# J.R. VS. CITY OF JERSEY CITY (L-4920-17, HUDSON COUNTY AND STATEWIDE)

> New Jersey Superior Court Appellate Division · June 21, 2021

URL: https://www.frixlaw.com/law-library/cases/4697171

## Case

- **Court:** New Jersey Superior Court Appellate Division
- **Decided:** June 21, 2021
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 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/4697171

## How later opinions describe it (automated extraction)

- stating that a municipality can be held liable for acts committed by one of its employees pursuant to a governmental policy or custom that violates the Constitution

## Opinion text

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3200-19

J.R.,

Plaintiff-Appellant,

v.

CITY OF JERSEY CITY,

Defendant-Respondent.

Submitted April 12, 2021 – Decided June 21, 2021

Before Judges Sabatino, Currier and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-4920-17.

Caruso Smith Picini, PC, attorneys for appellant (Ben
Weathers, on the brief).

City of Jersey City Department of Law, attorneys for
respondent (Chaunelle C. Robinson, on the brief).

PER CURIAM
Plaintiff J.R.1 is a former police officer employed by the Jersey City Police

Department (JCPD). He was deemed unfit for duty after undergoing numerous

psychological evaluations and eventually terminated. Thereafter, plaintiff filed

a complaint against the City of Jersey City (defendant) alleging various

violations of the Americans with Disabilities Act (ADA), 2 the New Jersey Law

Against Discrimination (LAD),3 and the New Jersey Civil Rights Act (CRA).4

After the conclusion of discovery, defendant moved for and was granted

summary judgment on all claims. We affirm.

I.

We derive our facts from the summary judgment record. Plaintiff is a

Hispanic male who began his career with the JCPD in July 2005. His complaint

contained a myriad of allegations which we need not repeat in detail but will

summarize to enable a discussion of the applicable law.

1
We use initials to preserve the confidentiality of court records concerning
domestic violence. R. 1:38-3(d)(9).
2
42 U.S.C. § 12101 to -12213. Plaintiff dismissed his ADA claims prior to the
summary judgment motion hearing.
3
N.J.S.A. 10:5-1 to -50.
4
N.J.S.A. 10:6-1 to -2.
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2
Plaintiff alleges that after he questioned the legality of a police detail at a

construction site in 2007, he was branded as a "rat" and his supervisors retaliated

against him and his peers at work distrusted him.

During his employment, plaintiff gained 150 to 160 pounds, which he

attributed to "[w]orking midnights, not sleeping well," and a "poor diet . . . ."

He stated he was harassed and ridiculed about his weight by fellow officers and

his superiors. Therefore, he complained to his captain about the hostile work

environment. According to plaintiff, despite him undergoing successful weight

reduction surgery in 2013, the harassment continued.

In 2008, plaintiff requested and was granted a transfer to a different

district of Jersey City. His new supervisors described him as "a marginal

performer who does as little [as] possible to get by under the radar" with

"atrocious" report writing skills. The supervisors also stated that numerous

officers would not work with plaintiff because he was a "malingerer" who

attempts to get out of any required police action and does not help others with

their work.

In October 2009, plaintiff was disciplined for failing to file an

investigation report as ordered by a superior, leaving his assigned post without

permission, utilizing a department vehicle without permission, and becoming

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belligerent and disrespectful when he was directed to file a report regarding his

failure to file the investigation report. Plaintiff waived his right to a hearing and

entered into a settlement agreement. He was found guilty of neglect of duty,

insubordination, failing to patrol his post, and failing to obey orders. He

received a penalty of a suspension of five working days.

In February 2010, plaintiff was involved in a domestic violence dispute

with his wife, following which his wife was granted a temporary restraining

order (TRO). Thereafter, plaintiff's service weapon was confiscated and he was

placed on modified duty. The following month, plaintiff's wife dismissed the

TRO and consented to the return of plaintiff's service weapon.

The JCPD requested plaintiff undergo a psychological examination to

assess his fitness for duty. After an interview and examination, Dr. Guillermo

Gallegos, Ph.D., found that plaintiff had "limited empathy for others," was

"loyal only to himself", was "not a team player", and "possess[ed] little tolerance

for frustration or disappointment." Dr. Gallegos concluded that plaintiff was "in

dire need of professional help . . . ." Because he was a potential danger to

himself and others, the psychologist opined that plaintiff should not possess a

firearm and he was not fit for duty.

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4
After undergoing psychological treatment for several months, plaintiff

was reevaluated and cleared to return to duty in September 2010.

A year later, plaintiff was involved in another domestic violence dispute

with his wife.5 He alleged his wife had struck him and he was granted a TRO.

However, after his wife filed assault charges against him and obtained a TRO,

plaintiff was placed on modified duty and his service weapon was confiscated. 6

The JCPD again referred plaintiff for a fitness for duty examination. On

March 22, 2012, Dr. Matthew Guller, J.D., Ph.D., examined and interviewed

plaintiff. The doctor noted plaintiff intended to begin counselling with Dr. Paul

Hriso, M.D. Although Dr. Guller found plaintiff fit for duty he noted that

plaintiff's "performance on the job is also of concern." He recommended that

JCPD "maintain some form of monitoring of [plaintiff]."

As noted by Dr. Guller, plaintiff was in the midst of several internal affairs

investigations. Earlier in March, disciplinary charges were lodged against him,

including failure to report for duty, lying to a superior about his shift hours,

leaving an assignment, neglect of duty, and failure to maintain a working

5
At the time, plaintiff and his wife were estranged and involved in divorce
proceedings.
6
Plaintiff and his wife agreed to mutually dismiss their TROs in October 2011.
The criminal charges were dismissed in January 2012.
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5
knowledge of orders and policies. Plaintiff had not reported to work on time

and left work early without permission for over seven months. Plaintiff admitted

he had not completed his required eight-hour shift for the past two years.

Plaintiff also violated JCPD's Policy on Social Media and Social

Networking Websites. The policy, issued in March 2012, prohibits JCPD

personnel from "posting any images or video that may reflect negatively on the

Department." The policy states that officers are not to engage in social media

while on duty and prohibits personnel from posting images or video of the

following: officers in uniform; undercover officers; the City Seal; the JCPD

name; badges; logos; patches; patrol vehicles; weapons; contraband; and tactical

instruments.

In April 2015, Sergeant Marc Gigante wrote a letter to the Internal Affairs

Unit (IAU) Commander, informing him that a woman filed a complaint

reporting plaintiff's inappropriate social media activity and what she perceived

as threats against her family in a social media message received from him.

Gigante found plaintiff had not made specific threats against the complainant or

her family.

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6
However, while investigating the complaint, Gigante documented fifty-

two violations of JCPD's social media policy on plaintiff's Instagram account.7

Gigante stated plaintiff had posted pictures of himself and other officers in

uniform on his Instagram account during his work shifts and in the course of his

duties. In many of the photos, plaintiff was wearing his uniform; in some

pictures he was brandishing weapons or other tactical instruments. Other photos

depicted JCPD vehicles and facilities.

The content of the Instagram posts caused Gigante concern because the

text revealed plaintiff's "aggression toward the general public . . . ." Gigante

found the content of the posts was "not the thinking of a mentally stable police

officer." One of the most egregious social media posts showed plaintiff in

uniform prominently displaying his middle finger with a caption that contained

racist and derogatory language. Plaintiff also referred to himself as "a dangerous

beast," and a predator such as a wolf or lion, and implied that normal citizens

were "sheep that he [would] stalk and prey on."

7
At the time plaintiff had twenty-four thousand followers on his Instagram
account.
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7
Gigante wrote that "[plaintiff] paints [JCPD] in a very negative light by

posting his personal beliefs and using extremely inappropriate language while

wearing his uniform and appearing in [JCPD] vehicles and facilities."

Disciplinary charges were again brought against plaintiff for violating

JCPD's social media policy, for conduct unbecoming an officer, and for failure

to obey laws, regulations, and orders. Gigante recommended that plaintiff

undergo an evaluation to determine if he was psychologically fit to remain a

police officer. Plaintiff was placed on modified duty and required to surrender

his service and personal weapons.

On April 24, 2015, Lewis Z. Schlosser, Ph.D., performed a psychological

examination and determined plaintiff was not fit for duty. Dr. Schlosser

administered eight psychological tests, conducted an in-depth diagnostic

interview, and reviewed plaintiff's prior evaluations, the internal affairs file,

disciplinary history, and numerous social media posts.

Dr. Schlosser concluded that plaintiff demonstrated "chronic and

pervasive patterns of poor integrity, poor social competence and teamwork,

impulse dyscontrol, and poor judgment; these are serious psychological

liabilities in a police officer." He found plaintiff was not credible because he

failed to disclose truthful information about his disciplinary history. In addition,

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the doctor stated that plaintiff "appears to be unable and/or unwilling to

comprehend the seriousness of his actions that resulted in him being referred for

a fitness for duty evaluation."

Based on psychological testing, background data from JCPD, and

plaintiff's presentation during the evaluation, Dr. Schlosser determined that

plaintiff possessed traits associated with Histrionic Personality Disorder with

Narcissistic personality features. He further opined that plaintiff's "life history

demonstrated that mental health treatment and disciplinary actions have been

unsuccessful at preventing negative incidents from recurring." He stated that

plaintiff's "psychological condition or impairment" would "likely . . . interfere

with his ability to safely and effectively function as a police officer" and

concluded that he was "[n]ot fit for duty with little chance of recovery." He

concluded by stating that "[plaintiff] suffers a degree of mental illness or

disability in his job-related conduct that is of sufficient magnitude so that the

undersigned finds the subject impaired and unlikely to be restored to duty in a

reasonable period of time."

On April 28, 2015, plaintiff was suspended without pay. Due to an

irregularity in the suspension procedure, the union attorney requested plaintiff

be placed on modified duty. Plaintiff was eventually placed on paid sick leave

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and awarded back pay for the time he was suspended without pay. Plaintiff was

paid his full salary until his termination in July 2016.

As stated above, plaintiff came under the care of Dr. Hriso in April 2015.

He was diagnosed with depression and placed on medication. Plaintiff saw Dr.

Hriso approximately once a month between April 2015 and June 2016. In

October 2015, Dr. Hriso sent a letter to JCPD characterizing plaintiff's prognosis

as "[f]air to poor." He advised that plaintiff was "currently unable to work" and

should be placed on sick leave indefinitely.

Thereafter, on November 12, 2015, JCPD referred plaintiff to Dr. Guller

who again evaluated plaintiff's fitness for duty. Dr. Guller administered seven

psychological tests, performed an in-depth diagnostic interview, and reviewed

the prior fitness for duty evaluations and plaintiff's social media activity. Dr.

Guller found plaintiff continued to "reflect poor judgment, impulsivity and

disregard for how his actions might be seen by others as intimidating and

problematic for the Department as a whole." He further opined that "[t]hese

tendencies were likely to persist, given [plaintiff's] apparent lack of insight,

continuance of problematic behaviors despite treatment," and the findings of

longstanding problematic personality traits that pose a "risk to the community

and officer safety."

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Dr. Guller concluded plaintiff was "[n]ot fit for duty with little chance of

recovery. [Plaintiff] suffers a degree of mental illness or disability in his job-

related conduct that is of sufficient magnitude so that the undersigned finds the

subject impaired and unlikely to be restored to duty in a reasonable period of

time."

On February 9, 2016, Dr. Hriso issued a report disagreeing with all of Dr.

Guller's conclusions. Dr. Hriso stated plaintiff was no longer on any medication

and was fully fit to return to work. He advised that plaintiff told him his job

performance was never an issue. The report does not state that Dr. Hriso

reviewed plaintiff's personnel file or his disciplinary history.

During his March 4, 2020 deposition, Dr. Hriso admitted he did not see

all of plaintiff's social media posts, including the post where plaintiff used

derogatory racial language and displayed his middle finger. Dr. Hriso also

conceded he did not conduct any personality disorder or depression tests. He

further advised he relied exclusively on plaintiff's personal statements

concerning his history with JCPD.

On March 15, 2016, Anthony Jenkins of New Pathway Counseling

Services examined plaintiff and concluded he was fit for duty. Jenkins' report

does not include any information about plaintiff's disciplinary history, the social

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media posts, or his prior fitness for duty evaluations. Jenkins admitted at his

deposition that he is a substance abuse counselor, that he does not diagnose

mental health disorders, and that he does not perform fitness for duty

evaluations. He conceded he did not review plaintiff's personnel file, his

disciplinary history, or his prior fitness for duty evaluations. Instead, Jenkins

relied exclusively on the information plaintiff gave him during the evaluation.

Thereafter, plaintiff requested JCPD to reinstate him. In response, JCPD

referred him for another fitness for duty evaluation. To counter plaintiff's

assertions that the prior evaluators were not objective, JCPD referred him to a

different facility and evaluator. This evaluation was conducted on April 28,

2016 by Betty McLendon, Psy.D.

In her May 24, 2016 report, Dr. McLendon diagnosed plaintiff with

Narcissistic Personality Disorder with Obsessive Compulsive, Histrionic, and

Paranoid features and traits. She found that plaintiff's "attempts to justify his

actions clearly denotes poor judgment." She also commented that "[t]he extent

to which he engaged in these [social media] postings and the content again

points to his poor judgment and the quality of his thought content suggest

grandiose ideals that were at times aggressive and out of touch with reality

. . . ." Dr. McLendon found plaintiff was not fit for duty.

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12
On June 1, 2016, defendant sent plaintiff a letter advising that his one year

of allotted paid sick leave would expire on July 1, 2016. The letter indicated

plaintiff would be terminated from his employment unless he: (1) returned to

work, requesting a reasonable accommodation if needed; (2) used compensatory

or vacation time; (3) took an unpaid leave of absence; or (4) retired.

On June 17, 2016, Dr. Hriso issued a report critiquing Dr. McLendon's

findings. He stated that plaintiff did not have a personality disorder and Dr.

McLendon's assessment to the contrary was "completely unsubstantiated."

On June 23, 2016, defendant's FMLA/ADA coordinator, Cameron Day,

emailed defendant's Medical Unit Commander, advising he had been in contact

with Dr. McLendon and plaintiff regarding other jobs plaintiff might perform.

Plaintiff told Day he was not requesting an ADA accommodation because

nothing was physically or mentally wrong with him. Plaintiff stated he was only

interested in returning to his job as a police officer.

Defendant reminded plaintiff on June 29, 2016 that he could use his

accrued vacation or compensatory time to remain on the payroll. That same day,

plaintiff wrote a letter to the Chief of Police requesting reinstatement to full

active duty as a Jersey City police officer.

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On July 11, 2016, JCPD informed plaintiff his paid sick leave had run out

on July 1. Because he had declined an accommodation and had not opted to use

his accrued compensatory or vacation time, the letter advised plaintiff he was

placed on unpaid leave effective July 1, 2016. Plaintiff was also offered and

rejected a disability pension.

On July 19, 2016, defendant wrote to plaintiff confirming the ADA

interactive process was terminated on June 23, 2016 because plaintiff refused an

ADA accommodation. JCPD terminated plaintiff's employment on July 22,

2016.

II.

Plaintiff filed his complaint in the Law Division in December 2017. Two

years later, in December 2019, defendant filed a motion to compel the deposition

of Dr. Hriso. The motion was granted and Dr. Hriso was ordered to comply with

the subpoena issued for his deposition. When Dr. Hriso failed to comply with

the order, defendant moved to bar Dr. Hriso's reports and testimony. The motion

was granted on February 14, 2020. The order stated, "should [p]laintiff make

Dr. Hriso available for deposition by March 6, 2020, [p]laintiff may file a motion

for reconsideration of this Order."

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Defendant moved for summary judgment on February 14, 2020. Two

weeks later, on March 2, plaintiff moved for reconsideration of the order barring

Dr. Hriso's reports and testimony. Plaintiff advised counsel and Dr. Hriso had

agreed to a deposition date of March 4. The reconsideration motion was

calendared after the summary judgment return date.

Although Dr. Hriso appeared for his deposition on March 4, 2020, he

informed defendant that he was only available for two hours. Defendant was

unable to complete Dr. Hriso's deposition in the short timeframe.

III.

In a comprehensive written decision issued March 13, 2020, the trial court

granted defendant's motion for summary judgment. In light of that ruling, the

court denied plaintiff's motion for reconsideration regarding Dr. Hriso's reports

and testimony as moot on March 27, 2020.

In his summary judgment decision, the motion judge considered each of

plaintiff's stated causes of action under the LAD. The court first addressed

plaintiff's assertion that he was discriminated against because of his disability

of being overweight. The trial court found plaintiff could not establish any

connection between his weight and his termination several years after

undergoing weight loss surgery. Moreover, even if plaintiff could demonstrate

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a prima facie case, the "evidence [was] overwhelming that [p]laintiff was not fit

for active duty as a police officer." The judge relied on plaintiff's psychological

evaluations, disciplinary history, domestic violence incidents, and social media

posts in violation of defendant's policies to support his conclusions.

The court also found plaintiff could not demonstrate discriminatory intent.

The judge noted defendant attempted to resolve the issues by sending plaintiff

to several different psychological facilities for evaluations and providing him

with the opportunity to demonstrate his fitness for duty. In addition, Day

contacted plaintiff advising him there were other available positions and

defendant offered him a disability pension. Plaintiff responded that he only

wanted employment as a police officer and did not want an accommodation.

The court also rejected plaintiff's claims of race-based treatment in

violation of the LAD. Plaintiff asserted he was treated differently than white

colleagues in JCPD who also posted "aggressive and vulgar" images on social

media. The judge noted that plaintiff had to prove a discriminatory motive to

satisfy his allegation of racially disparate treatment. He also had to show a direct

causal connection between the hostility displayed towards members of his class

and his termination.

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The trial court also found plaintiff failed to present any evidence that

defendant's actions regarding his employment were motivated by race. The

judge noted plaintiff's concession that he had not actually seen any posts by

other police officers on social media. The court concluded plaintiff had not

established a direct causal connection between his race and his termination as a

police officer.

Plaintiff also alleged that defendant retaliated against him for objecting to

the findings from the fitness for duty evaluations. The motion judge again found

plaintiff had not established a causal link between the protected activity and his

termination. The court noted plaintiff was removed from his employment due

to concerns about his mental health and the safety of the public. The judge

stated: "Plaintiff was investigated for conduct online which raised a question as

to his mental health and consequently, a question as to whether he was fit for

duty."

Lastly, the motion judge considered plaintiff's claims under the CRA.

Plaintiff contended defendant retaliated against him because he was perceived

as a potential whistleblower who would report allegations of police misconduct.

The court found "[i]t [was] unclear for what police misconduct [p]laintiff

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believes he may be labeled a 'potential whistleblower.'" The court further found

plaintiff had not presented any evidence to support this claim.

IV.

We review the grant of summary judgment de novo, applying the same

legal standard as the trial court. Green v. Monmouth Univ., 237 N.J. 516, 529

(2019) (citation omitted). Therefore, we consider "whether the competent

evidential materials presented, when viewed in the light most favorable to the

non-moving party in consideration of the applicable evidentiary standard, are

sufficient to permit a rational factfinder to resolve the alleged disputed issue in

favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J.

520, 523 (1995).

Summary judgment must be granted "if the pleadings, depositions,

answers to interrogatories and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact challenged and

that the moving party is entitled to a judgment or order as a matter of law." R.

4:46-2(c). "If there is no genuine issue of material fact, we must then 'decide

whether the trial court correctly interpreted the law.'" DepoLink Ct. Reporting

& Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013)

(citations omitted). We review issues of law de novo and accord no deference

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to the trial judge's conclusions on issues of law. Nicholas v. Mynster, 213 N.J.

463, 478 (2013).

On appeal, plaintiff contends the trial court erred in granting summary

judgment because he "raised disputed material questions of fact as to the

correctness of his termination, the issues regarding his work environment and

fitness for duty and whether appropriate efforts were made to accommodate him

as required under [the] LAD." In addition, plaintiff argues the court erred in

granting summary judgment on his CRA claims.

A.

We begin by addressing plaintiff's disability discrimination claim.

Plaintiff contends defendant discriminated against him because of a disability

by terminating his employment and defendant failed to reasonably accommodate

his disability. Plaintiff states the trial court mistakenly considered plaintiff's

alleged disability as his weight. He asserts his disability instead is the

perception that he is unfit for duty.

The LAD forbids "any unlawful discrimination against any person

because such person is or has been at any time disabled or unlawful employment

practices against any person, unless the nature and extent of the disability

reasonably precludes the performance of the particular employment." N.J.S.A.

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10:5-4.1. To analyze an alleged violation of the statute, New Jersey has adopted

the three-step burden shifting test articulated by the Supreme Court in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Anderson v. Exxon

Co., U.S.A., 89 N.J. 483, 492-93 (1982).

Under McDonnell Douglas, the plaintiff's ability to establish "a prima

facie case gives rise to a presumption of discrimination." Viscik v. Fowler

Equip. Co., 173 N.J. 1, 14 (2002) (citing Anderson, 89 N.J. at 493). Once the

plaintiff establishes a prima facie case, "the burden . . . going forward shifts to

the employer to articulate a legitimate, non-discriminatory reason for the

adverse employment action." Ibid. Thereafter, the "burden shifts back to the

plaintiff to show that the employer's proffered reason was merely a pretext for

discrimination." Ibid.

When a plaintiff alleges he was terminated based on a disability, he must

establish:

(1) a disability or the employer's perception that the
employee was disabled; (2) the employee remains
qualified to perform the essential functions of the job
and was performing at a level that met the employer's
expectations; (3) an adverse employment action
because of the disability or perceived disability; and (4)
the employer thereafter sought a similarly qualified
individual.

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[Wild v. Carriage Funeral Holdings, Inc., 458 N.J.
Super. 416, 429 (App. Div. 2019) (citing Grande v. St.
Claire's Health Sys, 230 N.J. 1, 17-18 (2017)).]

Here, plaintiff cannot establish the second prong of the test. He was not

performing the essential functions of a police officer and was clearly not

performing his duties at a level meeting defendant's expectations. In 2009,

plaintiff was reprimanded for failing to file an investigation report as ordered by

a superior, leaving his assigned post without permission, utilizing a department

vehicle without permission, and becoming belligerent and disrespectful when he

was directed to file a report on his failure to file the investigation report. In

2012, plaintiff was charged with failing to report for duty, leaving his

assignment without authorization, and lying about his work hours.

From March 2014 to April 2015, plaintiff was charged with neglect of

duty for failure to properly handle a call about a suicidal male, conduct

unbecoming an officer for using profanity to superior officers, failure to

investigate a domestic violence dispute, and violations of JCPD's social media

policy.

In 2015, an IAU investigation uncovered fifty-two violations of

defendant's social media policy, including pictures of plaintiff while in JCPD

uniform, brandishing weapons, and posting photos of JCPD vehicles and

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facilities. The captions of the posts were especially troubling and some featured

derogatory and racist language. Thereafter, plaintiff was placed on modified

duty pending the outcome of a psychological exam to determine his fitness for

duty.

From April 2015 to April 2016, plaintiff's fitness for duty was evaluated

on three separate occasions by three different doctors. Plaintiff's diagnosed

conditions of Narcissistic Personality Disorder and Histrionic Personality

Disorder caused all three mental health professionals to conclude he was not fit

for duty. One professional commented that plaintiff's illness was "of sufficient

magnitude so that the undersigned finds the subject impaired and unlikely to be

restored to duty in a reasonable period of time." Although a substance abuse

counselor opined plaintiff was fit for duty, he testified that he neither diagnosed

mental health disorders nor performed fitness for duty evaluations.

The record does not support plaintiff's claim that defendant discriminated

against him because of a perceived disability. To the contrary, defendant

accorded plaintiff a year of paid sick leave to permit him to address his

psychological issues. Even if plaintiff could establish a prima facie case, the

trial court found defendant presented a legitimate non-discriminatory reason for

the termination – numerous expert psychological evaluations concluded plaintiff

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was not fit to perform the essential functions of his job. We discern no reason

to disturb the court's conclusion that defendant demonstrated a reasonable basis

for plaintiff's termination, and that no genuine issues of material fact existed

concerning those grounds for termination.

B.

We are also satisfied that plaintiff did not demonstrate defendant failed to

accommodate his disability. "Although the LAD . . . does not specifically

address failure to accommodate, 'our courts have uniformly held that the [LAD]

nevertheless requires an employer to reasonably accommodate an employee 's

handicap.'" Royster v. N.J. State Police, 227 N.J. 482, 499 (2017) (citing

Potente v. Cnty. of Hudson, 187 N.J. 103, 110 (2006)) (quoting Tynan v.

Vicinage 13 of Superior Court, 351 N.J. Super. 385, 396 (App. Div. 2002)).

To determine what accommodation is necessary, the employer must

initiate an "interactive process" with the employee to "identify the potential

reasonable accommodations that could be adopted to overcome the employee 's

precise limitations . . . ." Tynan, 351 N.J. Super. at 400. To sustain a claim that

an employer failed to participate in the interactive process, an employee must

demonstrate:

(1) the employer knew about the employee's disability;
(2) the employee requested accommodations or

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assistance for her disability; (3) the employer did not
make a good faith effort to assist the employee in
seeking accommodations; and (4) the employee could
have been reasonably accommodated but for the
employer's lack of good faith.

[Id. at 400-01.]

Here, plaintiff never requested an accommodation. At all times, he only

asked to be reinstated as a police officer. In addition, plaintiff's claim that

defendant failed to participate in the interactive process lacks merit because

defendant contacted plaintiff to discuss whether there was a reasonable

accommodation. Plaintiff rejected the offer and responded he did not want any

accommodations.

As discussed above, defendant contacted plaintiff on June 1, 2016,

offering several options plaintiff might pursue once his allotted paid sick leave

expired. The letter informed plaintiff he should contact Day, the FMLA/ADA

coordinator, to "identify possible reasonable accommodations . . . to help

[plaintiff] perform the essential functions of a police officer . . . ."

In an email dated June 23, 2016, Day advised he had spoken to Dr.

McLendon, who informed him that although plaintiff "does not have the

capacity to work in a sensitive public safety position or any positions he would

be required to wield a weapon, he is capable of performing other job duties."

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Day also said he had spoken to plaintiff about an ADA accommodation and that

plaintiff responded he was "not requesting an ADA accommodation, because

nothing is physically or mentally wrong with him." Plaintiff informed Day that

the "only position he [was] interested in returning to" was police officer.

On July 19, Day wrote a letter to plaintiff memorializing plaintiff's refusal

to accept an ADA accommodation and the termination of the interactive process.

Plaintiff conceded during his deposition that he was offered a forty percent

disability pension; however, he refused to take it because "that would potentially

damage my litigation and trying to again be a police officer."

The record supports the trial court's finding that defendant clearly

attempted to engage in the interactive process with plaintiff. Defendant offered

plaintiff several options in lieu of termination, but plaintiff was only interested

in being reinstated as a police officer. Plaintiff refused a reasonable

accommodation and unilaterally ended the interactive process. Therefore, he

cannot establish a failure to accommodate claim.

C.

Plaintiff also asserts the trial court erred in granting summary judgment

on his claim of disparate treatment in violation of the LAD. He contends that

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"many of his white fellow police officers posted aggressive and vulgar images

on social media," however he was the only officer to be terminated.

The LAD prohibits discrimination because of race, color, national origin,

ancestry, age, sex, or nationality. N.J.S.A. 10:5-12. Disparate treatment can be

shown if an "employer simply treats some people less favorably than others

because of their race, color, religion, sex, or national origin." Gerety v. Atlantic

City Hilton Casino Resort, 184 N.J. 391, 398 (2005) (citation omitted).

A discrimination claim based on disparate treatment is also evaluated

under the McDonnell-Douglas framework discussed above. 411 U.S. at 802.

Plaintiff must demonstrate a prima facie case and prove a "discriminatory

motive[,] . . . although it can in some situations be inferred from the mere fact

of differences in treatment." Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55,

81 (1978).

To prove a prima facie case based upon discriminatory discipline, the

plaintiff must show: (1) he was a member of a protected group; (2) he was

discharged for violating a company policy; (3) non-minority employees were

not held to compliance with the company policy; and (4) the minority employee

was disciplined in conformity with company policy. Jason v. Showboat Hotel

& Casino, 329 N.J. Super. 295, 304-05 (App. Div. 2000) (citing Jackson v.

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Georgia-Pac. Corp., 296 N.J. Super. 1, 21 (App. Div. 1996)). "Especially

relevant to such a showing would be evidence that white employees involved in

acts . . . of comparable seriousness . . . were nevertheless retained." Id. at 305

(quoting McDonnell Douglas, 411 U.S. at 804) (alterations in original).

Plaintiff contends he received disparate treatment because he violated

JCPD's social media policy and was terminated, while other white officers

posted objectionable material and did not receive similar discipline. Plaintiff

supports his claim with screenshots of various JCPD police officers ' social

media posts which plaintiff contends violate the JCPD social media policy.

However, this isolated evidence alone cannot support plaintiff's claim that his

termination was motivated by race.

JCPD became aware of plaintiff's social media accounts when a civilian

complained about his posts and felt she and her family were threatened by their

content. Although the threats were determined to be unfounded, the IAU officer

reviewing the social media accounts found disciplinary charges were warranted

based on the derogatory and disturbing nature of the posts. The IAU also

determined the content of the posts warranted plaintiff undergoing mental health

examinations to determine his fitness for duty.

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Plaintiff has not presented any evidence to support his assertion that his

race was a factor which resulted in his termination. As discussed above, a

myriad of incidents arising out of plaintiff's actions on and off the job led to the

fitness for duty evaluations that resulted in his justified removal.

D.

Plaintiff also alleges the court erred in granting defendant summary

judgment on his retaliation claim. In his complaint, he alleged defendant

retaliated against him by "(1) fail[ing] to participate in the interactive

process/failure to accommodate his perceived disability; (2) subjecting him to

retaliatory disciplinary actions and punishment; (3) terminating his

employment; and (4) filing false and misleading information to the

Unemployment Board to delay his unemployment benefits."

To prove a claim for retaliation under the LAD, plaintiff must prove he

"'engaged in a protected activity known to the [employer,]' [he] was 'subjected

to an adverse employment decision[,]' and there is a causal link between the

protected activity and the adverse employment action." Battaglia v. United

Parcel Service, Inc., 214 N.J. 518, 547 (2013) (quoting Woods-Pirozzi v.

Nabisco Foods, 290 N.J. Super. 252, 274 (App. Div. 1996) (alterations in

original)).

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It is unclear what protected activity plaintiff references. In his complaint,

plaintiff alleged defendant retaliated after plaintiff complained about his fitness

for duty and suspension. However, in his appellate brief, plaintiff states the

protected activity is that "he was employed by . . . [d]efendant, that he was

performing his duties in a proper manner and that his social media activities

were appropriate and no different than any other employee of [d]efendant."

Plaintiff fails to explain how any of these activities are protected under the LAD.

Even if these are protected activities, plaintiff fails to show or explain how

these activities are causally linked to defendant's decision to terminate his

employment. As explained above, defendant presented a legitimate non-

discriminatory reason for terminating plaintiff.

E.

We turn next to plaintiff's contention that the trial court erred in granting

summary judgment on his CRA claims. Specifically, plaintiff asserts that

defendant "has a de facto policy, practice or custom of discouraging, threatening

and retaliating against police officers who report police misconduct and

corruption, commonly referred to [as] a 'code of silence.'" Plaintiff alleges that

pursuant to this policy, defendant retaliated against him because he was

perceived as a "whistleblower" and reported allegations of police misconduct.

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Plaintiff also asserts that defendant retaliated against him for "posting

personal pictures without any relation to [JCPD] on his private social media

accounts" in violation of his right to free speech.

The CRA provides a private cause of action for an individual subjected to

a deprivation of rights. N.J.S.A 10:6-2(c). New Jersey courts "look[] to federal

jurisprudence construing 42 U.S.C. § 1983 to formulate a workable standard for

identifying a substantive right under the [CRA]." Harz v. Borough of Spring

Lake, 234 N.J. 317, 330 (2018).

We discern no merit to plaintiff's whistleblower claim because he has not

demonstrated defendant had a de facto policy, practice or custom of

discouraging, threatening, and retaliating against police officers who reported

police misconduct.

A municipality "may not be sued under the [CRA] for an injury inflicted

solely by its employees or agents." Monell v. Dep't of Soc. Servs. of City of

New York, 436 U.S. 658, 694 (1978). "Instead, it is when execution of a

government's policy or custom, whether made by its lawmaker or by those whose

edicts or acts may fairly be said to represent official policy, inflicts the injury

that the government as an entity is responsible under the [CRA]." Ibid. See

Besler v. Bd. of Educ. of W. Windsor-Plainsboro Reg'l Sch. Dist., 201 N.J. 544,

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565 (2010) (stating that a municipality can be held liable for acts committed by

one of its employees pursuant to a governmental policy or custom that violates

the Constitution). A municipality may be liable for the action of an official who

"possesses final authority to establish municipal policy with respect to the action

ordered." Besler, 201 N.J. at 565 (quoting Stomel v. City of Camden, 192 N.J.

137, 146 (2007)).

Plaintiff has not presented competent evidence to support his claim that

defendant had a de facto policy of retaliation. He alleges in his complaint that

he complained about the legality of a police detail at a construction site in 2007.

He alleged that after making this complaint, "every supervisor retaliated against

him and his fellow police officers distrusted him." However, he did not produce

any evidence to support these allegations.

In addition, plaintiff has not established any causal relationship between

his complaint concerning the police detail and his termination more than nine

years later. Not only did plaintiff fail to present any evidence establishing

defendant maintained a de facto policy to keep police officers from reporting

police misconduct, he did not name any individual who possessed the authority

to establish the custom or practice of retaliation.

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Plaintiff's First Amendment claim also fails because defendant has a right

to restrict plaintiff's speech when the speech undermines its ability to run an

effective and efficient police department.

"[T]o plead a claim of retaliation under the First Amendment, a plaintiff

must allege: (1) constitutionally protected conduct, (2) retaliatory action

sufficient to deter a person of ordinary firmness from exercising his

constitutional rights, and (3) a causal link between the constitutionally protected

conduct and the retaliatory action." Thomas v. Indep. Twp., 463 F. 3d 285, 296

(3d Cir. 2006) (quoting Mitchell v. Horn, 318 F. 3d 523, 530 (3d Cir. 2003)).

When a public employee sues a government employer under the First

Amendment, the "test is whether the employee's speech may be 'fairly

characterized as constituting speech on a matter of public concern.'" Karins v.

City of Atlantic City, 152 N.J. 532, 549 (1998) (quoting Connick v. Myers, 461

U.S. 138, 146 (1983)). If the public interest prong is satisfied, the court must

balance the employee's interest in free speech against the "government's interest

in the effective and efficient fulfillment of its responsibilities to the public. "

Ibid. (quoting Connick, 461 U.S. at 150). "Racist speech or conduct . . . is not

purely private [speech] when made in connection with the performance of public

service . . . ." Id. at 563. "When someone who is paid a salary so that [he] will

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contribute to an agency's effective operation begins to do or say things that

detract from the agency's effective operation, the government employer must

have some power to restrain [him]." Borough of Duryea, Pa. v. Guarnieri, 564

U.S. 379, 386-87 (2011). Therefore, "where the government is employing

someone for the very purpose of effectively achieving its goals, such restrictions

may well be appropriate." Waters v. Churchill, 511 U.S. 661, 675 (1994).

Plaintiff was a JCPD police officer who posted numerous photos on social

media in violation of JCPD's social media policy. Many of these photos were

posted while plaintiff was on duty and in JCPD uniform. Some of the captions

that accompanied these photos included racist, derogatory, and threatening

language. Plaintiff exercised an extreme lack of judgment in publishing these

photos and painted the JCPD in a bad light. Additionally, his actions hindered

JCPD's ability to run a credible and effective police department. Because

plaintiff's speech cannot be considered protected speech, defendant's decision to

discipline him based on the numerous violations of the social media policy did

not violate his First Amendment rights.

F.

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Plaintiff contends the trial court erred when it decided the motion for

summary judgment before it considered the merits of the motion for

reconsideration concerning discovery issues. We see no abuse of discretion.

In his decision granting summary judgment, the trial judge acknowledged

Dr. Hriso's opinion that plaintiff was fit for duty. He also noted Dr. Hriso's

reports were barred because he had failed to comply with a court order. Even

when Dr. Hriso appeared for his deposition, he left after two hours, leaving

defendant unable to complete its questioning. It is clear from the judge's

analysis of the claims and the application of the law that any further testimony

from Dr. Hriso would not have made a difference in the judge's ultimate

conclusions.

As the court stated, even if plaintiff were able to prove his prima facie

case, defendant had shown substantial non-discriminatory proof to support its

decision to terminate plaintiff. Furthermore, Dr. Hriso admitted at his

deposition that he did not request plaintiff to do any psychological testing as

conducted by the other doctors, he did not look at all of plaintiff's social media

posts, and he based his evaluation solely on plaintiff's self-described personal

history.

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There was no abuse of discretion in determining the summary judgment

motion before considering the motion for reconsideration.

To the extent we have not commented on them specifically, all other

points plaintiff raises on appeal lack sufficient merit to warrant discussion. R.

2:11-3(e)(1)(E).

Affirmed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4697171. Public record. Not legal advice.