Olson v. Gen Elec Astrospace

Opinions of the United

1996 Decisions States Court of Appeals

for the Third Circuit

12-5-1996

Olson v. Gen Elec Astrospace

Precedential or Non-Precedential:

Docket 95-5480

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996

Recommended Citation

"Olson v. Gen Elec Astrospace" (1996). 1996 Decisions. Paper 6.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/6

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1996 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 95-5480

JOHN OLSON,

Appellant

v.

GENERAL ELECTRIC ASTROSPACE aka

MARTIN-MARRIETTA ASTROSPACE

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

(Civil No. 94-1190)

Argued: March 22, 1996

Before: BECKER and McKEE, Circuit Judges,

and POLLAK, District Judge

(Opinion filed: December 5, 1996)

STEPHEN E. KLAUSNER, ESQ. (Argued)

JAMES P. MADDEN, ESQ.

Klausner & Hunter

P.O. Box 1012

63 E. High Street

Somerville, NJ 08876

Attorneys for Appellant

ROBERT H. BERNSTEIN, ESQ. (Argued)

Epstein, Becker & Green

The Legal Center

One Riverfront Plaza

Newark, NJ 07102

Attorneys for Appellee

OPINION OF THE COURT

McKEE, Circuit Judge:

John Olson, a former employee of General Electric Astrospace

("GE"), appeals the district court's grant of summary judgment

in favor of GE on claims Olson filed under the Americans With

Disabilities Act, 42 U.S.C. § 1210 et seq., ("ADA"), and the New

Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 et

seq. The district court ruled that Olson failed to establish a

prima facie case of discrimination under either the ADA or the

LAD. We agree that Olson did not demonstrate that he was

disabled or had a record of impairment under the ADA. However,

we disagree that Olson did not demonstrate the existence of a

material fact as to a perception of an impairment. Accordingly,

we will affirm in part and reverse in part, and remand for

further proceedings consistent with this opinion.

I.

John Olson began his employment with GE as a Senior Member,

Technical Staff, in the Parts Engineering Department, on April 3,

1988. His job responsibilities generally included evaluating

Non-Standard Part Approval Requests ("NSPARS") and writing Source

Control Drawings ("SCDS") for microcircuits. Throughout most of

this period, Olson reported to Dale Sansoni, Manager of Parts

Engineering. Olson liked Sansoni and considered him a good

supervisor.

On August 23, 1991, Sansoni prepared the only written

performance appraisal of Olson's job performance at GE. It

covered the period from December 1988 to August 1991. Sansoni

gave Olson a rating of "2" on a scale of "1" to "5", with "5"

being the highest score. Sansoni's appraisal noted that Olson

"needed improvement." Olson apparently agreed with Sansoni's

assessment.

In February of 1991, Olson was hospitalized for four months

for depression. He returned to work in late May or early June of

1991 although Sansoni gave Olson as much time off from work as he

needed.

On September 11, 1991, GE told Olson that he was being laid-

off along with hundreds of others as part of a general reduction

in force necessitated by adverse business conditions. A month

later, on October 11, 1991, Olson was formally laid-off.

In August of 1992, a former co-worker told Olson that the

position of Quality Assurance Specialist was opening at GE's East

Windsor, New Jersey facility. The person hired as QA Specialist

would report to Sansoni who was still the Manager of Parts

Engineering. Olson was interested and telephoned Sansoni, who

encouraged Olson to apply. On September 9, 1992, Olson submitted

his application to the GE Transition Center in Princeton, New

Jersey. The application was forwarded to Amy Levinson-Close,

Human Relations Manager.

Initially, Olson was one of four applicants. Sansoni

interviewed Olson for the position on September 21, 1992. GE

contends that because Sansoni already knew Olson and was familiar

with his work, the interview focused on Olson's experiences since

being laid-off. Olson contends that during that interview,

Sansoni asked him if he had any further medical developments, and

that Sansoni was referring to Olson's 1991 hospitalization for

depression. Olson alleges that approximately one-third of the

interview concerned Olson's health and marital status.

According to Olson, Sansoni discussed the medication Olson

was taking, and a one month hospitalization that Olson had

admitted himself to for testing. Olson did not, however, tell

Sansoni that he had also been tested for Multiple Personality

Disorder. Olson contends that he and Sansoni also discussed an

overnight hospitalization that Olson had undergone in order to

diagnose a possible sleep disorder. Olson maintains that he told

Sansoni that all of the tests had been negative, and that the

doctors had informed him that the most likely diagnosis was

simply a sleep disorder. According to Olson, Sansoni told him

that he would recommend that Olson be hired for the position and

that he would not be interviewing the other applicants.

A few days after Sansoni interviewed Olson, a co-worker gave

Sansoni the resume of Jeffrey Venditte. Venditte and the co-

worker who gave Sansoni the resume had previously worked together

at Hughes Aircraft Company and the co-worker highly recommended

Venditte to Sansoni. About one week after Sansoni interviewed

Olson, Sansoni interviewed Venditte. Sansoni considered both

Olson and Venditte qualified for the job, but recommended

Venditte to Christina Eggert who was Sansoni's superior. GE

maintains that Sansoni believed that Venditte had better

experience than Olson with respect to parts overstressing and

failure analysis which were two principal job requirements.

Sansoni also believed that Venditte's work at Hughes and ITT

would be valuable to GE. At ITT, Venditte had been on a team

that was responsible for a database management system used by

four major subcontractors of GE. At Hughes, Venditte had been

involved in resolving spacecraft part failures, and that

experience was related to the job he would perform at GE.

Sansoni and Eggert discussed Olson's and Venditte's

qualifications, but Ms. Eggert made the final decision. Eggert

agreed with Sansoni's recommendation and hired Venditte. GE

claims that Eggert and Sansoni discussed neither Olson's previous

hospitalization nor his health in arriving at a decision to hire

Venditte. On October 21, 1992, Sansoni telephoned Olson and told

him that another candidate had been hired.

On November 4, 1992, Olson filed a complaint with the EEOC,

alleging that he was not hired because of his "disability" in

violation of the ADA. The EEOC conducted an investigation and

on December 13, 1993, issued a no-cause determination.

On March 11, 1994, Olson filed a complaint against GE

alleging that GE did not hire him because of his disability or

perceived disability in violation of the ADA and the LAD. Olson

alleges that his disability is "depression, sleep disorder and

multiple personality disorder." Complaint ¶ 16.

After the pleadings were closed, GE filed a motion for

summary judgment. The district court entered an Order granting

summary judgment to GE and dismissing Olson's complaint with

prejudice. In a Memorandum Opinion accompanying the Order, the

district court held that Olson had not established a prima faciecase under

the ADA or the LAD because he failed to establish that

he is disabled, that he has a history of impairment or that GE

perceives him to be disabled.

This appeal followed.

II.

Summary judgment is proper only where there is no

genuine issue of material fact for the factfinder to decide.

Fed.R.Civ.P. 56(c). In order to demonstrate the existence of a

genuine issue of material fact, the nonmovant must supply

sufficient evidence (not mere allegations) for a reasonable jury

to find for the nonmovant. Coolspring Stone Supply, Inc. v.

American States Life Ins. Co., 10 F.3d 144, 148 (3d Cir. 1993).

Our standard of review on an appeal from a grant of summary

judgment is plenary. Id. at 146. We apply the same test the

district court should have used initially, Public Interest

Research Group of New Jersey v. Powell Duffryn Terminals, Inc.,

913 F.2d 64, 76 (3d Cir. 1990), cert. denied, 498 U.S. 1109

(1991), and review the facts in the light most favorable to the

party against whom summary judgment was entered. Coolspring

Stone Supply, Inc. v. American States Life Ins. Co., 10 F.3d at

146.

III.

A. The ADA Claim.

The section of the ADA under which Olson brought his claim

provides, in relevant part, as follows:

No covered entity shall discriminate against

a qualified individual with a disability

because of the disability of such individual

in regard to job application procedures, the

hiring, advancement, or discharge of

employees, employee compensation, job

training, and other terms, conditions, and

privileges of employment.

42 U.S.C. § 12112.

It is now axiomatic that the familiar analytical framework

first pronounced in McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973), for resolution of suits brought under Title VII, also

guides an analysis of claims brought under the ADA. Newman v. GHS

Osteopathic, Inc., 60 F.3d 153, 157 (3d Cir. 1995). Accordingly,

Olson had the initial burden of establishing a prima facie case

of unlawful discrimination. To do so he had to establish that

(1) he belongs to a protected category; (2) he applied for and

was qualified for a job for which the employer was seeking

applicants; (3) despite his qualifications, he was rejected; and

(4) after his rejection, the position remained open and the

employer continued to seek applicants. Sheridan v. DuPont, ___

F.3d ___, No. 94-7509 (3d Cir. Nov. 14, 1996) (en banc), Fuentes

v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994) (discussing elements

in a case of failure to hire or promote under Title VII). In

McDonnell Douglas, the court noted that "the facts necessarily

will vary in Title VII cases, and the specification . . . of the

prima facie proof required . . . is not necessarily applicable in

every respect to different factual situations." 411 U.S. at 802

n.13. Olson's allegations reflect an alternative to the fourth

element of the McDonnell Douglas scenario: namely, a rejection

of plaintiff accompanied, or followed by, a filling of the job

with a person not belonging to the protected category. If the

plaintiff succeeds in establishing a prima facie case, the burden

of production then shifts to the employer to articulate some

legitimate, nondiscriminatory reason for the plaintiff's

rejection. Id. Once the employer articulates a legitimate

reason for the unfavorable employment decision, the plaintiff

must show by a preponderance of the evidence that the employer's

proffered explanation was pretextual. Id.

In order to defeat a summary judgment motion after the

defendant answers plaintiff's prima facie case with legitimate,

nondiscriminatory reasons for its action, the plaintiff must

point to some evidence, direct or

circumstantial, from which a factfinder could

reasonably either (1) disbelieve the

employer's articulated legitimate reasons; or

(2) believe that an invidious discriminatory

reason was more likely than not a motivating

or determinative cause of the employer's

action.

Id. at 764. The plaintiff "must demonstrate such weaknesses,

implausibilities, inconsistencies, incoherencies, or

contradictions in the employer'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 non-discriminatory reasons." Id. at 765

(internal citations, quotations and brackets omitted). Once the

plaintiff has pointed to some evidence which sufficiently

discredits the employer's proffered reasons, plaintiff need not

"also come forward with additional evidence of discrimination

beyond his or her prima facie case." Id. at 764. Rather, the

factfinder may consider the elements of plaintiff's prima facie

case along with the rejection of the employer's explanation and

conclude that illegal discrimination is more likely than not the

true reason for the challenged employment action. "It is the

jury's determination that the reason given was pretextual

together with the evidence that supported the prima facie case

that will sustain a finding of intentional discrimination . . ."

Sheridan, slip. op. at 20. The factfinder is not, however,

compelled to so find, as the plaintiff always has the burden of

proof. Id. at 763.

However, before the burden-shifting can even begin, Olson

must show that he is a member of a protected class. Olson argues

that he is a member of the protected class because he meets each

of the three categories of protection under the ADA. He argues

he: (1) is disabled because he was hospitalized for depression

for four months; (2) has a record of impairment because of his

hospitalization and because of his diagnoses of Multiple

Personality Disorder and a sleep disorder; and (3) is regarded as

disabled by GE.

The ADA defines the term "disability" as:

(A) a physical or mental impairment that

substantially limits one or more of the major

life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an

impairment.

42 U.S.C. § 12102(2). "Major Life Activities" include "functions

such as caring for oneself, performing manual tasks, walking,

seeing, hearing, speaking, breathing, learning, and working." 29

C.F.R. § 1630.2(i). These activities are "substantially

limit[ed]" when one is

(i) Unable to perform a major life activity

that the average person in the general

population can perform; or

(ii) Significantly restricted as to the

condition, manner or duration under which an

individual can perform a particular major

life activity as compared to the condition,

manner, or duration under which the average

person in the general population can perform

that same major life activity.

29 C.F.R. § 1630.2(j)(1). In determining if a person is affected

by a disability that "substantially limits" a "major life

activity" we must consider several factors including:

(i) The nature and severity of the

impairment;

(ii) The duration or expected duration of the

impairment; and

(iii) The permanent or long term impact, or

the expected permanent or long term impact of

or resulting from the impairment.

29 C.F.R. § 1630.2(j)(2). Our task is to determine if a person

who claims a disability under the ADA is "significantly

restricted in the ability to perform either a class of jobs or a

broad range of jobs in various classes as compared to the average

person having comparable training, skills and abilities." 29

C.F.R. § 1630.2(j)(3)(i). An "inability to perform a single,

particular job does not constitute a substantial limitation in

the major life activity of working." Id.

In granting summary judgment for GE and against Olson, the

district court held that Olson had failed to establish a prima

facie case that he was disabled. The court stated:

[c]onsidered separately or together, neither

plaintiff's hospitalization nor his alleged

emotional condition are enough to classify

him as disabled for purposes of establishing

a prima facie case under the ADA. Plaintiff

has not demonstrated how, if at all, his

alleged condition has impacted his life. On

the contrary, plaintiff has indicated that he

works, goes to school full time and regularly

engages in recreational activities. The court

therefore concludes that plaintiff has not

made a prima facie showing that he is

disabled.

Dist. Ct. Op. at 7.

Similarly the court denied Olson's claim that he had a

record of impairment. In doing so, the court minimized the

serious nature of Olson's depression and personality order. The

court stated:

Plaintiff has apparently misunderstood what

is meant by 'a record of such impairment.'

That subsection . . . is intended to ensure

that people are not discriminated against

because of a history of disability. This . .

. is satisfied if a record relied on by an

employer indicates that the individual has .

. . had a substantially limiting impairment.

. . . It is absolutely necessary for the

plaintiff to show that the impairment . . .

substantially limits one or more of the

individual's major life activities. . . .

[N]either a diagnosis of multiple personality

disorder nor a history of testing for sleep

disorders will satisfy that burden. Plaintiff

would have to show that, while those

disorders were active, they substantially

limited one of life's major activities. He

has not done so.

Dist. Ct. Op. at 7-8 (citations omitted).

Finally, the district court also concluded that Olson had

not demonstrated that he was regarded or perceived as being

disabled. It did so because Eggert, not Sansoni was responsible

for not hiring Olson, and Olson could not demonstrate that Eggert

knew of Olson's health problems. The court noted:

Indeed, it is unlawful for an employer to

base an employment decision on the belief

that the employee is disabled. However,

Christina Eggert, the individual who had the

ultimate authority to make the hiring

decision in question here, has certified that

she did not discuss plaintiff's health with

the interviewer and she was not aware that

plaintiff suffered from depression, multiple

personality disorder or any other type of

mental illness. An employer cannot be said to

have regarded an individual as disabled when

the person charged with making the adverse

employment decision lacked knowledge of the

employee's condition.

Dist. Ct. Op. at 8 (citations omitted). The court therefore

concluded that Olson "failed to show that he belongs to a

protected class, a threshold requirement of the ADA." Dist. Ct.

Op. at 9.

As noted earlier, we agree with the district court's

conclusion that Olson did not show that he was either disabled or

had a record of impairment within the meaning of the ADA. The

evidence recited by the district court that reflects Olson's

ability to function normally despite what appear to be serious

psychological and emotional problems defeats that part of Olson's

ADA claim. Accordingly, the evidence that was apparently offered

to demonstrate Olson's fitness as an employee ironically

establishes that he was not substantially limited in a major life

activity. Therefore he can not establish that he is disabled, or

that he has a history of being disabled. However, we believe

that Olson clearly demonstrated a genuine issue of material fact

as to the third basis of his ADA claim. A reasonable factfinder

could conclude that he did not get the job because GE regardedhim as

disabled.

The regulations provide that being "regarded as having such

an impairment" means:

(1) Has a physical or mental impairment that

does not substantially limit major life

activities but is treated by a covered entity

as constituting such limitation;

(2) Has a physical or mental impairment that

substantially limits major life activities

only as a result of the attitudes of others

toward such impairment; or

(3) Has none of the impairments defined in

paragraphs (h)(1) or (2) of this section but

is treated by a covered entity as having a

substantially limiting impairment.

29 C.F.R. § 1630.2(l)(1)-(3). Thus, Olson would be disabled

within the meaning of the ADA if GE regarded Olson as having a

disabling impairment. See Holihan v. Lucky Stores, Inc., 87 F.3d

362, 366 (9th Cir. 1996).

Olson argues that it is reasonable to infer that GE

perceived him to be disabled because at least one-third of his

interview with Sansoni was spent discussing Olson's health, and

because Sansoni's performance evaluation of Olson during Olson's

prior employment with GE contains the following references to

Olson's health:

John's time card charges are not always

entered on a daily basis. On a number of

occasions I have not signed his time card

because he was out on personal illness. . . .

His work habits are questionable because he

has taken an unusual amount of time off for

personal illness reasons.

I have spoke (sic) to John on several

occasions regarding his personal illness. I

depend on John to perform as a senior member

of my Technical Staff and I have questioned

his commitment to Parts Engineering.

A majority of John's appraisal was prepared

back in March of this year (when it was

originally due), however John went on

extended illness from March, 1990 to June

1990 which caused this performance discussion

to be delayed until now.

Appellant's App at 35, 36. Olson then appears to argue that

because Sansoni reported to Eggert, a reasonable factfinder could

conclude that Eggert was aware of Olson's health problems because

of discussions she would most certainly have had with Sansoni.

In response GE points out that Eggert made the hiring

decision, and she had no knowledge of Olson's health problems or

history of hospitalizations. GE reminds us that Eggert's

certification establishes that she never discussed Olson's health

with Sansoni, and that Olson's own statements establish that GE

was unaware of Olson's condition at the time Venditte was hired.

Olson's affidavit to the EEOC is part of the record in the

district Court. In that affidavit Olson swore:

I wish to state for the record that I believe

Mr. Sansoni's questions about my health and

current marital status arose out of a sincere

desire to re-establish a friendly

relationship which we enjoyed prior to and

following my layoff from GE.

Appellee's App. at 68. Similarly, Olson testified in his

deposition that "I don't believe that [Sansoni], in fact,

discriminated against me on the basis of my health during the

interview in 1992." Appellee's App. at 38.

We agree that knowledge of Olson's hospitalization and

illnesses cannot be imputed to Eggert. She filed a Certification

disclaiming any such knowledge, and Olson presented no evidence

to the contrary. Thus, the district court correctly concluded

that Olson's theory of imputed knowledge was based upon sheer

speculation, and was therefore insufficient to raise a genuine

issue of material fact. However, we need not impute Sansoni's

knowledge of Olson's hospitalization and illnesses to Eggert to

find that Olson was perceived as disabled by GE. The error here

occurred precisely because the district court limited its inquiry

to Eggert's knowledge of Olson's disability rather than

considering Sansoni's perception. Sansoni was directly involved

in the hiring process, and it is uncontroverted that he knew of

Olson's health problems. It is also uncontroverted that he

recommended Venditte, not Olson, to Eggert who then offered the

position to Venditte. Sansoni had been Olson's supervisor, and

was aware of Olson's hospitalization and illnesses. He prepared

the only written evaluation of Olson's performance at GE, and in

it Sansoni made multiple references to the fact that Olson had

missed a significant amount of work because of illness. He

specifically stated that Olson had been hospitalized for four

months, and he noted that he had discussed illness-related

absences with Olson on several occasions. Moreover, these

absences caused Sansoni to question Olson's commitment to his

job. Finally, it is undisputed that Sansoni spent a significant

amount of time during Olson's interview discussing Olson's health

problems.

Viewing these facts in the light most favorable to Olson as

the nonmovant (as we must), it is clear that a reasonable fact-

finder could infer that Sansoni perceived Olson to be disabled.

One could reasonably conclude that this affected the

recommendation Sansoni made to Eggert, and that that caused GE to

hire Venditte.

Where a hiring decision is based largely or entirely on a

recommendation or evaluation made by an employee who perceived

the applicant as disabled, the employer can be held liable in a

perception case. Thus, at least for summary judgment purposes, it

is irrelevant whether Eggert knew of Olson's health problems or

not. So long as Sansoni knew, and he clearly did, and so long as

Eggert made her hiring decision based upon Sansoni's

recommendation, there is a genuine issue of material fact as to

whether GE perceived Olson as disabled.

Moreover, the cases that have found for the employer because

the employer did not know of an employee's illness or condition

are not to the contrary. In Geraci v. Moody-Tottrup,

International, Inc., 82 F.3d 578 (3d Cir. 1996), a pregnancy

discrimination suit under Title VII, the plaintiff offered no

evidence that any of her managers knew she was pregnant.

Therefore, even though she told some of her co-workers, absent

evidence that someone in position of authority knew of her

condition, she could not prevail against her employer. Similarly,

in Hedberg v. Indiana Bell Telephone Co. Inc, 47 F.3d 928 (7th

Cir. 1995), management relied upon a recommendation made by the

plaintiff's supervisor in making the decision to fire the

plaintiff. However, the supervisor's evaluation of the plaintiff

was made before the supervisor knew of plaintiff's illness, and

the plaintiff offered no evidence that any of the decisionmakers

knew of his illness when they fired him. In neither of these

cases was the decision to discharge the plaintiff based largely

or entirely upon a recommendation of a supervisor who knew of

plaintiff's condition.

Similarly, in determining whether Olson is a member of a

protected class, it is irrelevant whether Olson believed that

Sansoni did not discriminate against him during the interview.

Olson's belief in Sansoni's sincerity does not establish that

Sansoni's recommendation was not, in fact, altered by his view of

Olson's health. Were summary judgment to be allowed on Olson's

perception claim under such circumstances the already difficult

task of proving discriminatory motive would be made significantly

more difficult.

The McDonnell Douglas-Burdine burden-shifting

framework was created because only rarely

will a plaintiff have direct evidence of

discrimination. Gone are the days (if,

indeed, they ever existed) when an employer

would admit to firing an employee because she

is a woman, over forty years of age, disabled

or a member of a certain race or religion. .

. . The elements of that prima facie case,

however, must not be applied woodenly, but

must rather be tailored flexibly to fit the

circumstances of each type of illegal

discrimination.

Geraci, 82 F.3d at 581.

Viewing this record in the light most favorable to Olson,

the nonmovant in summary judgment, it is clear that a genuine

issue of material fact exists as to whether the recommendation

that Sansoni made caused Venditte to be hired over Olson, and if

so, whether that recommendation was affected by a perception that

Olson was disabled within the meaning of § 12102(2)(C) of the

ADA. Because the district court incorrectly ruled that Olson did

not establish that there was a question of material fact as to

whether he was regarded as disabled by GE, and thus a member of a

protected class, we will reverse the district court's grant of

summary judgment as to the issue of GE's perception of

disability.

B. The LAD claim.

The section of New Jersey's Law Against Discrimination

("LAD") under which Olson brought his claim provides, in relevant

part:

the provisions of this act. . . prohibit any

unlawful discrimination against any person

because such person is or has been at any

time handicapped or any unlawful employment

practice against such person, unless the

nature and extent of the handicap reasonably

precludes the performance of the particular

employment.

N.J.S.A. 10:5-4.1. The LAD thus uses the term "handicap" as

opposed to "disability". The district court did not discuss

Olson's LAD claim because it ruled that its holding that Olson

had not established a claim under the ADA also defeated his claim

under the LAD. The court stated, "[f]or the same reasons that

plaintiff has failed to establish that he is disabled under the

ADA, he has likewise failed to establish that he is within the

class of persons protected by the LAD." Dist. Ct. Op. at 9, n.2.

It is clear that the same McDonnell Douglas framework that

guides us under the ADA would also guide a New Jersey court under

the LAD. See McKenna v. Pacific Rail Service, 32 F.3d 820, 824

(3d Cir.1994); Waldron v. SL Industries, Inc., 56 F.3d 491, 503-

504 (3d Cir. 1995); Andersen v. Exxon Co., U.S.A., 446 A.2d 486,

490-491 (N.J. 1982); Kelly v. Bally's Grand, Inc., 667 A.2d 355,

359 (N.J. Super. Ct. App. Div. 1995); Grigoletti v. Ortho

Pharmaceutical Corp., 570 A.2d 903 (N.J. Sup. Ct. 1990). It is

not nearly so clear, however, whether a "disability" under the

ADA is the same as a "handicap" under the LAD.

Olson argues that the LAD standard for demonstrating a

"handicap" is much less stringent than the standard for

demonstrating a "disability" under the ADA. Specifically, he

contends there is no requirement under the LAD that a handicap

"substantially limit one or more of the major life activities" of

an individual.

In Andersen v. Exxon Co., U.S.A., 446 A.2d 486 (N.J. Sup.

Ct. 1982), the New Jersey Supreme Court, rejecting a construction

of the LAD that would make it applicable only to severe

disabilities, wrote:

We need not limit this remedial legislation

to the halt, the maimed or the blind. The

law prohibits unlawful discrimination against

those suffering from physical disability. As

remedial legislation, the [LAD] should be

construed with that high degree of liberality

which comports with the preeminent social

significance of its purposes and objects.

Since the inception of the [LAD], our courts

have repeatedly recognized its humanitarian

concerns, its remedial nature and the liberal

construction accorded it. The paramount

purpose of the statute is to secure to

handicapped individuals full and equal access

to society, bounded only by the actual

physical limits that they cannot surmount. .

. . [I]t would be ironic indeed for the

individual only slightly handicapped to be

denied coverage under the act while more

restricted individuals are accorded

protection. The statute speaks in terms of

any physical disability. There is simply no

basis for limiting its coverage to so-called

severe disabilities.

446 A.2d at 492 (citations and internal quotations omitted).

Although the circumstances in Andersen caused the court to speak

in terms of physical handicaps, the actual language of the LAD

encompasses more than physical impairment. The LAD provides, in

relevant part, as follows:

"Handicapped" means suffering . . . 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)(emphasis added).

Thus, it appears that Olson would be suffering from a

handicap under the LAD if his depression, his sleep disorder or

his multiple personality disorder, singly or in combination,

would prevent the normal exercise of his bodily or mental

functions (as may be required under the ADA's substantial

limitation of a major life function) or if the disability is

diagnosed under medically accepted techniques. Accordingly, it

may be that the LAD does not require that Olson demonstrate that

his depression, sleep disorder, or multiple personality disorder

"substantially limit[] one or more of [his] major life

activities." 42 U.S.C. § 12102(2)(A), and that Olson can be

handicapped under the LAD without being disabled under the ADA.

However, we need not decide that issue now. Upon remand, the

district court will be able to resolve the LAD claim after

reviewing additional briefs of the parties and the latest New

Jersey authority. We regret, however, that that determination

must of necessity (given the absence of a certification procedure

in New Jersey) be based upon a federal court's assessment of the

current state of New Jersey law.

IV.

For the above reasons, we will affirm the district court's

grant of summary judgment to GE on Olson's claim under the ADA

based on the district court's findings that Olson did not

demonstrate that he was disabled or had a record of impairment.

However, we will reverse the grant of summary judgment to GE on

Olson's ADA claim that GE regarded him as disabled and remand on

that issue only. We will also reverse the grant of summary

judgment to GE on Olson's LAD claim and remand for the district

court to consider whether Olson demonstrated that he is

handicapped as defined in the LAD.