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Davidson v. Atlantic City Police Dept.

June 28, 1999


The opinion of the court was delivered by: Simandle, District Judge



This matter is before the court on the motions for summary judgment of defendants the Atlantic City Police Department ("ACPD") and Mayor James Whelan, Michelle A. Polk, John Mooney, Nicholas V. Rifice, and Cornelius Kane, pursuant to Federal Rule of Civil Procedure 56(b). Plaintiff, David Davidson, Jr., alleges that defendants discriminated against him in violation of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 et seq., by refusing to grant him an extended leave of indefinite duration to recover from psychological problems that made it impossible for him to perform the essential functions of his job as a police officer.

The court finds that Davidson has not met his burden of demonstrating that he is a "qualified individual with a disability" within the meaning of the ADA because he has not shown that he could perform the essential functions of his job as a police officer with or without reasonable accommodation. Davidson concedes that he could not have performed the essential functions of his job without reasonable accommodation, and the ADA does not require an employer to grant the "reasonable accommodation" Davidson requested -- extended leave of indefinite duration in the hope that he would be able to perform the essential functions of his job at some uncertain point in the future, which turned out to be approximately one year. This finding also precludes liability under the LAD, which follows the same analytical framework as the ADA with respect to allegations of discrimination based upon a handicap. Accordingly, the court grants defendants' motions for summary judgment and dismisses Davidson's Amended Complaint with prejudice.


In October 1995, an anonymous letter complaining of poor working conditions on the Bravo Platoon (4:00 p.m. to midnight) and criticizing the shift commander, Captain Polk, was circulated to the Atlantic County Prosecutor's Office, the Mayor of Atlantic City, and the Chief of the ACPD. There was widespread speculation throughout the ACPD that Davidson, an eleven year veteran of the ACPD who had served as a patrolman on the Bravo Platoon under Polk for six years, was the author of the letter.

On October 22, 1995, Polk suspended Davidson for three days for reporting to work without his service weapon and radio and for insubordination. (Rifice Ex. 4.) At the time, Davidson considered the suspension unwarranted and believed that Polk was retaliating against him based on her suspicion that he had written the anonymous letter, but during his deposition in this case Davidson conceded that the he deserved the suspension because he had reported to work without his equipment and because certain remarks he made when confronted about not having his equipment could have been construed as insubordinate. (Davidson Tr. at 82:4-19.)

After Davidson served his suspension and returned to work in early November 1995, he developed symptoms of stress, anxiety and depression as a result of widespread rumors throughout the ACPD that he was the author of the anonymous letter. On November 8, 1995, Davidson requested permission to take six vacation days from November 9 through November 17, 1995, which was approved by Polk. (Rifice Ex. 10.)

On November 15, 1995, Davidson was examined by Peter Kuponiyi, M.D., a physician affiliated with the ACPD. Dr. Kuponiyi determined that Davidson was "consumed with distrust in his department," was experiencing "intense feelings of alienation," and was "pathologically fearful of what might happen if he needs `a back up' vehicle on patrol, especially since he is referred to as `a rat.'" (Rifice Ex. 13.) Dr. Kuponiyi recommended that Davidson surrender his weapon "pending resolution of the crisis" and that Davidson "be evaluated by a psychiatrist . . . before returning to work." (Id.) In fact, Davidson began treatment with Dr. Suzanne J. Zipes on November 15, 1995.

On November 16, 1995, Sergeant James T. Brady retrieved Davidson's service weapon and had Davidson sign a request for extended sick leave. (Rifice Ex. 14.) Specifically, Davidson requested permission to borrow 15 days sick time from his 1996 allotment because he was "currently unable to work due to stress." (Rifice Ex. 12.) Davidson also requested that he be granted "extended sick leave for the duration of [his] illness" upon the expiration of the 15 sick days. (Id.) Davidson's request to borrow 15 days sick leave from his 1996 allotment and his request for extended sick leave was marked "Approved" on November 20, 1995. (Id.)

On November 26, 1995, Davidson was examined by Gary M. Glass, M.D., at the ACPD's request. Dr. Glass concluded that Davidson "suffers from no substantial psychiatric or emotional condition, except perhaps a Narcissistic Personality Disorder." (Rifice Ex. 16.) Dr. Glass specifically expressed his belief that Davidson was not suffering from "any psychiatric or emotional condition that would impair his ability to function adequately in his role as a law enforcement officer." (Id.)

On December 15, 1995, Captain Gerald W. Tibbetts telephoned Davidson to communicate a direct order from Rifice to report for work that day. (Rifice Ex. 17.) Davidson reported for duty that afternoon, but upon his arrival advised Sergeant James Goss that he needed to leave to check himself into the Psychiatric Intervention Program at the Atlantic City Medical Center. (Rifice Ex. 18.) Goss sent Davidson to the hospital, but contacted Davidson by radio while Davidson was on his way to the hospital and advised him to return to roll call after Goss was advised by Inspector Kane that Davidson "had been cleared to return to work by the city psychiatrist." (Id.) Davidson returned to work, but told Goss he was unable to work. (Id.) Goss sent Davidson home, advising him that he would be carried as "0" for the shift because he had no sick time available. (Id.)

On December 20, 1995, Davidson requested extended sick leave "as a result of work related depresses, and anxiousness (sic.)." (Rifice Ex. 21.) Davidson enclosed a letter from Dr. Zipes, who advised that she had been treating Davidson since November 15, 1995. (Rifice Ex. 22.) Dr. Zipes explained that Davidson was suffering from "depression and anxiety" as a result of "intra-departmental deviciveness (sic.) which has exacerbated any minimum symptoms of depression he may have had" before beginning treatment with her. (Id.) Zipes specifically requested "four weeks of medical leave" for Davidson, at which time she would "re-evaluate the situation as [Davidson] is very anxious to return to work." (Id.)

On December 27, 1995, Rifice granted Davidson extended sick leave through February 1, 1996. (Rifice Ex. 23.) Rifice requested that Davidson's counselor (Zipes) supply a weekly progress report, and indicated that Davidson's status would be re-evaluated on February 1, 1996. (Id.)

On January 3, 1996, Zipes provided Davidson with a doctor's note authorizing his return to work with "No Restrictions" on January 10, 1996. (Rifice Ex. 24.) Thus, on January 3, 1996, Rifice prepared a personnel order transferring Davidson from the inactive roster to the Charlie Platoon, effective January 10, 1996. (Rifice Ex. 27.)

Davidson did not report for work on January 10, 1996. (Rifice Ex. 28.) Davidson contacted Sergeant Brady and requested a personal day, but after Brady advised him that he did not have authority to grant a personal day, Davidson chose to take a sick day. (Id.) When Captain Mooney arrived at work and learned of the situation, he contacted Davidson by telephone to ask why Davidson had not reported for duty. (Id.) After initially declining to explain his reasons for requesting a personal day, Davidson explained that he had filed a hardship grievance regarding his assignment to the Charlie Platoon. (Id.) Mooney told Davidson that he would carry him sick for that day, but that he would list Davidson as "Not At Roll Call" if failed to report for future shifts while processing his hardship grievance. (Id.)By letter dated January 12, 1996, Dr. Zipes informed the ACPD that Davidson "states he is unable to work due to new stressors in his life." (Rifice Ex. 29.) Zipes further stated that Davidson "was anxious to return to Platoon Bravo on the 4-12 shift before his medical leave expired on 1/10/96," but that Davidson had "articulated that he is not willing to work 12 am to 8 am due to his family ...

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