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ERIT v. JUDGE

April 18, 1997

CHARLES G. ERIT, Plaintiff,
v.
JUDGE, INC., et al., Defendants.



The opinion of the court was delivered by: ORLOFSKY

 ORLOFSKY, District Judge:

 Defendants have moved for summary judgment pursuant to Fed. R. Civ. P. 56 on Plaintiff's complaint. Jurisdiction is conferred upon this Court by 28 U.S.C. § 1331. In this employment discrimination case, Plaintiff seeks a determination by this Court whether his termination from employment was in violation of federal and state law. As a threshold matter, however, this case presents the narrow issue, recently addressed by the Third Circuit in McNemar v. Disney Store, Inc., 91 F.3d 610 (3d Cir. 1996), of whether a plaintiff is judicially estopped from contending that his or her termination was in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., and the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. §§ 10:5-1, et seq., when at the time of the discharge the plaintiff had filed applications for disability benefits claiming that he or she was disabled and could not work. For the reasons which follow, this Court concludes that Plaintiff's ADA and NJLAD claims are barred by the doctrine of judicial estoppel. I also conclude that Defendants are entitled to summary judgment on the remaining claims set forth in the complaint. *fn1"

 I. Facts and Procedural Background

 Shortly after the incident, on October 27, 1993, Plaintiff applied for, and received disability benefits from the State of New Jersey. (Defendants' Appendix ("D.A."), Exs. H,I,J). In connection with Plaintiff's application for disability benefits from the State of New Jersey, Plaintiff stated in sworn certifications that he "was unable to work during the period for which benefits are claimed. . ." (D.A., Ex.H), and that he has been "continuously disabled since the date of [the incident]." (D.A., Exs. I,J).

 On July 28, 1994, Plaintiff applied for Social Security Disability Insurance Benefits. In support of his application for such benefits, Plaintiff likewise certified that he "became unable to work because of [his] disabling condition on September 19, 1993," and that he "[is] still disabled." (D.A., Ex.K). In addition, on the application for Supplemental Security Income from the Social Security Administration, Plaintiff stated that he "[is] disabled," and that "the disability began on September 19, 1993." (D.A., Ex.L).

 On April 22, 1996, Plaintiff filed this complaint, arising out of Judge's termination of his employment. The complaint advances several theories upon which Plaintiff relies in contending that his termination was violative of both federal and New Jersey law. Specifically, Plaintiff alleges that in terminating his employment, the Defendants unlawfully discriminated against him on the basis of his disability, in violation of the ADA, (First and Eighth Counts), and the NJLAD (Second, Third and Eighth Counts).

 Plaintiff further contends that the Defendants violated his right to procedural due process, (Fourth Count), and breached a contract of employment between the Defendants and him. (Fifth Count). In the Sixth Count, Plaintiff also alleges that the Defendants are liable for conversion, and in the Seventh Count, Plaintiff contends that the Defendants violated the New Jersey Consumer Fraud Act, N.J.S.A. §§ 56:8-1, et seq. Finally, Plaintiff maintains that he has suffered damages as a result of the Defendants' intentional and negligent infliction of emotional distress. (Ninth and Tenth Counts, respectively). On March 26, 1997, Defendants moved for summary judgment on Plaintiff's complaint.

 II. Summary Judgment Standard

 A party seeking summary judgment must "show that there is no genuine issue as to any material fact and that [he or she] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56 (c). See also Hersh v. Allen Products. Co., 789 F.2d 230, 232 (3d Cir. 1986); Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). A district court must grant summary judgment when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir. 1996). In deciding whether there is a disputed issue of material fact the Court must view all inferences, doubts and issues of credibility in favor of the non-moving party. See Hancock Indus. v. Schaeffer, 811 F.2d 225, 231 (3d Cir. 1987) (citation omitted); Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983), cert. denied, 465 U.S. 1091, 79 L. Ed. 2d 910, 104 S. Ct. 2144 (1984). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Moreover, Federal Rule of Civil Procedure 56(e) provides:

 Fed. R. Civ. P. 56 (e).

 Under this rule, a defendant must be awarded summary judgment on all properly supported issues identified in its motion, except for those for which a plaintiff has provided evidence to show that a question of material fact remains. Put another way, once the moving party has properly supported its motion, "its opponent 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, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). A summary judgment movant may meet its burden by showing that the opposing party is unable to meet its burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Nonetheless, defendants, as the moving parties on the motion, bear the initial responsibility of demonstrating the absence of a genuine issue of material fact. Id.

 III. Discussion

 The issue before this Court is whether Judge's termination of Plaintiff's employment was in violation of either federal or New Jersey law. Plaintiff's complaint sets forth numerous claims, each of which will be considered in turn to determine whether it can withstand Defendants' motion for summary judgment. Because the Court finds that the undisputed material facts contained in the summary judgment record indicate that Plaintiff cannot establish that Judge's termination of Plaintiff's ...


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