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BERARDI v. DELAWARE RIVER PORT AUTHORITY

June 7, 2005.

DINO J. BERARDI, JR., Plaintiff,
v.
DELAWARE RIVER PORT AUTHORITY, Defendant.



The opinion of the court was delivered by: ROBERT KUGLER, Magistrate Judge

OPINION

In this civil action, plaintiff Dino J. Berardi, Jr. brings claims against his former employer, defendant Delaware River Port Authority ("Port Authority" or "DRPA"), under the Americans with Disabilities Act ("ADA") and the Rehabilitation Act of 1973 ("Rehabilitation Act"). Berardi's verified complaint alleges that he was absent from work without authorization on July 13, 2002 due to major depressive (bipolar) disorder, that his depression constitutes a "disability" under the relevant statutes, and that the Port Authority terminated his employment solely because of that unauthorized absence. Berardi argues that the Port Authority thereby discriminated against him because of his disability in violation of the ADA, 42 U.S.C. § 12112, and the Rehabilitation Act, 29 U.S.C. § 794(a).

This matter comes before the Court upon the Port Authority's motion for summary judgment. Because this Court concludes that Berardi was not "disabled" as defined by the ADA and the Rehabilitation Act, summary judgment will be granted in favor of the Port Authority.

  I. BACKGROUND FACTS

  Berardi was employed as a police officer with the Port Authority Bureau of Public Safety's Police Department from January 1991 until September 13, 2002. While thus employed, Berardi received several official commendations and awards, including "Police Officer of the Month" in March 1995. He was promoted to Sergeant of Police in January 2001 and originally assigned to the Walt Whitman Bridge. Berardi was transferred to the Benjamin Franklin Bridge in May 2002.

  Berardi, who was diagnosed with Type II diabetes around the time he began working for the Port Authority in 1991, began to feel depressed in late 2001. He missed work on multiple occasions throughout 2002 without notifying a supervisor that he would be absent. These absences violated Rules 26 and 48 of the Port Authority's Police Department Rules.

  In response to absences that occurred during January, February, and April, the Port Authority held a "pre-disciplinary hearing" with Berardi on April 15, 2002. At that hearing, Berardi revealed that he felt "depressed" and that he had some "personal problems." Berardi received an eight-day suspension on April 18, 2002 for the unexcused absences.

  After the suspension, Berardi had a private discussion with Police Chief Vincent Borrelli. Borrelli recalled that Berardi said he was having "personal problems," "felt depressed," and was "seeing someone" for his depression. In early June, 2002, Borrelli advised Lt. Albert DeColli that Berardi "did have a depression problem [and] that he was seeking some type of help and assistance."

  The Port Authority held a second pre-disciplinary hearing with Berardi on July 8, 2002 for his further unexcused absences during June of that year. At that hearing, Berardi again spoke of his depression, telling the officials present that he felt as if he were "losing his mind." Following the hearing, Captain Richard Sullivan told Berardi that he too suffered from depression, and that there was "no shame" in obtaining professional help and/or taking medication to treat the condition.

  On July 18, 2002, Berardi sought treatment with Bernard Stiefel, a licensed psychotherapist. Stiefel determined that Berardi needed a psychiatric evaluation, "as he may be bipolar and in need of medication therapy to stabilize his moods." Stiefel referred Berardi to Dr. John Charles Ouligian, a psychiatrist.

  Berardi received a fifteen-day suspension from the Port Authority on July 24, 2002 for his June absences. The Port Authority informed him at that time that a third pre-disciplinary hearing, in response to an unexcused absence of July 13, 2002, would be scheduled for early August.

  On July 30, 2002, Berardi attended his first appointment with Dr. Ouligian. Dr. Ouligian diagnosed Berardi as suffering from "major depressive disorder," prescribed him the anti-depressant Celexa, and told him to stay out of work for the next three weeks. Berardi gave Dr. Ouligian's note placing him out of work to Brenda Greene, the Port Authority's Disability Claims Administrator. At Berardi's request, the Port Authority rescheduled his third pre-disciplinary hearing to September 11, 2002.

  Berardi attended another appointment with Dr. Ouligian on September 9, 2002. Dr. Ouligian provided Berardi with a "Certificate of Health Care Provider," along with a completed application to invoke the Family and Medical Leave Act ("FMLA"). In the certificate, Dr. Ouligian wrote that Berardi "has a major depressive disorder. Problems with concentration, labile [up and down] mood." Dr. Ouligian noted that Berardi suffered from depression at that time, had been "incapacitated" by it for FMLA purposes since July 30, 2002, and would remain incapacitated until September 30, 2002.

  Berardi delivered the FMLA request to Greene on September 11, 2002. He advised Greene that he could not attend the pre-disciplinary hearing scheduled for that day, as Dr. Ouligian had advised him ...


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