United States District Court, D. New Jersey, Camden Vicinage
June 7, 2005.
DINO J. BERARDI, JR., Plaintiff,
DELAWARE RIVER PORT AUTHORITY, Defendant.
The opinion of the court was delivered by: ROBERT KUGLER, Magistrate Judge
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
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
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,
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 that he was "mentally and physically unable to do
The Port Authority held the third pre-disciplinary hearing
without Berardi on September 11, 2002. Chief Executive Officer
Paul Drayton, Jr. issued a decision at that hearing regarding
Berardi's unexcused absence of July 13, 2002. Drayton reported
the decision in a letter to Berardi dated September 13, 2002. The
letter noted that because Berardi's FMLA request "appeared valid
on its face," all unexcused absences Berardi had accumulated
between July 30, 2002 and September 30, 2002 were "removed from
disciplinary consideration" at the hearing. However, the letter
provided, Berardi would be terminated due to his absence of July
13, 2002 "in conjunction with [his] disciplinary history related
to prior `no call/no-show' and abuse of sick leave incidents
during year 2002."
Berardi testified at deposition that he has been able to work
without restrictions since September 30, 2002. II. ANALYSIS
Summary judgment is only appropriate where the Court is
satisfied that "there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter
of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 330 (1986). A genuine issue of material fact exists
only if "the evidence is such that a reasonable jury could find
for the nonmoving party." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). The burden of establishing the nonexistence
of a "genuine issue" is on the party moving for summary judgment.
Celotex, 477 U.S. at 330.
The moving party must first satisfy a burden of production,
which "requires the moving party to make a prima facie showing
that it is entitled to summary judgment." Celotex,
477 U.S. at 331. Where the burden of persuasion at trial would be on the
nonmoving party, the moving party may satisfy its burden of
production by either (1) submitting affirmative evidence that
negates an essential element of the nonmoving party's claim; or
(2) demonstrating to the Court that the nonmoving party's
evidence is insufficient to establish an essential element of the
nonmoving party's case. Id.
If the moving party has not fully discharged its initial burden
of production, its motion for summary judgment must be denied.
Celotex, 477 U.S. at 332. If the moving party satisfies its initial burden, "the nonmoving party must come
forward with specific facts showing that there is a genuine issue
for trial" to avoid summary judgment in favor of the moving
party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 585-86 (1986).
Here, the Port Authority argues that it is entitled to summary
judgment for two reasons. First, it argues that Berardi was not
"disabled" as defined by the ADA and the Rehabilitation Act.
Second, it argues that even if Berardi were "disabled" as defined
by the relevant statutes, his termination was for a legitimate
nondiscriminatory reason, viz., "repeated violations of DRPA's
Policies, Procedures, and Work Rules." (Def.'s Br. Supp. Summ. J.
"Whether suit is filed under the Rehabilitation Act or the
[ADA], the substantive standards for determining liability are
the same." McDonald v. Commonwealth of Pa., Dep't of Pub.
Welfare, Polk Center, 62 F.3d 92, 95 (3d Cir. 1995). Analysis of
a claim under either statute involves a three-step process.
First, in order for a plaintiff to make out a prima facie case
of discrimination, he bears the burden of demonstrating that he
(1) has a disability; (2) was otherwise qualified to perform the
essential functions of his job, with or without reasonable
accommodations; and (3) was nonetheless terminated. See
Williams v. Phila. Hous. Auth. Police Dep't, 380 F.3d 751, 761 (3d Cir. 2004) (ADA); Shiring v. Runyon,
90 F.3d 827, 831 (3d Cir. 1996) (Rehabilitation Act). Second, if the
plaintiff makes out a prima facie case, the burden shifts to the
defendant to provide a non-discriminatory explanation for the
employment decision. See Walton v. Mental Health Ass'n of S.E.
Pa., 168 F.3d 661, 668 (3d Cir. 1999). Third, if the defendant
provides a non-discriminatory explanation, the burden shifts back
to the plaintiff to "point to some evidence, direct or
circumstantial, from which a fact finder 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. (quoting Lawrence v. Nat'l Westminster
Bank N.J., 98 F.3d 61, 66 (3d Cir. 1996)).
A. PRIMA FACIE CASE
Under the ADA and the Rehabilitation Act, a "disability" is (a)
a physical or mental impairment that substantially limits one or
more major life activities, (b) a record of such an impairment,
or (c) being regarded as having such an impairment. See
29 U.S.C. § 705(20)(B); 42 U.S.C. § 12102(2). The Port Authority
argues that it is entitled to summary judgment because the record
before this Court is not such that a reasonable jury could find
Berardi had a disability under any of these three definitions.
a. Physical or Mental Impairment that Substantially Limits One
or More Major Life Activities
"Merely having an impairment does not make one disabled. . . .
Claimants also need to demonstrate that the impairment limits a
major life activity." See Toyota Motor Mfg., Ky., Inc. v.
Williams, 534 U.S. 184, 195 (2002). An inability to work for a
period of limited duration does not establish substantial
limitation of a major life activity. See McDonald,
62 F.3d at 96. Further, "if a person is taking measures to correct for, or
mitigate, a physical or mental impairment, the effects of those
measures . . . must be taken into account when judging whether
that person is `substantially limited' in a major life
activity. . . ." See Sutton v. United Air Lines, Inc.,
527 U.S. 471, 482 (1999).
In its brief, the Port Authority points to evidence (in the
form of Berardi's own deposition testimony) that Berardi's
ability to work is unimpaired when his depression is treated.
See Def.'s Br. at 31. The Port Authority also notes that the
record contains no evidence that Berardi "suffered any
limitations with regard to any other activities of daily living."
See id. at 29. In response, Berardi points to evidence that,
before treatment, he was severely impaired. See Pl.'s Opp. Br.
at 29. However, under Sutton, this Court is required to
consider Berardi's post-treatment condition in determining whether
Berardi is substantially limited in a major life activity.
Because the record establishes that Berardi has been able to work
without restriction after receiving treatment for depression, and
because the record contains no evidence that Berardi's depression
and diabetes affected any of his major life activites other than
work, a reasonable jury could not find that Berardi is
substantially limited in a major life activity.
b. Record of Impairment
Because the record shows that Berardi has been able to work
without restriction after receiving treatment, and because the
record contains no evidence that Berardi's depression and
diabetes affected any of his major life activities other than
work, a reasonable jury could not find that Berardi has a record
of substantial limitation in a major life activity. See Olson
v. Gen. Elec. Astrospace, 101 F.3d 947, 953 (3d Cir. 1996)
(holding that because evidence established plaintiff was not
substantially limited in a major life activity, plaintiff could
not establish that he had a history of being disabled).
c. Regarded as Having a Disability
An analysis of this claim "focuses not on [Berardi] and his
actual abilities, but rather on the reactions and perceptions of
the persons interacting or working with him." See Kelly v.
Drexel Univ., 94 F.3d 102, 108-09 (3d Cir. 1996). Thus, the relevant issue here is whether the people working and interacting
with Berardi viewed him as being substantially limited in one or
more major life activities.
Berardi argues that his co-workers at the Port Authority knew
that he suffered from depression and diabetes. See Pl.'s Opp.
Br. at 35. However, "the mere fact that an employer is aware of
an employee's impairment is insufficient to establish . . . that
the employer regarded the employee as disabled. . . ." See
Kelly, 94 F.3d at 109. Because the record establishes only that
Berardi's co-workers were aware of his depression and diabetes,
and not that they viewed him as being substantially limited in
one or more major life activities, a reasonable jury could not
find that anyone at the Port Authority viewed Berardi as
B. REMAINING ELEMENTS
Because Berardi has not raised a genuine issue as to whether he
was "disabled" under the relevant statutes, this Court need not
reach the other elements of a prima facie case of discrimination,
the remainder of the burden-shifting analysis under the ADA and
Rehabilitation Act, or the Port Authority's suggestion that
Berardi's opposition to its motion should be disregarded as
untimely. III. CONCLUSION
Because a reasonable jury could not find, based on the record
before this Court, that Berardi has a "disability," the Port
Authority's motion for summary judgment will be granted. The
accompanying Order shall issue today.
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