEOC complaint based upon disability discrimination.
See id.
at 1295. In so finding, the Court rejected the appellant’s argument that the disability charge encompassed the gender claim because an EEOC investigation would have revealed the gender issues.
See id.
at 1296. The Court held that “[t]he investigation focused, quite properly ... on the gravamen of [appellant’s] complaint-disability discrimination. Neither the EEOC nor the [appellee] were put on notice of a gender discrimination claim.”
Id.
Like the Court in
Antol ,
I find that Santiago’s Title VII claim is not within the scope of his previously filed disability dis
*529
crimination charge or “the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.”
Hicks v. ABT Assocs., Inc.,
572 F.2d 960, 966-67 (3d Cir.1978)(quoting
Ostapowicz,
541 F.2d at 398-99 );
see also Robinson v. Dalton,
107 F.3d 1018, 1025-26 (3d Cir.1997). Quite simply, the facts associated with Santiago’s racial identity are separate and distinct from those associated with his “perceived disability” based upon his alleged involvement with drugs. In addition, there are no allegations set forth in the charge that would put the EEOC on notice that Santiago was also the victim of discrimination based upon his race. Santiago checked only the “Disability” box on the EEOC charge and his allegations refer only to discrimination based upon a “[p]erceived [disability.”
See
Defs.’ Ex. 21;
see also Mullen v. Topper’s Salon and Health Spa, Inc.,
99 F.Supp.2d 553, 556 (E.D.Pa.2000). Consequently, a reasonable EEOC investigation would not have included Santiago’s Title VII claim. Accordingly, I find that Santiago failed to exhaust his administrative remedies with respect to his Title VII claim and, therefore, I shall grant summary judgment on Count I of the Amended Complaint.
6
B. Santiago’s Discrimination Claims on Grounds of Race, Disability and Retaliation
Turning now to the merits of the Amended Complaint, Santiago alleges that his discharge and the Defendants’ continued refusal to hire him as a Vineland Police Officer violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 1981 and 1983, and the New Jersey Law Against Discrimination (“NJLAD”) because the actions of the Defendants were impermissibly predicated upon his race, a perceived disability, and were in retaliation for Santiago’s act of filing a charge of discrimination with the EEOC.
As a preliminary matter, the legal analysis governing claims of discriminatory treatment in the employment context under these federal and state statutes is the burden-shifting framework of
McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973) and its progeny,
Texas Dep’t of Community Affairs v. Burdine,
450 U.S. 248, 252-53 , 101 S.Ct. 1089, 1093 , 67 L.Ed.2d 207 (1981) and
St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 515 , 113 S.Ct. 2742, 2752 , 125 L.Ed.2d 407 (1993).
See Shaner v. Synthes (USA),
204 F.3d 494, 500 (3d Cir.2000)(finding the Title VII
McDonnell Douglas
burden-shifting rules applicable in the ADA context);
Stewart v. Rutgers, The State University,
120 F.3d 426 , 432 (3d Cir.l997)(citing
Patterson v. McLean Credit Union,
491 U.S. 164, 186 , 109 S.Ct. 2363 , 105 L.Ed.2d 132 (1989))(finding
McDonnell Douglas-Burdine
framework applicable to claims under 42 U.S.C. §§ 1981 and 1983);
Lawrence v. National Westminster Bank New Jersey,
98 F.3d 61, 70 (3d Cir.1996)(stating that the same standards and burdens of proof are applicable to NJLAD claims as are applicable
*530
to ADA claims);
Cinelli v. U.S. Energy Partners,
77 F.Supp.2d 566, 573 (D.N.J.1999)(Simandle, J.)(applying framework to claims under ADA and NJLAD);
Mogull v. CB Commercial Real Estate Group, Inc.,
162 N.J. 449, 462 , 744 A.2d 1186 (2000)(citing
Peper v. Princeton Univ. Bd. of Trustees,
77 N.J. 55 , 389 A.2d 465 (1978))(finding framework applicable to claims under NJLAD).
Under the
McDonnell Douglas
framework, a plaintiff has the initial burden of establishing a
prima facie
case either by providing direct evidence of intentional discrimination or circumstantial evidence that would raise the inference that the defendant’s conduct was motivated by discriminatory animus.
See Burdine,
450 U.S. 248, 252-53 , 101 S.Ct. 1089 , 67 L.Ed.2d 207 ;
see also, Reeves v. Sanderson Plumbing Prods., Inc.,
— U.S.-, 120 S.Ct. 2097, 2106 , 147 L.Ed.2d 105 (2000). Generally, to establish a
prima facie
case, the plaintiff must demonstrate that he: (1) belongs to a protected class; (2) was qualified for the position; (3) was fired or not offered the job; and (4) was replaced by a person outside the protected group.
See Hicks,
509 U.S. at 506 , 113 S.Ct. 2742 , 125 L.Ed.2d 407 .
Once the
prima facie
case has been established, the burden shifts to the defendant to produce a legitimate, nondiscriminatory reason for the adverse employment action taken against the plaintiff.
See Reeves,
120 S.Ct. at 2106 (citing
Burdine,
450 U.S. at 254 , 101 S.Ct. 1089 ). This burden is one of production, not persuasion.
See id.
(citing
Hicks,
509 U.S. at 509 , 113 S.Ct. 2742 ). The defendant satisfies this burden by introducing evidence which, taken as true, would permit a trier of fact to conclude that unlawful discrimination was not the reason for the discharge or the failure to hire.
See Burdine,
at 254-56, 450 U.S. 248 , 101 S.Ct. 1089 , 67 L.Ed.2d 207 . It is noteworthy that the defendant need not prove that the proffered reason actually motivated its conduct.
See id.
Rather, the evidence submitted by the defendant need only raise a genuine issue of material fact as to whether it discriminated against the plaintiff.
See id.
at 254 n. 7, 450 U.S. 248 , 101 S.Ct. 1089 , 67 L.Ed.2d 207 .
If the defendant is successful in meeting this light burden, the burden then rebounds to the plaintiff to prove, by a preponderance of the evidence, that the defendant’s proffered explanation is a pretext for discrimination.
See Hicks,
509 U.S. at 507-508 , 113 S.Ct. 2742 , 125 L.Ed.2d 407 ;
see also Reeves,
120 S.Ct. at 2106 . “[A]l-though the presumption of discrimination ‘drops out of the picture’ once the defendant meets the burden of production ... the trier of fact may still consider the evidence establishing the plaintiffs
prima facie
case ‘and inferences properly drawn therefrom ... on the issue of whether the defendant’s explanation is pretextual.’ ”
Reeves,
120 S.Ct. at 2106 (quoting
Hicks,
509 U.S. at 511 , 113 S.Ct. 2742 ;
Burdine,
450 U.S. at 255, n. 10 , 101 S.Ct. 1089 ). The plaintiff must convince the factfinder “ ‘both that the reason was false, and that discrimination was the real reason.’ ”
Shaner,
204 F.3d at 501 (quoting
Jones v. School Dist. Of Philadelphia,
198 F.3d 403, 412-13 (3d Cir.1999)(internal citations omitted)). The Court of Appeals for the Third Circuit has held that to discredit the employer’s proffered reason:
[T]he plaintiff cannot simply show that the employee’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. Rather, the non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the employee’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them “unworthy of credence” and hence infer “that the employer did not act for [the asserted] nondiscriminatory reasons.”
*531
Id.
(quoting
Fuentes v. Perskie,
32 F.3d 759, 765 (3d Cir.1994)(internal citations omitted)). With this general standard in mind, I shall now turn to Santiago’s individual claims.
1.
Race Discrimination under 1$, U.S.C. §§ 1981 and 1988 and the New Jersey Law Against Discrimination (“NJLAD”)
In Counts Two and Three of the Amended Complaint, Santiago alleges that he was discharged as a special law enforcement officer and bypassed for employment as a Vineland Police Officer on the basis of his race, in violation of 42 U.S.C. §§ 1981
7
and 1983
8
and the NJLAD. Recognizing that the burden-shifting analysis of
McDonnell Douglas
and its progeny govern this aspect of Santiago’s case, the Defendants contend, in their motions for summary judgment, that Santiago cannot establish a prima
facie
case of discrimination because he was not qualified for the position of Police Officer. The Defendants also contend that even if Santiago is able to establish a prima
facie
case, there are legitimate, nondiscriminatory reasons for Santiago’s discharge and bypass, including reliance on New Jersey’s employee selection administrative rule, the “Rule of Three.” Finally, the Defendants argue that Santiago is unable to establish the necessary “pretext” to survive the motions for summary judgment. The Defendants also raise qualified immunity and various liability arguments. In opposition to the motions for summary judgment, Santiago first contends that he was indeed qualified for the position considering, among other things, his inclusion in the Eligibles List. Conceding that the Defendants can satisfy the second prong of the burden-shifting analysis, Santiago also contends that the Defendants’ legitimate, nondiscriminatory reasons for the termination and bypass are pretext for discrimination. For the reasons set forth below, I find that genuine issues of material fact exist on both whether Santiago was “qualified” and whether the Defendants’ legitimate, nondiscriminatory reasons for the termination and failure to hire were pretext for discrimination. I shall, however, grant in part the Defendants’ motions for
*532
summary judgment on Santiago’s race discrimination claims on liability grounds.
*531
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law....
*532
a. The Prima Facie Case Analysis: Was Santiago “Qualified?”
Under the
McDonnell Douglas
burden-shifting standard, as set forth above, Santiago has the initial burden of- establishing, by a preponderance of the evidence, a
prima facie
case of discrimination. To do so, the plaintiff must demonstrate, among other things, that he was qualified for the position. In this case, the Defendants only contend that Santiago is unable to establish that he was qualified for the position of Vineland Police Officer because: (1) Santiago’s inclusion in the Eligibles List did not bestow upon Santiago a right to the position of Police Officer; and (2) the psychological report by Cumberland County rendered Santiago “unqualified” for the position.
9
Santiago contends, on the other hand, that he was qualified because he met the New Jersey Civil Service requirements, maintained a clean criminal record, was of good character, and had been reappointed a number of times as a special law enforcement officer for the City of Vine-land.
In analyzing whether Santiago was qualified for the position of a Vineland Police Officer, this Court “must confine its inquiry to the objective qualifications related to the position of police officer.”
Watson v. City of Salem,
934 F.Supp. 643, 654 (D.N.J.1995)(Simandle, J.)(citing
Ezold v. Wolf, Block, Schorr and Solis-Cohen,
983 F.2d 509, 523 (3d Cir.1992));
see also Sempier v. Johnson & Higgins,
45 F.3d 724, 729 (3d Cir.1995)(“ ‘[w]hile objective job qualifications should be considered in evaluating the plaintiffs
prima facie
case, the question of whether an employee possesses a subjective quality ... should be better left to’ consideration of whether the employer’s nondiscriminatory reason for discharge is pretext”)(quoting
Weldon v. Kraft, Inc.,
896 F.2d 793, 798 (3d Cir.1990)).
This Court finds it incredible that neither party cites to N.J.S.A. 40A:14-122 (West 1993), entitled “General qualifications of members of the police department and force; temporary appointments; absences from duty,” which provides that:
Except as otherwise provided by law, no person shall be appointed as a member of the police department and force, unless he:
(1) is a citizen of the United States;
(2) is sound in body and of good health sufficient to satisfy the board of trustees of the police and firemen’s retirement system of New Jersey as to his eligibility for membership in the retirement system;
(3) is able to read, write and speak the English language well and intelligently;
(4) is of good moral character, and has not been convicted of any criminal offense involving moral turpitude....
Id.; see also Watson v. City of Salem,
934 F.Supp. 643, 654-55 (D.N.J.1995)(Simandle, J.).
In this case, I find that Santiago has at least raised a genuine issue of material fact that he is qualified. The summary judgment record reveals that Santiago is a citizen of the United States,
see
Pl.’s Ex. Vol. I (special law enforcement officer application) at 1 (stating that Santiago was born in Vineland, New Jersey), and that he has a clean criminal record,
see
Defs.’ Ex. 2 at 4; Defs.’ Ex. 3 at 4. Santiago asserts, and the Defendants do not dispute, that he has a good general character.
See
Pl.’s Br. at 24-25. In addition, it is not disputed in this case that Santiago is not profi-
*533
dent in the English language or that he is not physically fit.
While the Defendants are correct that the mere inclusion of a candidate’s name on the Eligibles List does not confer upon him a vested right to employment,
see In re Crowley,
193 N.J.Super. 197, 210 , 473 A.2d 90 (App.Div.1984);
see also Nunan v. New Jersey Dep’t of Personnel,
244 N.J.Super. 494, 497-98 , 582 A.2d 1266 (App.Div.1990), a candidate’s right to employment is separate and distinct from the issue of whether, for purposes of a discrimination claim under 42 U.S.C. §§ 1981 and 1983 and the NJLAD, a candidate was “qualified” for the position. In fact, while this Court does not view the regulations as dispositive of the issue of Santiago’s status as a “qualified” applicant, the New Jersey Administrative Code defines “Eligible list” as “a roster compiled or approved by the Department of Personnel of
persons who are qualified for employment
or reemployment.” N.J. Admin. Code tit. 4A, § 1-1.3 (Supp.l998)(emphasis added).
Instead of contending that Santiago was not qualified for the position of Vineland Police Officer under one of the requirements set forth in N.J.S.A. 40A:14-122, the Defendants assert that Santiago was psychologically unqualified. They have failed, however, to alert this Court to any mental fitness requirement for municipal police officers analogous to that of applicants for the position of state police officer.
See
N.J.S.A. 53:1-9 (providing that “[n]o one shall be appointed [to be a member of the State Police] who has not applied for and taken an examination to the satisfaction of the superintendent, evidence of his mental and physical fitness and ability to perform the duties of a member of the State Police”);
see also State v. State Troopers Fraternal Ass’n,
134 N.J. 393, 415 , 634 A.2d 478 (1993)(“[u]nlike police officers in municipalities subject to Civil Service whose appointment and promotions are governed by the merit-appointment process,
see
N.J.S.A. 11A:4-1 to -16 and N.J.S.A. 40A:14-122.4, applicants, for appointments to the State Police are required to establish to the satisfaction of the Superintendent their mental and physical fitness and general qualifications”).
In fact, although neither party so argued, the State regulations governing this case provide that an appointing authority
10
has the
discretion
to require all of the eligibles to undergo a medical or psychological exam.
See
N.J. Admin. Code tit. 4A, § 4-6.5 (Supp.1998). If that discretion is exercised, the appointing authority may only require such exams after an offer of employment has been made and prior to appointment, and may, if it so chooses, condition the offer on the results of the examination.
See id.
The appointing authority must then follow an intricate procedure to compel the New Jersey Department of Personnel to remove a candidate’s name from the Eligibles List for reasons of medical or psychological disqualification.
See id.
In this case, neither party provides any evidence that the City of Vine-land required psychological exams for all of the candidates named on the Eligibles List and in fact, Sergeant Fresne, in drafting Santiago’s background investigation report, relied on a psychological report conducted not in connection with Santiago’s current application but in connection with his application with the Cumberland County Sheriffs Department.
Confining my inquiry then to the “objective qualifications related to the position of police officer” as set forth in N.J.S.A. 40A:14-122 (West 1993), I find that Santiago has sufficiently raised a genuine issue of material fact that he was qualified for the position of Vineland Police Officer,
b. The Defendants’ Legitimate, Nondiscriminatory Reasons
Under the
McDonnell Douglas
burden-shifting standard, I must determine next if the Defendants have raised
*534
legitimate, nondiscriminatory reasons for Santiago’s discharge and bypass. The Defendants have raised only one argument in support of Santiago’s discharge, namely, that a confidential informant named “Manny” reported that Santiago had in the past sold illegal drugs. In addition to that argument, the Defendants raise three others as nondiscriminatory reasons for their bypass of Santiago for hire as a Police Officer: (1) New Jersey’s “Rule of Three,” see N.J.S.A. HA:4-8 (West 1993); N.J. Admin. Code tit. 4A, § 4d:.8(a)(3)(Supp.1999),
11
bestows upon the Vineland Police Department the discretion to select one individual among the top three available and therefore, the bypass of Santiago was legitimate; (2) citizen Robert Carr came forward with a statement that Santiago had sold drugs in high school; and, (3) based upon the background investigation he conducted, Sergeant Fresne did not recommend Santiago for employment as a Police Officer.
See
Br. in Supp. of Notice of Mot. for Summ. J. on behalf of Defs. City of Vine-land, Joseph Romano and John Gallo at 24;
see also
Br. in Supp. of Notice of Mot. for Summ. J. on behalf of Defs. Brunetta, Letizia, Fresne and D’Augos-tines [sic] at 13.
12
Because Santiago has conceded, for purposes of these motions, that the Defendants have stated legitimate, nondiscriminatory reasons for the discharge and bypass, I need not address whether the Defendants have met their relatively light burden. Moving then to the heart of this inquiry, for the reasons set forth below, I find that Santiago has sufficiently raised a genuine issue of material fact that the legitimate, nondiscriminatory reasons for his discharge and bypass are pretext for discrimination.
c. Pretext for Discrimination
As set forth above, at the pretext stage of the
McDonnell Douglas
analysis, Santiago must establish that a genuine issues of material fact exists that the Defendants’ proffered reasons for the discharge and failure to hire are false or that discrimination was more likely than not the real reason. To discredit such reasons:
[T]he plaintiff cannot simply show that the employee’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. Rather, the non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the employee’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them “unworthy of credence” and hence infer “that the employer did not act for [the asserted] nondiscriminatory reasons.”
Shaner v. Synthes (USA),
204 F.3d 494, 501 (3d Cir.2000)(quoting
Fuentes v. Perskie,
32 F.3d 759, 765 (3d Cir.1994)(inter-nal citations omitted)). In short, I find that Santiago has raised genuine issues of material fact such that a rational factfinder could find all of the Defendants’ proffered reasons “unworthy of credence.”
Id.
i. The Narcotics Allegations
In an effort to raise a genuine issue of material fact as to the information con
*535
cerning his alleged involvement in Freddy Oquendo’s drug operation, Santiago contends that the information was inherently unreliable because: (1) defendant D’Au-gostine was a dishonest police officer who fabricated the allegations; and, (2) the confidential informant, “Manny,” was under indictment at the time of his report, was anxious to please D’Augostine because he was receiving threats involving his status as a confidential informant, and whose unreliability is apparent by his untruthful deposition testimony. This Court shall address these arguments in turn.
First, Santiago relies on three pieces of inadmissible hearsay for his contention that D’Augostine is dishonest: (1) officer Timothy Zatzariny told Santiago that D’Augostine was a “treacherous mother-er,” Pl.’s Ex. Vol. I (Transcript of Conversation between Santiago and T. Zatzariny) at 2; (2) officer Edgar Zatzari-ny told Santiago that unnamed superiors were “[f] — ing with a guy’s career when it’s not true,” PL’s Ex. Vol. I (Transcript of Conversation between Santiago and E. Zatzariny) at 1; and (3) officer Frank Lo-pergolo told Santiago that at some point in time, D’Augostine had unlawfully planted evidence during a drug raid,
see
PL’s Ex. Vol. II (Santiago 12/20/1998 Dep.) at ISO-182. Simply stated, this supposed “evidence” is insufficient to establish pretext in this case because this Court may rely only on evidence admissible at trial.
See Sempier v. Johnson & Higgins,
45 F.3d 724, 727 (3d Cir.1995)(stating that summary judgment is appropriate when “admissible evidence” fails to demonstrate the existence of a genuine issue of material fact and the moving party is entitled to judgment as a matter of law);
Williams v. Borough of West Chester, Pennsylvania,
891 F.2d 458 , 466 n. 12 (3d Cir.1989). In this case, the three statements are inadmissible hearsay.
Santiago next argues that evidence of certain investigatory techniques employed by D’Augostine raises a genuine issue of fact that D’Augostine fabricated the drug allegations against him. For example, Santiago submits the affidavit of James Sinclair, who stated that D’Augostine contacted him and solicited negative information on Santiago,
see
Sinclair Aff. at ¶ 4, and the affidavits of Robin Lynn Carney and Freddy Oquendo who state that at some point in December, 1998, D’Augos-tine told Oquendo that, in exchange for information on Santiago, D’Augostine would ensure that traffic charges pending against Oquendo were dismissed.
See
Oquendo Aff. at ¶ 4;
see also
Carney Aff. at ¶ 6.
The summary judgment record in this case reflects that before Santiago’s discharge, defendant Brunetta ordered D’Au-gostine to attempt to update the drug allegations made against Santiago by the informant, “Manny.”
See
Defs.’ Ex. 41 at 71; Defs.’ Ex. 8. In light of Brunetta’s order, therefore, D’Augostine’s interview of Sinclair, who was Santiago’s supervisor at Sears, was reasonable.
However, D’Augostine’s contact with Carney and Oquendo in December, 1998, which was during the discovery phase of this case, is sufficient to raise a genuine issue of material fact. In its base form, the argument made by Santiago is that D’Augostine fabricated the allegations against him. The two sworn affidavits reveal that during the discovery phase of this case, a named party to the lawsuit promised immunity from the enforcement of State laws in exchange for detrimental information concerning the plaintiff, without justification.
See
Carney Aff. at 6; Oquendo Aff. at 4. Santiago therefore has raised a genuine issue of material fact as to whether the Defendants’ proffered reason for his discharge and bypass, reliance on the confidential informant report, was pretext for discrimination. Specifically, this inconsistency, as well as the others set forth below, could lead a reasonable fact-finder to conclude that D’Augostine fabricated the drug allegations against Santiago and to infer that the drug allegations were unworthy of credence.
*536
Santiago also contends that “Manny” was not a reliable confidential informant because he was under indictment for a crime at the time he allegedly reported the information concerning Santiago to D’Au-gostine. In support of this contention, Santiago submits the judgment of conviction of “Manny,”
13
which provides that following his December 4, 1994 arrest, on April 6, 1995, he was indicted and pled not guilty to theft, in violation of N.J.S.A. 2C:20-3, and criminal attempt, in violation of N.J.SA. 2C:5-1.
See
PL’s Ex. Vol. I (Judgment of Conviction) at 1. On March 11, 1996, “Manny” entered a guilty plea and was convicted of receiving stolen property, in violation of N.J.SA. 2C:20-7.
See id.
In response, the Defendants simply state that the fact that “Manny” had a criminal record “comes as no surprise to anyone involved who has dealt with confidential informants connected to the drug world.” Reply Br. on behalf of Defs. City of Vineland, Joseph Romano and John Gallo at 7.
This “common thread” of criminal activity among informants does not negate the fact that, at the time “Manny” provided the information involving Santiago to D’Augostine, he was under indictment for a State crime. It follows then that “Man-ny’s” otherwise established veracity would reasonably be called into question: was “Manny’s” motive in reporting two-year-old drug allegations to win immunity from prosecution? Did D’Augostine know of “Manny’s” indictment? Clearly, these are questions this Court cannot answer at this phase of the litigation. Clearly, then, genuine issues of material fact exist with respect to whether the Defendants’ reliance on “Manny’s” tip that Santiago had been involved in Freddy Oquendo’s drug operation was a pretext for discrimination,
ii. New Jersey’s Rule of Three
The Defendants also contend that Santiago does not have a cause of action for the bypass because the hiring process of August 1, 1996 conformed to the New Jersey administrative “Rule of Three.” Under that Rule, “a certification that contains the names of at least three interested eligibles shall be complete and a regular appointment shall be made among these eligibles.” N.J.S.A. llA:4-8 (West 1993);
see also
N.J.A.C. 4A:4-4.8(a)(3) (Supp.1999).
14
In their exhibits filed in support of their motions, the Defendants submit the August 1, 1996 Eligibles List, which ranks the relevant candidates as: (1) Stephen M. Ce-sare; (2) Luis A. Santiago; (3) Hector L. Nieves; (4) Robert P. Stanker, II; and (5) John E. Cornish.
See
Defs.’ Ex. 19. By letter dated August 13, 1996, Rudolph A. Luisi, the Director of Police, recommended to the Business Administrator of the City of Vineland that the City hire as police officers Robert P. Stanker, John E. Cornish, and three other individuals listed on the Eligibles List.
See
Defs.’ Ex. 20. In
*537
effect, none of the top three candidates on the Eligibles List was recommended for hire.
Unlike the evidence explaining the recommendations made from the January 22, 1996 Eligibles List, there is no evidence in the record providing any justification for the possible violation of the Rule of Three.
See, e.g.,
Defs.’ Ex. 15 at 1 (finding that, in accordance with the Rule of Three, Candidate 1 was bypassed, Candidates 2-4 did not respond to the Certification Notice, Candidate 5 was bypassed, Candidates 6-7 did not respond, and therefore Candidate 8 was hired). Without any evidence to support the appointing authority’s possibly legitimate bypass of the top three candidates on the August 1, 1996 Eligibles List, I find that there is a genuine issue of material fact as to whether the conduct of the Defendants conformed to the Rule of Three,
iii. Robert Carr
Next, the Defendants assert that on August 1, 1996, Robert Carr, who resided at 129 W. Linden Street in Clayton, New Jersey, reported to defendant Fresne that he was aware that Santiago had applied to become a Vineland Police Officer and that Santiago had sold marijuana to students while he was in high school.
See
Defs.’ Ex. 6 at 1; Defs.’ Ex. 37 at 75. According to Fresne, he confirmed that Carr worked with Santiago at Sears and also that Carr attended Vineland Senior High School with Santiago.
See
Defs.’ Ex. 6 at 1;
see also
Defs.’ Ex. 37 at 75. In support of his argument that the Defendants’ proffered reasons for his bypass are pretext for discrimination, Santiago submits the affidavit of Robert Carr, Jr., wherein Carr denied “ever meeting with an officer from the Vineland Police Department ... [or] providing information that Luis Santiago, who I attended high school with, sold marijuana.” Aff. of Robert Carr, Jr. at ¶ 4. Robert Carr, Jr. states that he presently resides at the same address as was given to defendant Fresne by a “Robert Carr,” attended Vineland High School with Santiago and worked with Santiago for a period of time at Sears. Because there is sufficient evidence to infer, for purposes of these motions, that the citizen informant named Robert Carr and the affiant are the same person, I find that Santiago has raised a genuine issue of material fact that the Defendants’ proffered reliance on the statement of Robert Carr is a pretext for discrimination.
15
iv. The Negative Recommendation
Finally, in response to the Defendants’ reliance on Sergeant Fresne’s negative recommendation for hire, Santiago argues that the background investigation conducted by Fresne was faulty in many respects. I find that Santiago’s purported evidence of impropriety all fail to rise to the level of a genuine issue of material fact. In sum, the Defendants’ proffered reason that it relied on the negative recommendation of Sergeant Fresne, which he set forth in his report of Santiago’s background, was a legitimate, nondiscriminatory reason for the City of Vineland’s bypass of Santiago for the position of Police Officer.
16
In
Fuentes v. Perskie,
32 F.3d 759 (3d Cir.1994), the United States Court of Appeals for the Third Circuit held that to
*538
survive summary judgment on a claim under the
McDonnell Douglas
framework, a plaintiff “generally must submit evidence which: 1) casts sufficient doubt upon each of the legitimate reasons proffered by the defendant so that a factfinder could reasonably conclude that each reason was a fabrication; or 2) allows the factfinder to infer that discrimination was more likely than not a motivating or determinative cause of the adverse employment action.”
Id.
at 762 . The Court was explicit, however, that in certain circumstances, a plaintiff need not refute every single proffered reason of the defendant:
We do not hold that, to avoid summary judgment, the plaintiff must cast doubt on each proffered reason in a vacuum. If the defendant proffers a bagful of legitimate reasons, and the plaintiff manages to cast substantial doubt on a fair number of them, the plaintiff may not need to discredit the remainder. That is because the factfinder’s rejection of some of the defendant’s proffered reasons may impede the employer’s credibility seriously enough so that a factfinder may rationally disbelieve the remaining proffered reasons, even if no evidence undermining those remaining rationales in particular is available.
Id.
at 764 n. 7.
This Court, is satisfied that the
Fuentes
rationale is applicable in this case. In response to the Defendants’ four proffered reasons, Santiago has sufficiently cast doubt on three of the alleged nondiscriminatory reasons, enough that this Court finds that he need not discredit the Defendants’ reliance on Sergeant Fresne’s negative recommendation. In short, I find that, in light of the genuine issues of material fact that have been raised by Santiago with respect to his discrimination claims, a reasonable factfinder could discredit the Defendants’ reliance on the negative recommendation. Accordingly, I find that, at this stage, Santiago has demonstrated the existence of genuine issues of material fact sufficient to withstand summary judgment on the discrimination claims asserted under 42 U.S.C. §§ 1981 and 1983 and the NJLAD, as set forth in Counts Two and Three of the Amended Complaint,
d. Liability of the Defendants
Next, the City of Vineland and the individual defendants set forth various arguments with respect to their liability in support of summary judgment on Santiago’s race discrimination claims under 42 U.S.C. §§ 1981 and 1983 and the NJLAD. I shall address the arguments raised under the federal and state statutes separately, and with respect to each' defendant,
i. Race Discrimination in violation of 42 U.S.C. §§ 1981 and 1983
The Defendants assert three main arguments in support of summary judgment on Santiago’s claims for race discrimination under 42 U.S.C. §§ 1981 and 1983:(1) Santiago has not alleged that the City of Vine-land acted pursuant to a discriminatory policy or custom and therefore it cannot be liable; (2) section 1981 does not support individual liability; and (3) individual defendants Romano and Gallo had no personal involvement in Santiago’s case and therefore cannot be liable. In opposition to these arguments, Santiago contends that: (1) the City of Vineland maintained a custom and practice that “makes it more difficult for Hispanic officers to obtain employment and maintain such employment after obtained,” PL’s Br. at 42, and the City is liable pursuant to the acts of defendant Brunetta, a final policymaker; (2) individuals can be liable under section 1981; and (3) the personal involvement of defendants Romano and Gallo, which subjects them to liability under section 1981, is evidenced by the letters they received from Santiago.
(a) The City of Vineland
Under section 1983, a municipality may be hable only when the constitutional deprivation results from an official policy or custom.
See Monell v. Department of Social Servs. of City of New York,
436 U.S. 658, 690-91 , 98 S.Ct. 2018 , 56 L.Ed.2d 611
*539
(1978);
see also Merkle v. Upper Dublin School Dist.,
211 F.3d 782, 791 (3d Cir.2000). The same policy or custom requirement is necessary to subject a municipality to liability under section 1981.
See Jett v. Dallas Indep. Sch. Dist.,
491 U.S. 701, 736 , 109 S.Ct. 2702 , 105 L.Ed.2d 598 (1989);
Smith v. Chicago Sch. Reform Bd. of Trustees,
165 F.3d 1142, 1148 (7th Cir.1999);
Meachum v. Temple Univ. of the Commonwealth Sys. of Higher Educ.,
42 F.Supp.2d 533 , 539 n. 7 (E.D.Pa.1999);
Reynolds v. Borough of Avalon,
799 F.Supp. 442 , 444 n. 1 (D.N.J.1992)(Gerry, C.J.).
In this case, Santiago alleges first that the City of Vineland maintains a practice that “makes it more difficult for Hispanic officers to obtain employment and maintain such employment after obtained.” Pl.’s Br. at 42. The only example contained in Santiago’s brief, although not specifically cited in support of his argument that the City of Vineland maintained a policy or custom of discrimination, is the case of Nicholas Borrero, an Hispanic individual, who, according to Santiago, was listed as the first candidate on the Eligi-bles List and bypassed.
See
Pl.’s Br. at 14-15. According to the deposition testimony of defendant Brunetta, he did not recommend Borrero for a position within the department because “to some degree [Borrero] falsified the application,” but Borrero subsequently was offered a job by the appointing authority.
See
Pl.’s Ex. Vol. II (Brunetta Dep.) at 54, 66. Because Santiago points to a decision made by Brunetta in another case, the City of Vine-land can only be liable on this ground if Brunetta is found to be a final policymaker of the City. In support of his conclusory contention that Brunetta is a final policymaker of the City of Vineland, Santiago merely states that “defendant Brunetta was acting at all times under authority granted to him by N.J.S.A. 40A:14-118....” Pl.’s Br. at 18.
In
Pembaur v. City of Cincinnati,
475 U.S. 469 , 106 S.Ct. 1292 , 89 L.Ed.2d 452 (1986), the Supreme Court held that, for purposes of section 1983, a single decision by a final policymaker could, under appropriate circumstances, establish municipal liability.
See id.,
475 U.S. at 480, 106 S.Ct. 1292 . The United States Court of Appeals for the Third Circuit has instructed that “a plaintiff must show that an official who has the power to make policy is responsible for either the affirmative proclamation of a policy or acquiescence in a well-settled custom.”
Bielevicz v. Dubinon,
915 F.2d 845, 850 (3d Cir.1990)(citing
Andrews v. City of Philadelphia,
895 F.2d 1469, 1480 (3d Cir.1990));
accord Woodwind Estates, Ltd. v. W.J. Gretkowski,
205 F.3d 118, 126 (3d Cir.2000). “In order to identify who has poli-cymaking responsibility, ‘a court must determine which official has final, unreviewable discretion to make a decision or take an action.’”
Bielevicz,
915 F.2d at 850 (quoting
Andrews,
895 F.2d at 1481 );
accord Blanche Road Corp. v. Bensalem Township,
57 F.3d 253 , 269 n. 16 (3d Cir.1995) This determination is based upon state law.
See City of St. Louis v. Praprotnik,
485 U.S. 112, 124 , 108 S.Ct. 915, 924 , 99 L.Ed.2d 107 (1988);
Andrews,
895 F.2d at 1481 .
In this case, Santiago merely cites N.J.S.A. 40A:14-118 (West 1993) for the proposition that Brunetta is a final policymaker for the City of Vineland. That provision provides, in relevant part, that the head of the police force, if appointed by the governing body of the municipality and “pursuant to policies established by the appropriate authority” shall:
a. Administer and enforce rules and regulations and special emergency directives for the disposition and discipline of the force and its officers and personnel;
b. Have, exercise, and discharge the functions, powers and duties of the force;
*540
c. Prescribe the duties and assignments of all subordinates and other personnel;
d. Delegate such of his authority as he may deem necessary for the efficient operation of the force to be exercised under his direction and supervision; and
e. Report at least monthly to the appropriate authority in such form as shall be prescribed by such authority on the operation of the force during the preceding month, and make such other reports as may be requested by such authority.
Id.
The statute clearly does not provide that the Chief of Police for the City of Vineland has unreviewable discretion to hire and fire Vineland Police Department employees. In fact, the statute provides that the head of police acts pursuant to the policies promulgated by the “appropriate authority,” which is defined by the statute as “the mayor, manager, or such other appropriate executive or administrative officer, such as a full-time director of public safety....”
Id.
Santiago provides no other argument or authority that Brunetta is a final policymaker.
Accordingly, I find that Santiago has failed to point to any evidence in the summary judgment record which would lead a factfinder to conclude that Brunetta was a final policymaker for the City of Vineland. Because Santiago has failed to raise a genuine issue of material fact as to Brunetta’s status, I shall grant the motion of the City of Vineland for summary judgment on Santiago’s race discrimination claim pursuant to 42 U.S.C. §§ 1981 and 1983.
(b) The Individual Defendants
Relying on the unpublished decision of
Behrens v. Rutgers Univ.,
No. 94-CV-358, 1996 WL 570989 (D.N.J. March 29, 1996), Defendants Brunetta, Letizia, Fresne and D’Augostine contend that Sections 1981 and 1983 do not support the liability of individual defendants in their personal capacities. Santiago does not raise any argument with respect to the individual defendants. Acknowledging that an unpublished decision has no prece-dential value before this Court and that the clear weight of authority is to the contrary, I find that the individual defendants may be held liable in their individual capacities under 42 U.S.C. §§ 1981 and 1983.
As a preliminary matter, “[p]ersonal-capacity suits ... seek to impose individual liability upon a government officer for actions taken under color of state law....”
Hafer v. Melo,
502 U.S. 21, 25 , 112 S.Ct. 358, 362 , 116 L.Ed.2d 301 (1991). It is well-established that an individual defendant can be liable in his or her individual capacity under section 1983 if the individual is personally involved in the alleged wrongs.
See Rode v. Dellarciprete,
845 F.2d 1195, 1207 (3d Cir.1988). “Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence.”
Id.
Because individual liability under section 1983 is well-established in this Circuit, the remainder of my analysis shall focus on individual liability under section 1981.
17
*541
In
Sheridan v. E.I. DuPont de Nemours & Co.,
100 F.3d 1061 (3d Cir.1996), the United States Court of Appeals for the Third Circuit held that individual employees cannot be liable under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-l
et seq. See id.
at 1078. The
Behrens
decision, issued approximately eight months before
Sheridan ,
predicted the Title VII analysis of the Third Circuit and held that individual defendants cannot be liable under Title VII.
See id.,
1996 WL 570989 , at *8. Mistakenly, however, the
Behrens
Court assumed without deciding that the section 1981 and 1983 analyses were identical to Title VII and held that an employer’s agent may not be held individually liable únder §§ 1981 and 1983 as well.
See id.
The clear weight of authority finds Title VII and section 1981 distinguishable. For example, section 1981 applies to a broad range of contractual relationships while Title VII is limited to discrimination in the workplace only.
See Sheppard v. Dickstein, Shapiro, Morin & Oshinsky,
59 F.Supp.2d 27, 33 (D.D.C.1999). More importantly, the statutory language of Title VII clearly imposes liability only upon “employer[s],” as defined by the statute, while section 1981 does not contain such a limitation.
See
42 U.S.C. § 2000e(b) (1994);
see also Sheppard,
59 F.Supp.2d at 33 ;
Dalton v. Jefferson Smurfit Corp.,
979 F.Supp. 1187, 1202 (S.D.Ohio 1997). Moreover, the Third Circuit has found that “[s]ection 1981 is a federal civil rights remedy ... in the nature of a tort remedy” and therefore individuals who are personally involved in the discrimination against the plaintiff may be held liable.
Al-Khazraji v. Saint Francis College,
784 F.2d 505 , 518 (3d Cir.1986);
see also Hearne v. Board of Educ. of the City of Chicago,
185 F.3d 770, 776-777 (7th Cir.1999)(finding individual defendant entitled to dismissal of suit against him in his individual capacity because he had no personal role to play in the case);
Allen v. Denver Public School Bd.,
928 F.2d 978 , 983 (10th Cir.1991)(“[a] claim seeking personal liability under section 1981 must be predicated on the actor’s personal involvement”);
Jones v. Continental Corp.,
789 F.2d 1225, 1231 (6th Cir.1986)(finding that individuals- may be held liable for section 1981 violations);
Whidbee v. McDonald’s Corp.,
75 F.Supp.2d 183, 192-93 (S.D.N.Y.1999)(stating that individuals must have some “affirmative link to causally connect the actor with some discriminatory action” to incur liability under section 1981);
Sheppard v. Dickstein, Shapiro, Morin & Oshinsky,
59 F.Supp.2d 27, 33 (D.D.C.1999)(same);
Webster v. Fulton County, Georgia,
44 F.Supp.2d 1359, 1380 (N.D.Ga.1999) (implicitly finding individual defendants subject to section 1981 liability in individual capacities);
Demuren v. Old Dominion Univ.,
33 F.Supp.2d 469, 475-76 (E.D.Va.1999)(same);
Behnia v. Shapiro,
961 F.Supp. 1234, 1237 (N.D.Ill.1997)(stat-ing that individual liability under section 1981 attaches only where individual himself participated in the discrimination);
Lewis v. State of Delaware Dep’t of Public Instruction,
948 F.Supp. 352 , (D.Del.1996)(implicitly finding section 1981 liability attaches in personal capacity suits);
but see Hunter v. Ark Restaurants Corp.,
3 F.Supp.2d 9, 15 (D.D.C.1998)(finding that individual defendant under section 1981 is not liable because he is sued in his capacity as agent of the employer, not in individual capacity).
In accordance with the clear weight of authority, I find that the individual defendants are subject to liability in their individual, personal capacities under both 42 U.S.C. §§ 1981 and 1983. In this case, the summary judgment record supports the conclusion that the individual defendants Brunetta, Fresne and D’Augostine were all involved, in varying degrees, in Santiago’s dischargé and bypass. With respect to defendant Letizia, however,
*542
there is nothing in the record to demonstrate his personal involvement in Santiago’s bypass. Moreover, Santiago also admits, for all intents and purposes, that Letizia was simply following Brunetta’s order, without any other motivation, in discharging him.
See
Defs.’ Ex. 53 at 95-97.
18
Accordingly, I shall grant the motion of defendant Letizia only and deny the motions of Brunetta, Fresne and D’Augos-tine for summary judgment on Santiago’s claims of race discrimination, under 42 U.S.C. §§ 1981 and 1983, for race discrimination in his discharge and bypass.
(c) Defendants Romano & Gallo
Next, individual defendants Romano and Gallo, the Mayor and the Director of Public Safety for the City of Vineland, respectively, at all times relevant to the Amended Complaint, move for summary judgment on Santiago’s race discrimination claims on the ground that they had no personal involvement in Santiago’s case. In support of their motions for summary judgment, Romano and Gallo submit answers to Santiago’s interrogatories, in which they state that they had no personal knowledge or involvement with Santiago.
See
Defs.’ Exs. 33, 34 at ¶ 15.
19
In opposition to the motions for summary judgment, Santiago alleges that the two men were personally involved with his case because he sent them letters advising them that he was discharged from his post as a special law enforcement officer and that “this termination was unwaranted [sic] and without due cause.” Defs.’ Ex. 29 (letter from
*543
Santiago to Romano, dated April 22, 1996) at 1;
see also
Pl.’s Ex. Vol I (Santiago 9/15/1998 Dep.) at 15.
Whether or not the mere receipt of letters would be sufficient to impose liability upon two city officials is not relevant to this race discrimination inquiry because the letters sent by Santiago to Romano and Gallo were insufficient to put the two defendants on notice that Santiago was allegedly discriminated against on the basis of his race. The letter allegedly sent to defendant Gallo is not part of the summary judgment record, but the allegedly similar letter sent to Romano merely states that Santiago’s “termination was unwaranted [sic] and without due cause.” Defs.’ Ex. 29.
In his deposition testimony, Santiago admitted that he had no personal knowledge that defendants Romano and Gallo were personally involved or knew about the actions taken against him, but testified that Romano and Gallo should be held responsible based upon their positions within the City of Vineland.
See
Defs.’ Ex. 35 at 10-16. The well-settled case law interpreting liability under sections 1981 and 1983 precludes such a claim. Because Santiago has failed to raise a genuine issue of material fact that defendants Romano and Gallo had personal knowledge or involvement in the alleged discrimination against Santiago on the basis of his race, I shall grant the motions of defendants Romano and Gallo on Santiago’s race discrimination claims under 42 U.S.C. §§ 1981 and 1983.
ii. Race Discrimination in violation of the NJLAD
In support of their motions for summary judgment, the individual defendants
20
contend that they did not “aid and abet” the discrimination and therefore they cannot be individually liable under the NJLAD. Santiago does not oppose the motions for summary judgment, and therefore summary judgment shall be granted if “appropriate.” Fed.R.Civ.P. 56(e).
In
Hurley v. Atlantic City Police Department,
174 F.3d 95 (3d Cir.1999),
cert. denied,
— U.S.-, 120 S.Ct. 786 , 145 L.Ed.2d 663 (2000), the Court of Appeals for the Third Circuit predicted that the New Jersey Supreme Court would not hold supervisors individually liable as an “employer” under the NJLAD.
See id.
at 125 (interpreting N.J.S.A. 10:5-12(a)). In so holding, the
Hurley
Court analogized the NJLAD to Title VII, stating that:
While an “employer” may be “one or more individuals” under N.J.S.A. 10:5-5(a), that does not necessarily mean that supervisors, themselves employed by individuals or corporations, are “employers.” Title VII defines “employer” to include “a person ... who has fifteen or more employees” or “any agent” of such a person, 42 U.S.C. § 2000e(b), and it could be subjected to the same analysis the dissent uses to find individual liability possible under LAD.
We also note that imposing direct liability on supervisors, who are likely to be substantially judgment-proof, will not significantly add to the force of anti-discrimination law, which already gives employers incentives to ban discrimination and monitor supervisors’ activities. We think that there is insufficient reason to predict that New Jersey would diverge from the federal scheme on this point.
See, e.g., Sheridan v. E.I. DuPont de Nemours & Co.,
100 F.3d 1061, 1077-78 (3d Cir.1996). In sum, while the point is close, as well as unclear, we are simply not willing to predict that New Jersey would include supervisors in the statutory definition of “employer.”
Id.
at 125.
However, the NJLAD does impose liability on individual supervisors who aid or
*544
abet a principal who violates the law.
See Failla v. City of Passaic,
146 F.3d 149,158 (3d Cir.1998). The NJLAD clearly proscribes “any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this act, or to attempt to do so.” N.J.S.A. 10:5-12(e)(West Supp.2000). In
Failla ,
the Third Circuit predicted that the New Jersey Supreme Court would follow the Restatement (Second) of Torts and hold an employee liable for aiding and abetting a violation of the NJLAD when he “knowingly gives substantial assistance or encouragement to the unlawful conduct of his employer.”
Id.,
146 F.3d at 158 . The Court emphasized that employees cannot be held liable “merely because they had some role, or knowledge or involvement[;]” rather, the degree of culpability must meet the heightened standard set forth by the Restatement.
Id.
at 159 ;
see also Gardenhire v. New Jersey Mfrs. Ins. Co.,
333 N.J.Super. 219 , 754 A.2d 1244, 1248 (N.J.Super.Law Div.2000)(adopting the Third Circuit’s analysis of N.J.S.A. 10:5— 12(e)). Subsequently, in
Hurley ,
the Third Circuit refined its holding to conclude that only supervisors can be liable as aiders and abettors under the NJLAD:
[W]e predict that, under New Jersey law, a nonsupervisory employee cannot be held liable as an aider and abettor for his own affirmative acts of harassment, because such affirmative acts do not substantially assist the employer in
its
wrong, which is its failure to prevent and redress harassment by individual employees. Rather, a nonsupervisory employee’s harassment takes advantage of the employer’s wrongful conduct; it is the employee who seems to be “aided and abetted” by the employer. A supervisor, by contrast, may be liable as an aider and abettor for active harassment or knowing and willful inaction, because in either case the supervisor violates his or her duty as a supervisor to prevent and halt harassment.
Hurley,
174 F.3d at 129 (footnotes omitted and emphasis in original). Accordingly, I must first determine which individual defendants were supervisors of Santiago and then, whether genuine issues of material fact exist as to whether those supervisors were aiders and abettors under the NJLAD.
Because the individual defendants misstated the applicable law under the NJLAD, not a single individual defendant contends that he is not a supervisor of Santiago. Construing the facts of this case in the light most favorable to the plaintiff, I shall assume, without deciding, for purposes of these summary judgment motions, that all of the individual defendants named in this action had some type of supervisory role with respect to Santiago. The next question before this Court then, is whether each individual defendant knowingly gave substantial assistance or encouragement to the alleged discrimination involving Santiago.
First, for the reasons set forth above with respect to liability under 42 U.S.C. §§ 1981 and 1983, Santiago has not raised a genuine issue of material fact that defendants Romano and Gallo were aiders and abettors of the alleged race discrimination. Romano and Gallo both stated, and Santiago’s testimony supported, that they had no personal knowledge or involvement in Santiago’s case. Accordingly, I find that Santiago has failed to raise a genuine issue of material fact that defendants Romano and Gallo are individually liable under the NJLAD.
Second, as set forth above, there is no evidence in the summary judgment record that defendant Letizia was involved in any way with Santiago’s bypass and since Santiago admitted Letizia was acting solely pursuant to Brunetta’s order, this Court cannot say that Santiago has raised a genuine issue of material fact that Letizia was encouraging or giving substantial assistance to unlawful conduct. As the Third Circuit held in
Failla v. City of Passaic,
146 F.3d 149 (3d Cir.1998), an
*545
employee cannot be held liable under the NJLAD “merely because they had some role, or knowledge or involvement.”
Id.
at 159 . Accordingly, I shall grant the summary judgment motion of defendant Leti-zia with respect to Santiago’s race discrimination claim under the NJLAD.
Finally, summary judgment with respect to defendants Brunetta, D’Augostine and Fresne
21
would not be “appropriate” in this case. Those defendants contend that the facts of this case are “barely actionable and certainly do not rise to the level of aiding or abetting” a violation of the NJLAD. Br. in Supp. of Notice of Mot. for Summ. J. on behalf of Defs.’ Brunetta, Letizia, Fresne and D’Augostines [sic] at 22. This Court disagrees and finds that genuine issues of material fact abound with respect to whether the three defendants, who clearly are implicated in Santiago’s discharge and bypass, aided and abetted a violation of the NJLAD. Santiago has alleged that the individual defendants knowingly discriminated against him on the basis of his race and has raised genuine issues of material fact as to whether the Defendants’ legitimate, nondiscriminatory reasons for his discharge and bypass are pretext for discrimination. Accordingly, because Brunetta, D’Augostine and Fresne have given me no reason to believe that they are not supervisors, I find that on this record, a reasonable fact-finder could find that defendants Brunetta, D’Augostine and Fresne knew that violations of the NJLAD were afoot and gave substantial assistance or encouragement to the unlawful discrimination. For that reason, I shall deny the motions of Brunetta, D’Augostine and Frense for summary judgment on Santiago’s race discrimination claim under the NJLAD.
e. Qualified Immunity
It is not clear whether the individual defendants have moved for summary judgment on the ground that they are qualifiedly immune from liability on Santiago’s employment race discrimination claims under 42 U.S.C. §§ 1981 and 1983 and the NJLAD. The doctrine of qualified immunity provides that “government officials performing discretionary functions generally are ... ‘shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ”
Wilson v. Layne,
526 U.S. 603, 609 , 119 S.Ct. 1692, 1696 , 143 L.Ed.2d 818 (1999)(quoting
Harlow v. Fitzgerald,
457 U.S. 800, 818 , 102 S.Ct. 2727, 2738 , 73 L.Ed.2d 396 (1982));
see also Michaels v. State of New Jersey,
222 F.3d 118, 120 (3d Cir.2000);
Morales v. Busbee,
972 F.Supp. 254, 260 (D.N.J.1997)(Simandle, J.). To ascertain the applicability of the doctrine, a court “ ‘must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation.’ ”
Wilson,
526 U.S. at 609 , 119 S.Ct. at 1697 (quoting
Conn v. Gabbert,
526 U.S. 286 , 119 S.Ct. 1292, 1295 , 143 L.Ed.2d 399 (1999));
see also Michaels,
222 F.3d at 120 . In the context of a probable cause determination, the Supreme Court, in
Anderson v. Creighton,
483 U.S. 635 , 107 S.Ct. 3034 , 97 L.Ed.2d 523 (1987), noted that:
[T]he right the official is alleged to have violated must have been ‘clearly established’ in a ... particularized ... sense. The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing
*546
violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, ... but it is to say that in light of preexisting law the unlawfulness must be apparent.
Id.
at 640 , 107 S.Ct. at 3039 ;
see also Paff v. Kaltenbach,
204 F.3d 425, 436 (3d Cir.2000). Once the law is deemed “clearly established,” the pertinent inquiry becomes “whether a reasonable officer could have believed that his or her conduct was lawful, in light of the clearly established law and the information in the officer’s possession.”
Sharrar v. Felsing,
128 F.3d 810, 826 (3d Cir.1997)(citing
Hunter v. Bryant,
502 U.S. 224, 227 , 112 S.Ct., 534, 536 , 116 L.Ed.2d 589 (1991)(per curiam);
Anderson v. Creighton,
483 U.S. 635, 641 , 107 S.Ct. 3034, 3039-40 , 97 L.Ed.2d 523 (1987)). Accordingly, “law enforcement officials who ‘reasonably but mistakenly’ conclude that their conduct comports with the requirements of the [law] are entitled to immunity.”
Id.
(quoting
Hunter,
502 U.S. at 227 , 112 S.Ct. at 536 ). The issue of qualified immunity is a matter of law for the court, unless the historical facts are in dispute.
See Berg v. County of Allegheny,
219 F.3d 261, 271-72 (3d Cir.2000).
In this case, the briefs in support of the motions for summary judgment make passing reference to, but do not specifically address, qualified immunity with respect to Santiago’s race discrimination claims under 42 U.S.C. §§ 1981 and 1983 and the NJLAD. Such an analysis would require this Court to delve into whether Santiago’s rights under sections 1981 and 1983, the existence of which this Court has assumed for purposes of these motions, were clearly established at the time of his discharge and bypass, when this Court has received no input from the parties and can find no relevant evidence in the summary judgment record. Accordingly, I shall deny without prejudice the Defendants’ motions for summary judgment on Santiago’s employment race discrimination claims under 42 U.S.C. §§ 1981 and 1983 and the NJLAD to the extent that they so move on grounds of qualified immunity. The Defendants shall have the right to refile for summary judgment only on the ground of qualified immunity, and shall submit briefs on the issue within twenty days of the date of this Opinion and accompanying Order. For the sake of clarity, this denial of the motions for summary judgment without prejudice on the ground of qualified immunity does not affect my finding that defendants City of Vineland, Romano, Gallo and Letizia are entitled to summary judgment on Santiago’s race discrimination claims under 42 U.S.C. §§ 1981 and 1983.
2.
Disability Discrimination under the Americans with Disabilities Act and Handicap Discrimination under the New Jersey Law Against Discrimination (“NJLAD”)
Santiago next alleges that he was discriminated against because the Defendants regarded Santiago as having a disability and handicap, in violation of the Americans with Disabilities Act (“ADA”) and the New Jersey Law Against Discrimination (“NJLAD”). The perceived disabilities and handicaps, he claims, are his involvement in “drug activity,”
see
Defs.’ Ex. 21 (EEOC charge), and, based upon Dr. Bab-cock’s psychological report, a “mental impairment.” Defs.’ Ex. 31 (Pl.’s Answers to Interrogatories of City of Vineland) at ¶ 18. In support of their motions for summary judgment, the Defendants contend that Santiago cannot establish a
prima facie
case because he is not disabled or handicapped under the applicable statutes. In the alternative, the Defendants argue that Santiago is unable to demonstrate that the Defendants’ legitimate, nondiscriminatory reasons for his discharge and bypass are pretextual. Like many claims in this case, Santiago does not oppose the motions for summary judgment and therefore, summary judgment shall be entered against Santiago only “if appropriate.”
See
Fed.R.Civ.P. 56(e).
*547
The Americans with Disabilities Act (“ADA”) prohibits covered entities
22
from discriminating against “a qualified individual with a disability because of the disability of such individual.” 42 U.S.C. § 12112 (a). The ADA defines a “qualified individual with a disability” as a person “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). “Disability” means: “(A) a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; (B) a record of such impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102 (2). Quite clearly, the ADA was not intended to protect minor impairments or mere medical difficulties; instead, “Congress desired to shield from adverse employment actions those individuals whose medical troubles prevented them from engaging in significant daily activities.”
Mañnelli v. City of Erie,
216 F.3d 354, 356, 366 (3d Cir.2000).
Similarly, under the NJLAD, it is unlawful discrimination for an employer to refuse to hire or discharge a person 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, 5-12(a)(West Supp.2000). The NJLAD defines the term “handicapped,” in relevant part, as:
[Suffering from physical disability, infirmity, malformation or disfigurement which is caused by bodily injury, birth defect or illness ... or from any mental, psychological or developmental disability resulting from anatomical, psychological, physiological or neurological conditions which prevents the normal exercise of any bodily or mental functions or is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques.
N.J.S.A. 10:5-5(q) (West Supp.2000);
see also Svamas v. AT & T Communications,
326 N.J.Super. 59, 73 , 740 A.2d 662 (App. Div.1999). Unlike the ADA, the NJLAD “was intended to cover more than just ‘severe’ disabilities,”
Olson v. General Electric Astrospace,
966 F.Supp. 312, 315 (D.N.J.1997)(Fisher, J.)(citing
Andersen v. Exxon Co.,
89 N.J. 483 , 446 A.2d 486 (1982)), and, accordingly, does not require that the handicap substantially limit a major life activity.
See id.
at 314. In fact, the New Jersey Supreme Court has held that the statutory definition of “handicapped” is “very broad in its scope.”
Clowes v. Terminix Int’l, Inc.,
109 N.J. 575, 593 , 538 A.2d 794 (1988).
To establish a
prima facie
case of discrimination under the ADA, a plaintiff must demonstrate that he: “(1) is a disabled person within the meaning of the ADA; (2) is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) has suffered an otherwise adverse employment decision as a result of discrimination.”
Shaner v. Synthes (USA),
204 F.3d 494, 500 (3d Cir.2000)(quoting
Gaul v. Lucent Technologies, Inc.,
134 F.3d 576, 580 (3d Cir.1998) (citing
Shiring v. Runyon,
90 F.3d 827, 831 (3d Cir.1996))). In NJLAD claims, the plaintiff must also establish that the employer sought someone else to do the same work.
See Cinelli v. U.S. Energy Partners,
77 F.Supp.2d 566 , 573 n. 5 (D.N.J.1999)(Simandle, J.);
Svamas v. AT & T Communications,
326 N.J.Super. 59, 73 , 740 A.2d 662 (App.Div.1999). If the plaintiff fails to establish a
prima facie
case of discrimination, then the defendant is entitled to summary judgment.
See Ci-nelli,
77 F.Supp.2d at 573 (citing
Jalil v. Avdel Corp.,
873 F.2d 701, 707 (3d Cir. 1989)).
In this case, the Defendants first contend that Santiago has failed to establish a
*548
'prima facie
case under the ADA and the NJLAD because Santiago is not disabled or handicapped. Santiago alleges that he is disabled under the third prong of the ADA because the Defendants regarded him as having a physical or mental impairment that substantially limits a major life activity. Because I shall assume, without deciding, that Santiago was substantially limited in the major life activity of working,
23
the central issue under the ADA and the NJLAD in this case is whether Santiago’s sale of drugs and his personality characteristics led the Defendants to perceive Santiago as having a physical or mental “impairment” or “disability.” For the reasons set forth below, I find that Santiago has failed to establish that he was perceived as having a physical or mental impairment or disability and, therefore, Santiago has failed to establish a
prima facie
case under the ADA.
As a threshold matter, I note that to establish that he was “regarded as” disabled under the ADA, Santiago need not actually suffer from a
per se
disability for his employer to be held liable under the Act. In
Deane v. Pocono Medical Center,
142 F.3d 138 (3d Cir.1998)(en banc), the United States Court of Appeals for the Third Circuit held that “even an innocent misperception based on nothing more than a simple mistake of fact as to the severity, or even the very existence, of an individual's impairment can be sufficient to satisfy the statutory definition of a perceived disability.”
Id.
at 144 (citing 29 C.F.R. pt. 1630, app. § 1630.2(1));
Taylor v. Pathmark Stores, Inc.,
177 F.3d 180, 182 (3d Cir.1999);
see also Cinelli v. U.S. Energy Partners,
77 F.Supp.2d 566, 574-75 (D.N.J.1999)(Simandle, J.)(finding existence of genuine issue of material fact as to whether defendant-employer regarded plaintiffs cancer as substantially limiting his ability to work, even though cancer is not a
“per se
” disability). The Third Circuit has not ameliorated, however, the requirement that the complained-of affliction rise to the level of an “impairment.”
The regulations promulgated by the Equal Employment Opportunity Commission (“EEOC”) under the ADA define a “physical or mental impairment” as “[a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine,” or as “[a]ny mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.” 29 C.F.R.
*549
§ 1630.2(h)(l)-(2)(1999). The EEOC further provides, in its “interpretive guidance” to Title I of the ADA, that:
It is important to distinguish between conditions that are impairments and physical, psychological, environmental, cultural and economic characteristics that are not impairments. The definition of the term “impairment” does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight or muscle tone that are within “normal” range and are not the result of physiological disorder. The definition, likewise does not include characteristic predisposition to illness or disease. Other conditions, such as pregnancy, that are not the result of a physiological disorder are also not impairments. Similarly,
the definition does not include common personality traits such as poor judgment or a quick temper where these are not symptoms of a mental or psychological disorder.
Id.
at § 1630(h), App. (emphasis added). In a similar vein, the Supreme Court, in
Sutton v. United Air Lines, Inc.,
527 U.S. 471 , 119 S.Ct. 2139 , 144 L.Ed.2d 450 (1999), held that:
An employer runs afoul of the ADA when it makes an employment decision based on a physical or mental impairment, real or imagined, that is regarded as substantially limiting a major life activity. Accordingly, an employer is free to decide that physical characteristics or medical conditions that do not rise to the level of an impairment — such as one’s height, build, or singing voice — are preferable to others, just as it is free to decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job.
Id.,
119 S.Ct. at 2150.
In factual circumstances similar to those of this case, the United States Court of Appeals for the Second Circuit held that certain “character traits” do not amount to a mental condition constituting an impairment which substantially limited a major life activity, within the meaning of the Rehabilitation Act of 1973, 29 U.S.C. § 701 ,
et seq.
24
See Daley v. Koch,
892 F.2d 212, 216 (2d Cir.1989). In
Daley ,
a police department rejected a police officer applicant because a psychological test concluded that he showed “poor judgment, irresponsible behavior and poor impulse control,” rendering the applicant “unsuitable to be a police officer.”
Id.
at 214 . Capitalizing on the minor nature of the alleged disability, the Court quoted the following passage from the case of
Forrisi v. Bowen,
794 F.2d 931 (4th Cir.1986):
It would debase the high purpose if the statutory protections available to those truly handicapped could be claimed by anyone whose disability was minor and whose relative severity of impairment was widely shared. Indeed, the very concept of an impairment implies a characteristic that is not commonplace and that poses for the particular individual a more general disadvantage in his or her search for satisfactory employment.
Id.
at 934 (citation omitted). In short, the Court held that the appellant’s “personality traits could be described as commonplace; they in no way rise to the level of an impairment.”
Id.
at 215.
Years later, the United States District Court for the Southern District of New York applied the holding in
Daley
to find that a correctional officer applicant’s personality traits failed to rise to the level of
*550
an impairment under the ADA.
See Greenberg v. New York State,
919 F.Supp. 637, 639, 643 (S.D.N.Y.1996). In
Greenberg ,
the plaintiff underwent a required psychological examination as part of the application process for the position of Correction Officer with the Department of Correctional Services.
See id.
at 639 . The resulting psychological report stated that the plaintiff “lack[ed] the ability to make decisions regarding security and safety in emergency situations, to perform effecttively (sic) and efficiently under stress, and to identify with potential or actual disruptive situations, required by Correction Officers.”
Id.
In holding that the plaintiff failed to state a claim upon which relief can be granted, the District Court found that the plaintiff was not diagnosed with a particular psychological disease or disorder; rather, “the findings of the psychologist are tantamount to a finding that plaintiff has poor judgment in certain situations.”
Id.
at 643 . Accordingly, the Court found that such personality traits did not rise to the level of impairments under the ADA.
Id.
In this case, a search of the summary judgment record reveals that Santiago attempts to allege two potential impairments: (1) the illegal sale of drugs; and (2) a perceived “mental impairment” based upon the results of his Cumberland County psychological evaluation.
See
Defs.’ Ex. 21; Defs.’ Ex. 31. Interpreting the facts in the light most favorable to the plaintiff, this Court finds incredible and ridiculous any argument that the sale of illegal drugs is either a physical or mental impairment under the ADA or a disability under the NJLAD. Quite plainly, then, this Court must dismiss Santiago’s first allegation.
With respect to Santiago’s second allegation of impairment, this Court is guided by the EEOC regulations and interpretive guidance, as well as the case law of the Second Circuit in finding that Santiago’s personality traits and emotional health are not the “impairments” Congress intended to protect through the ADA. The psychological report noted that Santiago: (1) is ambivalent in the handling of his aggression; (2) at times, acts out emotionally, “maybe even violently;” and, (3) possessed a “personality structure which would be detrimental to a law enforcement agency, to the general public and indeed himself.” Defs.’ Ex. 32 at 1. These personality characteristics are akin to those described in the case law of the Second Circuit and therefore, I find that they are not severe enough to rise to the level of an impairment under the ADA.
Finally, I find that despite the expansive scope of the term “handicapped” under the NJLAD, Santiago’s personality traits are not cognizable under the NJLAD. Accordingly, I find that summary judgment on Santiago’s discrimination claims under the ADA and the NJLAD is “appropriate” and I shall grant summary judgment on those claims.
3.
Retaliation
In Count Six of the Amended Complaint, Santiago alleges that “[t]he continued refusal of the [Defendants to employ the Plaintiff [as a Vineland Police Officer] and the ... [August 21, 1996] arrest of the Plaintiff were performed by the Defendants in order to retaliate against the Plaintiff for filing claims [with the EEOC] under Title 7 of the Civil Rights Act, the Americans [w]ith Disabilities Act and the New Jersey Law Against Discrimination” and accordingly, violated the three statutory provisions.
See
Am. Compl. at ¶¶ 65-66.
25
The issue before this Court with respect to Count Six of the Amended Corn-
*551
plaint is whether individual defendants can be liable under the ADA and to decipher from this cloudy record whether or not the City of Vineland and individual defendants Romano and Gallo actually moved for summary judgment on Count Six of the Amended Complaint.
a. Individual Defendants Brunetta, Frense, Letizia and D’Augostine
In support of their motion for summary judgment, individual defendants Brunetta, Fresne, Letizia and D’Augostine contend that like Title VII, the ADA does not support individual liability. Because Santiago does not provide any opposition to this argument, summary judgment shall be granted if “appropriate.”
See
Fed. R.Civ.P. 56(e).
The ADA and Title VII prohibit a covered entity
26
or employer from discriminating against an individual based upon a disability,
see
42 U.S.C. § 12112 , or because of the individual’s race, color, religion, sex, or national origin,
see
42 U.S.C. § 2000e-2(a)(l). It is well settled that, “in the context of employment discrimination, the ADA, ADEA and Title VII all serve the same purpose-to prohibit discrimination in employment against members of certain classes.”
Walton v. Mental Health Ass’n of Southeastern Pennsylvania,
168 F.3d 661, 666 (3d Cir.1999);
see also Kohn v. AT & T Corp.,
58 F.Supp.2d 393, 419 (D.N.J.1999)(Lechner, J.). Accordingly, the Third Circuit applies the case law under all three statutes interchangeably.
See Walton,
168 F.3d at 666 ;
Kohn,
58 F.Supp.2d at 419 .
In this case, Santiago brings his claim under the anti-retaliation provision of the ADA which provides, in relevant part, that:
No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.
42 U.S.C. § 12203 (a)(1994).
Subsection (c) of this provision provides that the remedies available for a violation of the anti-retaliation provision are set forth in 42 U.S.C. § 12117 .
See
42 U.S.C. § 12203 (c)(1994).
27
Section 12117, in turn, explicitly incorporates the remedies available under Title VIL
See
42 U.S.C. § 12117 (a);
28
see also Baird v. Rose,
192 F.3d 462 , 471-72 (4th Cir.1999);
Kautio v. Zurich Ins. Co.,
No. 97-2411-JWL, 1998 WL 164623 , at * 2 (D.Kan. March 19, 1998).
Under Title VII, actions may be brought only against an “employer, employment agency, labor organization, or joint labor-management committee.” 42 U.S.C. § 2000e-5(b). The statutory definitions of “employer” under Title VII and the ADA are virtually identical.
See
42 U.S.C. § 2000e (“a person engaged in an industry affecting commerce who has fifteen or more employees ... and any agent of such
*552
a person”); 42 U.S.C. § 12111 (5)(A)(“a person engaged in an industry affecting commerce who has fifteen or more employees ... [or] any agent of such a person”);
see also Kohn,
58 F.Supp.2d at 419 (collecting statutory definitions and cases). Neither Title VII nor the ADA explicitly provide for liability against any individuals.
Like many other Courts of Appeal, the Third Circuit has held that individual employees do not meet the definition of “employer” under Title VII and therefore cannot be liable.
Sheridan v. E.I. DuPont de Nemours,
100 F.3d 1061, 1077-78 (3d Cir.1996)(en banc);
Dici v. Commonwealth of Pennsylvania,
91 F.3d 542 , 552 (3d Cir.1996). The decisions of the District Courts in this Circuit have extended the
Sheridan
holding to conclude that there is no individual liability under the ADA.
See Douris v. Brobst,
No. CIV. A. 99-3357, 2000 WL 199358 , at *2 (E.D.Pa. Feb. 18, 2000)(collecting cases);
Kohn,
58 F.Supp.2d at 420 (collecting cases).
In light of the Third Circuit’s decision in
Sheridan
that Title VII does not support individual liability and that the ADA specifically incorporates the remedies available under Title VII, as well as the great weight of authority of the District Courts in this Circuit, I hold that the ADA anti-retaliation provision does not provide a remedy against individual defendants.
See also Baird,
192 F.3d at 472;
Kautio,
1998 WL 164623 at *2;
Stern v. California State Archives,
982 F.Supp. 690, 692-94 (E.D.Cal.1997). Accordingly, I shall grant the motion of defendants Brunetta, Letizia, Fresne and D’Augostine for summary judgment on Count Six of the Amended Complaint because they are entitled to judgment as a matter of law.
b. The City of Vineland and Individual Defendants Romano and Gallo
In their moving brief, defendants City of Vineland, Romano and Gallo only contend that “[Santiago] has no claim for disability discrimination under the Americans with Disabilities Act, 42 U.S.C. [§ ] 12111 or the L.A.D., cannot demonstrate that [Santiago] was disabled or perceived as disabled and cannot demonstrate that the reason for actions as to [Santiago] were a mere pretext for disability discrimination.” Br. in Supp. of Notice of Mot. for Summ. J. on behalf of Defendants City of Vine-land, Joseph Romano and John Gallo at 25. At no point in their moving papers do these defendants mention the applicable statutory provision, 42 U.S.C. § 12203 (a) (1994),
29
or discuss the distinct
prima facie
elements necessary to establish a retaliation claim under the ADA and the NJLAD.
30
Instead, and presumably in the hope that it would suffice, the Defendants stated that:
This motion is directed at all counts of the Amended Complaint as developed in discovery. To the extent a count is not directly addressed, it is understood to be without basis. To the extent plaintiff provides argument on any such point in opposition, reply will be provided.
Br. in Supp. of Notice of Mot. for Summ. J. on behalf of Defs. City of Vineland,
*553
Joseph Romano and John Gallo at 2. The inclusion of such language in a brief filed in support of a motions for summary judgment demonstrates a shocking lack of understanding of the summary judgment procedures embodied in Rule 56. It is the
moving party’s burden to demonstrate that it is entitled to summary judgment.
This is an affirmative obligation of the moving party. Summary judgment cannot be granted based upon an “implication.”
Despite these defendants’ feeble and unfocused attempt to move for summary judgment on his retaliation claim, Santiago, in opposition to the motions for summary judgment, has responded that a genuine issue of material fact exists as to whether he was retaliated against for the filing of his disability discrimination charge with the EEOC.
See
Pl.’s Br. at 35-36. Specifically, he argues that he need not be “disabled” under the ADA to have standing to bring a retaliation claim.
See id.
at 36 . Not surprisingly, the Defendants then addressed the retaliation claim in their reply briefs, raising new contentions in support of their motions for summary judgment.
See
Reply Br. on behalf of Defs. City of Vineland, Joseph Romano and John Gallo at 3-5. At no time did Santiago request permission from this Court to respond to these defendants’ new arguments, or ask this Court to establish a schedule for additional briefing on the issue.
Federal Rule of Civil Procedure 56(c) requires the nonmoving party to be given notice and a reasonable opportunity to respond to the movant’s summary judgment materials.
See Beaird v. Seagate Tech., Inc.,
145 F.3d 1159, 1164 (10th Cir.1998)(citing
Celotex Corp. v. Catrett,
477 U.S. 317, 326 , 106 S.Ct. 2548, 2554 , 91 L.Ed.2d 265 (1986) (holding that summary judgment is to be entered only if nonmov-ant is on notice that it must come.forward with all of its evidence)). If a moving party raises in a reply brief new justifications in support of its motion for summary judgment, and the Court considers those arguments, the nonmoving party must be granted an opportunity to respond.
See id.
Because I find that defendants City of Vineland, Romano and Gallo failed to raise properly the retaliation issue in their moving papers and that their statement that all counts of Santiago’s Amended Complaint are “understood to be without basis” fails to provide the required notice to Santiago, I must conclude that the Defendants did not properly move for summary judgment on Count Six of the Amended Complaint. To interpret such an all-encompassing statement as properly moving for summary judgment would require this Court to rel

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2511242. Public record. Not legal advice.