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October 13, 2005.


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 "Defendants").

  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 lifting." (Id.)

  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 Rehabilitation Act.

  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 work:
Maintains order in the building and on the grounds of the institution.
* * *
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 ...

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