The opinion of the court was delivered by: WILLIAM BASSLER, District Judge
Plaintiff Marshall Berry ("Berry") allegedly injured his back
as the result of an accident during a training exercise with his
former employer, the Morris County Sheriff's Department ("MCSD").
Years later, Berry took a leave of absence from MCSD due to the
deteriorating condition of his back. In December 1998, MCSD suspended Berry within two weeks of his resumption of
work. According to Berry, MCSD engaged in improper conduct
regarding his disability and race, ultimately resulting in his
termination. As a result, Berry filed this lawsuit against MCSD
and various supervisors and co-workers (collectively
The Court exercises jurisdiction pursuant to 28 U.S.C. §§ 1331
and 1332. Venue is proper in the District of New Jersey pursuant
to 28 U.S.C. § 1391.
Pursuant to Fed.R.Civ.P. 56, Berry has filed a motion for
partial summary judgment as to liability only on the claims of
discrimination based on disability. The defendants have moved for
summary judgment on all nineteen counts of the Complaint. Both
parties have also filed in limine motions seeking to exclude
particular evidence. For the following reasons, the Court
denies Berry's motion for summary judgment, grants in part and
denies in part Defendants' motion for summary judgment,
denies Defendants' motions in limine, and denies Berry's
motion in limine.
Marshall Berry is an African American male. (Pl. App. in Opp.
to Def. Mot. for Summ. J. ("Pl. Opp. App."), Vol. III, Ex. II,
Berry Aff., ¶ 2.) On May 16, 1977, he began working for the MCSD
as a provisional corrections officer in the Morris County
Correctional Facility ("Morris County Jail"). (Def. Statement of Material Facts ¶ 1.) Berry was promoted to the position of
corrections sergeant on January 20, 1984. (Id. ¶ 2.)
Berry injured his back as the result of an accident during an
MCSD training exercise on August 3, 1984. (Id. ¶ 3.) In March
1997, Berry began experiencing pronounced back pain. (See id.
¶ 4; Pl. Statement of Undisputed Facts ¶ 9.) Due to the back
pain, Berry was out of work from March 3, 1997 through December
14, 1998. (Def. Statement of Material Facts ¶ 6.) During this
time, Berry underwent back surgery for a L3-S1 decompression and
bone fusion on March 3, 1998. (Id. ¶ 5.)
On October 12, 1999, Dr. Michael G. Yaffe conducted an
independent medical examination of Berry. (Ltr. from Yaffe to
DeJean of 10/12/99.) Dr. Yaffe concluded that Berry "is able to
return to work without limitations except to avoid heavy
On December 9, 1998, Dr. Carl P. Giordano cleared Berry to
return to work "in an unrestricted fashion as a correction's
[sic] sergeant," despite noting that Berry "continue[d] to have
some back pain and some lower extremity dysesthesias." (Ltr. from
Giordano to Leibu of 12/9/98.) Berry returned to work as a
corrections sergeant on December 14, 1998. (Def. Statement of
Material Facts ¶ 7.) However, Chief Ralph McGrane of the Morris
County Jail allegedly twice saw Berry "hobbling" and "hunched
over." (Pl. App. in Support of Mot. for Partial Summ. J. ("Pl. Moving App."), Ex. I, at 2-3; see also Viola Cert. in Support
of Mot. for Summ. J. ("Viola Moving Cert."), Ex. 19, at 0000016.)
Concerned that Berry could not fully perform his job, Michael
J. Del Vecchio, Division Head of the Office of Risk Management,
wrote Dr. Giordano and asked him to "review the job descriptions
[for corrections sergeant and corrections officer] and advise
which items you feel Sgt. Berry can perform without endangering
himself and/or his fellow officers." (Ltr. from Del Vecchio to
Giordano of 12/15/99.) Del Vecchio followed that letter with
another in which he enclosed copies of a spinal test performed on
Berry. (Ltr. from Del Vecchio to Giordano of 12/17/99.) Del
Vecchio remarked that the spinal test indicated Berry "was
determined to be borderline in acceptance with the standards set
by the U.S. Department of Labor, Employment and Training
Administration, Dictionary of Occupational Titles." (Id.) As a
result, Del Vecchio concluded that Berry "would be a direct
life-safety threat to himself and to his fellow officers should
he continue to work as a Corrections Officer and/or Sergeant at
the Correctional Facility." (Id.) Although Defendants dispute
whether they had played any part in prompting Del Vecchio's
correspondence, it is undisputed that Del Vecchio did not notify
Berry prior to contacting Dr. Giordano. (Pl. Statement of
Undisputed Facts ¶ 19; Def. Opp. to Pl. Mot. for Partial Summ. J.
at 4.) In response to Del Vecchio's correspondence, Dr. Giordano
acknowledged "that if Mr. Berry were to be in a situation where
he has to help restrain an inmate or deal with a combative
inmate, that he would be at risk to injuring himself, as well as
be at risk for not being capable of helping fellow officers."
(Ltr. from Giordano to Del Vecchio of 12/22/99.) Concluding that
Berry was at risk to himself and his fellow officers, Dr.
Giordano "discuss[ed] this with Mr. Berry as well and made it
clear to him that there is no doubt because of his prior surgery
that he is at risk. [He] also made it clear to Mr. Berry that if
other work is available to him that does not place him in such
direct risk, this would be in his best interest as well." (Id.)
At the end of December 1998, the MCSD suspended Berry from his
position as a corrections sergeant pending his final termination.
(Pl. Statement of Undisputed Facts ¶ 20; Def. Statement of
Material Facts ¶ 7.) On May 4, 1999, Berry received a Preliminary
Notice of Disciplinary Action seeking his removal as a
corrections sergeant. (Pl. Moving App., Ex. H.) The MSCD
conducted a departmental hearing on September 3, 1999 to
determine whether Berry should be removed from his post. (See
id., Ex. I.) Despite Berry's exemplary work record, Hearing
Officer Richard E. Riley recommended Berry's termination:
This is clearly not a hearing regarding any
disciplinary infraction. Unfortunately, this issue is
Sergeant Berry's inability to perform his duties as a
Correction's Sergeant. . . .
Based on the permanency of Sergeant Berry's injuries
and the prognosis enumerated in Dr. Giordano's letter
of December 12, 1998, I have no other recourse than
to recommend to the Sheriff that Sergeant Berry's
position with the Sheriff's Office be terminated.
It is clear from the testimony, the employee's
attendance record and the medical information
provided to me, as well as the arguments of Counsel,
that this employee is not physically capable of fully
performing the duties required of a Corrections
Sergeant. It is not clear to me why other remedies
for this situation were not pursued.
(Viola Moving Cert., Ex. 19, at 0000017-18.) On October 4, 1999,
the MCSD officially terminated Berry's employment. (Def.
Statement of Material Facts ¶ 10.)
Berry alleges that his termination was racially motivated.
Berry alleges that his "race has subjected him to ridicule by
many officers and co-workers" at the Morris Count Jail, and that
"such ridicule has taken place either in the presence of or with
the knowledge of supervisory personnel, including the
Defendants." (Am. Compl. ¶ 25.) Berry alleges that white officers
referred to him with racial slurs and gave him racially derisive
nicknames, such as "[Former Sheriff] Fox's Nigger" and "Lips."
(Id. ¶ 27; see also Pl. Opp. App., Vol. III, Ex. RR, Breeding
Aff., ¶ 9.)
Berry alleges that the policies and practices of the MCSD and
its employees promoted a racially charged atmosphere. He alleges
that white officers constantly referred to African-Americans as
"niggers," "jungle bunnies," "spear chuckers," and "porch monkeys." (Am. Compl. ¶ 31(a); see also Pl. Opp. App.,
Vol. III, Ex. JJ, Dixon Aff., ¶ 5; Ex. NN, Williams Aff., ¶¶ 8-9;
Ex. SS, Moore Aff., ¶ 18.) These racial epithets were allegedly
spoken by high ranking officers Lombardi, Mills, Bishop, and
Nowacki. (See, e.g. Pl. Opp. App., Vol. III, Ex. RR, Breeding
Aff., ¶¶ 7-14.) In addition, white officers allegedly
disseminated and posted racially obscene materials within the
MCSD, including a poster titled "Official Runnin' Nigger Target."
(Am. Compl. ¶ 31(b); see also Pl. Opp. App., Vol. I, Exs. A &
B; Vol. II, Ex. W, Berry Dep., at 155:2-16 (testifying that he
witnessed the target himself).)
White officers at the MCSD were allegedly treated more
favorably than minority officers. (See Am. Compl. ¶ 21.) In
Wiggins v. Morris County Sheriff's Dep't, Civ. No. 96-1336
(JCL), Brett Williams testified that white officers were promoted
more frequently than minority officers. (See Pl. Opp. App.,
Vol. II, Ex. V, Williams Dep., at 106:17-24.) With respect to
disciplining officers, Berry alleges that white officers were
less likely to be punished for rules infractions than minority
officers. (See Pl. Opp. App., Vol. III, Ex. II, Berry Aff., ¶
17A.) For example, in O'Brien v. Morris County Sheriff's Dep't,
Civ. No. 98-236 (JCL), Berry testified that white officers who
shared their food with inmates were not disciplined. (See Pl.
Opp. App., Vol. II, Ex. W, Berry Dep., at 110:20-112:18.) On the other hand, Berry testified that Fred Trottie and Leon Dixon, who
are African-American, were terminated for the same conduct.
(Id. at 183:8-25.) Furthermore, Leon Dixon testified that
minority officers were treated more harshly than white officers.
(Pl. Opp. App., Vol. II, Ex. X, Dixon Aff., at 141:17-22.) Dixon
testified that, among other things, he was given time off for
being tardy, whereas a white officer did not receive any
punishment for being late to work. (Id. at 143:11-145-24.)
Berry claims that his status as an African-American and
association with other minorities played a role in his
termination. Berry further alleges that because he associated
with other minority officers, he was subjected to the following
punishment: assignment to less-favored posts, assignment to less
favored shifts, separation from his friends, and ultimately
termination. (Am. Compl. ¶ 29.) Berry believed the superior
officers in the MCSD voiced concern about his back injury because
they were afraid he would take favorable posts from white
officers if allowed to return to work. (Pl. Opp. App., Vol. III,
Ex. II, Berry Aff., ¶ 29.) The MCSD never offered to place Berry
on medical or disability leave as a result of his back injury.
(Id. ¶ 25.) In contrast, the MCSD permitted Noreen Rocco, a
white female officer, to take full disability leave for over a
year without adverse consequences. (Id. ¶ 34.) Berry infers
that the difference in treatment between himself and Rocco is the product of race. (See id. ¶ 35.)
On or about December 22, 1999, Berry filed a claim for benefits
with the New Jersey Department of Labor and Workforce
Development, Division of Workers' Compensation. (Id. ¶ 2 n. 2.)
On July 15, 2002, the Division of Workers' Compensation approved
a settlement award of $26,865.00. (Viola Moving Cert., Ex. 14.)
Berry filed this action on June 15, 2000 against MCSD, John
Lombardi,*fn1 Edward Rochford, John Dempsey, John Kinnecom,
Fred Mills, Frank Corrente, Roger Bishop, and Michael Nowacki.
The nineteen-count complaint contains numerous employment-related
causes of action. Although many claims appear to be repetitive
and/or overlap in some ways, the complaint states claims for
discrimination based on race and disability, hostile work
environment, violation of civil rights under 42 U.S.C. § 1983,
intentional infliction of emotional distress, violations of the
First Amendment, breach of contract, and breach of implied
warranties of good faith and fair dealing.
On October 8, 2004, Berry filed a motion for partial summary
judgment as to liability only on his claims for violations of the
Americans with Disabilities Act and the New Jersey Law Against
Discrimination. He also filed an in limine motion seeking to
bar from the trial evidence of the results, settlement, or
medical reports of his Workers' Compensation case. On the same date,
Defendants cross-moved for summary judgment on all counts of the
complaint. Defendants also filed an in limine motion seeking to
preclude from the trial any evidence of racial discrimination
that allegedly occurred during Berry's employment with MCSD.
I. Summary Judgment Standard
Summary judgment will be granted only if the record shows 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. 65(c). Whether a fact is material is determined by the
applicable substantive law. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). An issue involving a material fact is
genuine "if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Healy v. N.Y. Life
Ins. Co., 860 F.2d 1209, 1219 n. 3 (3d Cir. 1988), cert.
denied 490 U.S. 1098 (1989).
The moving party has the initial burden of showing that no
genuine issue of material fact exists. Celotex Corp. v.
Carteret, 477 U.S. 317, 323 (1986). If the moving party
satisfies this requirement, the burden shifts to the nonmoving
party to present evidence that there is a genuine issue for
trial. Id. at 324. The nonmoving party "may not rest upon mere
allegations or denials" of its pleading, Fed.R.Civ.P. 56(e), but must produce sufficient evidence to reasonably support a jury
verdict in its favor, Anderson, 477 U.S. at 249, and not just
"some metaphysical doubt as to material facts," Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
In determining whether any genuine issues of material fact
exist, the Court must resolve "all inferences, doubts, and issues
of credibility . . . against the moving party." Meyer v. Riegel
Prods. Corp., 720 F.2d 303, 307 n. 2 (3d Cir. 1983) (citing
Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870, 874 (3d
Cir. 1972)); accord Aman v. Cort Furniture Rental Corp.,
85 F.3d 1074, 1077 n. 1 (3d Cir. 1996).
II. Disability Discrimination
Berry's claims of discrimination based on disability fall into
three categories: (1) claims under the Americans with
Disabilities Act ("ADA"); (2) claims under the New Jersey Law
Against Discrimination ("NJLAD"); and (3) claims under the
A. Americans with Disabilities Act
Counts seven, seventeen, and eighteen state general claims
arising under the ADA. The ADA provides in relevant part:
No covered entity shall discriminate against a
qualified individual with a disability because of the
disability of such individual in regard to job
application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges
of employment. 42 U.S.C. § 12112(a).*fn2 An employer discriminates against
a qualified individual with a disability when the employer fails
to make reasonable accommodations for a plaintiff's disabilities,
unless the employer can demonstrate that such an accommodation
would impose an undue hardship on the operation of the business.
42 U.S.C. § 12112(b)(5)(A).
In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05
(1973), and Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 252-56 (1981), the Supreme Court set forth the
basic allocation of burdens and order of presentation of proof in
a Title VII case alleging discriminatory treatment. This
framework applies equally to claims brought under the ADA. Olson
v. Gen. Elec. Aerospace, 101 F.3d 947, 951 (3d Cir. 1996).
First, the plaintiff has the burden of proving by the
preponderance of the evidence a prima facie case of
discrimination. McDonnell Douglas Corp., 411 U.S. at 802.
Second, if the plaintiff succeeds in proving the prima facie
case, the burden shifts to the defendant "to articulate some
legitimate, nondiscriminatory reason for the employee's
rejection." Id. Third, should the defendant carry this burden,
the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered
by the defendant were merely a pretext for discrimination. Id.
In order to establish a prima facie case of unlawful
discrimination, Berry must show that "(1) he is a disabled person
within the meaning of the ADA; (2) he is otherwise qualified to
perform the essential functions of the job, with or without
reasonable accommodations by the employer; and (3) he has
suffered an otherwise adverse employment decision as a result of
discrimination." Taylor v. Phoenixville Sch. Dist.,
134 F.3d 576, 580 (3d Cir. 1998) (internal citations omitted).
Berry is disabled within the meaning of the ADA. Berry asserts
that the MCSD and Sheriff Rochford considered his back injury to
be a "disability" that preventing him from working in the MSCD.
(Pl. Statement of Undisputed Facts ¶ 26.) Defendants do not
dispute this assertion in any of their submissions.*fn3
Because Berry was "regarded as" having a disability, he has shown
that he is disabled within the meaning of the ADA. See
42 U.S.C. § 12102(2)(C). The parties do not dispute that Berry suffered an adverse
employment action as a result of his back injury. Berry's alleged
disability prevented him from working in the MCSD. (Pl. Statement
of Undisputed Facts ¶ 26.) The MCSD suspended Berry from work in
December 1998 after contacting his physician and learning that
his back injury restricted him from restraining inmates and could
threaten the safety of himself and his fellow officers. (Id. ¶
20; Pl. Moving App., Ex. B, C, D, H.) On May 4, 1999, Berry
received a Preliminary Notice of Disciplinary Action seeking his
removal as a corrections sergeant "due to the lack of progress in
[his] disability case and the burden on the workforce of the
facility created by [his] absence." (Pl. Moving App., Ex. H,
Rider B; Def. Statement of Material Facts ¶ 8.) After a
departmental hearing, Berry was removed from his post because his
disability prevented him from performing the duties of a
corrections officer. (Pl. Moving App., Ex. J, at 4 & Rider B.)
Clearly, Berry was terminated because of his disability. The
question remains, then, whether Berry was otherwise qualified and
could have performed the job with a reasonable accommodation.
The second element of making out a prima facie case requires
Berry to demonstrate that he is qualified for the job of
corrections sergeant, with or without reasonable accommodation.
There is a genuine dispute of material fact as to this element.
In order to demonstrate that he is qualified under the ADA, Berry must show that he "satisfies the requisite skill,
experience, education and other job-related requirements of the
employment [Berry] holds or desires." 29 C.F.R. § 1630.2(m);
see Conneen v. MBNA Am. Bank, N.A., 334 F.3d 318, 326 (3d
Cir. 2003). If Berry makes this showing, he must then establish
that, with or without reasonable accommodation, he can perform
the essential functions of the job. 42 U.S.C. § 12111(8);
Conneen, 334 F.3d at 326; 29 C.F.R. § 1630.2(m). Defendants do
not dispute that Berry has the requisite "skill, experience,
education" that his job requires. However, his back injury
restricts Berry from exerting the force necessary to restrain
inmates. (Pl. Moving App., Ex. D.) Defendants claim that
restraining inmates and responding to emergencies are essential
functions of being a corrections sergeant. (Def. Mot. for Summ.
J. at 15-16.) Because no amount of accommodation would enable
Berry to effectively restrain inmates, Defendants argue that he
is not qualified to perform the essential functions of the job.
"Essential functions" encompass "fundamental" duties of the
employment position, not simply "marginal" duties.
29 C.F.R. § 1630.2(n)(1). Determining whether a particular duty is an
essential function is a highly fact-sensitive inquiry, which
"`must be made on a case by case basis [based upon] all relevant
evidence.'" Conneen, 334 F.3d at 326 (quoting Deane v. Pocono
Med. Ctr., 142 F.3d 138, 148 (3rd Cir. 1998) (en banc)). "Relevant evidence may include, but is certainly not limited to,
the employer's judgment as to which functions are essential and
written job descriptions prepared before advertising or
interviewing applicants for the job. However, the employee's
actual experience is also relevant to the inquiry." Id.
(internal citations and quotation marks omitted).
In this case, Defendants assert that the written job
descriptions of a corrections sergeant include restraining
inmates. Job Specification 32652 lists the following examples of
Maintains order in the building and on the grounds of
* * *
Takes the responsibility for good order and the
discipline in specified areas of the institution.
* * *
During some investigations is responsible for . . .
removing inmates that are a threat to the institution
from the general population.
(Viola Moving Cert., Ex. 7, at 0000863.) The Court notes,
however, that these are only three of thirty-six examples
listed in the document. Moreover, of the requirements listed,
only one directly relates to restraining or having any physical
contact with the inmates: "Knowledge of approved force
techniques, chemical mace, fire fighting equipment and other
emergency equipment." (Id. at 0000865.) In addition to the written Job Specifications, Defendants
maintain that, under the judgment of the MCSD and Sheriff
Rochford, the ability to restrain inmates represents an essential
function of being a corrections sergeant. Sheriff Rochford
"considers the physical ability to deal with combative or injured
inmates an essential quality of any officer assigned to the
jail." (Def. Mot. for Summ. J. at 16.) In his deposition, Sheriff
Rochford testified that having Berry return to work in his
current physical condition would pose an undue hardship on the
MCSD because there may be "interaction with inmates where he
might have to assist a fellow officer or employee if the inmate
started acting up or going after an officer." (Viola Cert., Ex.
8, at 67:15-18.) Sheriff Rochford also stated that the MCSD has
no alternative or light duty policy for officers who could not
restrain inmates. (Id. at 66:4-13.) Defendant Corrente
confirmed that, under Sheriff Rochford, light duty does not exist
and that medical services requires corrections sergeants to be
cleared for full duty prior to beginning work. (Pl. Moving App.,
Ex. N, at 102:19-103:15.)
Nevertheless, the actual experiences of Berry (and his
co-workers) contradict Job Specification 32652 and the testimony
of Defendants Rochford and Corrente. Berry alleges that numerous
positions existed in which officers rarely, if ever, had contact
with inmates. (Pl. Mot. for Partial Summ. J. at 17-18.) For example, during the period from 1998-2002, the MCSD was in the
process of moving into a new facility. (Id.) The MCSD formed a
design team to write policies and procedures regarding the new
building. (Id.) The design team was comprised of full-time
officers at the Morris County Jail. (Bishop Dep., Pl. Moving
App., Ex. K, at 51:11-17.) Working on the design team involved no
physical labor, such that the job could have been performed by an
individual in a wheelchair. (Id. at 50:13-51:10.)
In addition, the MCSD had a post in the control center of the
Morris County Jail. (Pl. Mot. for Partial Summ. J. at 20; Torkos
Dep., Pl. Moving App., Ex. L, at 36:9-14.) The control center
post was one of the least physically demanding posts in the jail.
(Id.) The control center had to be manned at all times, even
when officers needed to respond to a combative inmate. (See
Torkos Dep., Pl. Moving App., Ex. P, at 37:3-7, 38:16-21,
39:14-19.) Accordingly, a corrections sergeant unable to restrain
an inmate could still adequately perform the job. In fact, the
MCSD placed officers with minor injuries in the control center.
(Id. at 37:9-17.)
The positions on the design team and in the control center are
but two examples of less strenuous jobs that allegedly could be
performed by disabled officers. Several corrections personnel
held posts in the administrative building outside of the secured
perimeter of the Morris County Jail. (Torkos Dep., Pl. Moving App., Ex. P., at 39:20-40:8.) Even Defendant Corrente had a post
outside of the secured perimeter. (Id. at 40:17-41:16.) Other
administrative positions existed outside of the Morris County
Jail. (See id. at 41:20-42:14.) In addition, the criteria
included in the evaluation forms for many of these posts do not
involve the physical preparedness or physical responsiveness of
the corrections sergeant. (See Pl. Moving App., Ex. T.)
From this evidence, a reasonable jury could infer that the
posts outside of the secured perimeter did not include
restraining inmates. To the extent that the evidence submitted by
Berry contradicts the evidence and testimony of Defendants, the
Court finds a genuine issue of material fact as to whether
restraining inmates is an essential function of Berry's former
job. Therefore, the Court denies summary judgment to either party
on Berry's ADA claims.
B. New Jersey Law Against Discrimination
Counts five, seventeen, and eighteen of the complaint allege
that Defendants discriminated against Berry on the basis of his
disability, in violation of the New Jersey Law Against
Discrimination. N.J.S.A. 10:5-4.1 prohibits employers from
engaging in unlawful employment practices or discrimination
against any disabled person, "unless the nature and extent of the
handicap reasonably precludes the performance of the particular
employment." N.J.S.A. 10:5-4.1; Morris v. Siemens ...