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.
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 ...