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December 20, 2005.


The opinion of the court was delivered by: DENNIS CAVANAUGH, District Judge


This matter comes before the Court upon motion by Air Brook Limousine ("Defendant") for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on all counts of the Complaint filed by James Sarnowski ("Plaintiff"). Oral Argument was heard regarding this matter on December 16, 2005. For the reasons stated below, Defendant's motion is granted.


  Defendant provides limousine, van and charter services. (Plaintiff's Brief in Support of its Motion to Dismiss ("Pl. Br.") at 4). Plaintiff worked for Defendant as a Service Manager and as such, he was responsible for maintenance on the vehicles. (Id.) Plaintiff claims that on or about October 25, 2002, he became "handicapped as a result of a heart condition which necessitated emergency quintuple bypass surgery." (Plaintiff's Complaint ("Pl. Compl.") ¶ 14). Plaintiff returned to work after that surgery. (Def. Br. at 5).

  On April 7, 2003, Plaintiff informed his supervisor that he had more blocked arteries and as a result, would have to continue seeing a doctor for the next six months and start wearing a heart monitor. (Pl. Compl. ¶ 28-29). Plaintiff alleges he was terminated on April 15, 2003, due to his disability (his heart condition). (Id.) Plaintiff alleges he was terminated in violation of the Family Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq., ("FMLA"), because he told his supervisor he may need a leave of absence due to his heart condition; the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 ("LAD"), because of his disability; and the New Jersey Conscientious Employee Protection Act, N.J.S.A. 34:19-1, et seq., ("CEPA"), because he complained to his employer about bus safety regulations.


  A. Standard for Summary Judgment

  Summary judgment is granted only if all probative materials of record, viewed with all inferences in favor of the non-moving party, demonstrate that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). The moving party bears the burden of showing either (1) there is no genuine issue of fact and it must prevail as a matter of law; or (2) that the non-moving party has not shown facts relating to an essential element of the issue for which he bears the burden. Celotex, 477 U.S. at 331. If either showing is made then the burden shifts to the non-moving party, who must demonstrate facts that support each element for which he bears the burden and must establish the existence of genuine issues of material fact. Id. The non-moving party "may not rest upon the mere allegations or denials of his pleading" to satisfy this burden, Fed.R.Civ.P. 56(e), but must produce sufficient evidence to support a jury verdict in his favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). B. Family Medical Leave Act

  The FMLA allows employees to take up to twelve weeks of necessary medical leave in a year without being placed in jeopardy of losing their jobs. 29 U.S.C. § 2601. The purpose of the FMLA is to "balance the demands of the workplace with the needs of families . . . by establishing a minimum labor standard for leave" that allows employees to take a "reasonable leave for medical reasons." Churchhill v. Star Enter., 183 F.3d 184, 192 (3d. Cir. 1999). In order to bring a successful claim under the FMLA, a plaintiff must show: (1) he is an eligible employee under the FMLA; (2) defendant is an employer subject to the requirements of the FMLA; (3) he was entitled to leave under the FMLA; (4) he gave notice to the defendant of his intention to take FMLA leave; and (5) the defendant denied him the benefits to which he was entitled under the FMLA. Parker v. Hahnemann Univ. Hosp., 234 F. Supp. 2d 478, 483-84 (D.N.J. 2002).

  Here, Plaintiff fails to present a prima facie case because Plaintiff never officially placed a request to take a leave from work. While Plaintiff mentioned to his supervisor that he may have to take time off in the future due to his heart condition, he never officially put in a request for a leave of absence under Defendant's FMLA policy. Plaintiff had not taken a leave from work when he was fired, nor had he placed a formal request to do so. Plaintiff has failed to satisfy the requirement of establishing a prima facie case under the FMLA. Defendant's motion for summary judgment regarding Plaintiff's FMLA claims is granted.

  C. New Jersey Law Against Discrimination

  The New Jersey LAD exists to ensure that all New Jersey citizens enjoy the civil rights guaranteed by the State Constitution, especially in the work place. N.J.S.A. § 10:5-2.1. Because the overarching goal of the LAD is to rid society of discrimination, the New Jersey Supreme Court has advised courts to liberally construe its provisions. Dale v. Boy Scouts of America, 160 N.J. 562 (1999). Although the LAD's protections have been broadly interpreted, the LAD does not prevent an employer from terminating or changing the employment of any person the employer reasonably believes is unable to perform the duties necessary for the job. Viscik v. Fowler Equipment Company, Inc., 173 N.J. 1, 13 (2002)

  In order to receive coverage under the LAD for disparate treatment, a plaintiff must first establish a prima facie case of discrimination. Viscik v. Fowler Equipment Company, Inc., 173 N.J. 1, 12 (2002). The New Jersey Supreme Court has adopted the burden-shifting framework set forth by the Supreme Court of the United States in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this framework, a plaintiff has the burden to show: (1) that he or she belongs to a protected class; (2) applied for or held a position for which he or she was objectively qualified; (3) was not hired or was terminated from that position; and (4) that the employer sought to, or did fill the position with a similarly-qualified person. Anderson v. Exxon Co., U.S.A., 89 N.J. 483, 493 (1982). This framework is not to be applied too rigidly and courts must adjust it to meet the particular circumstances at hand. Viscik, 173 N.J. at 13.

  Plaintiff has failed to establish a prima facie case under this framework. First, Plaintiff has failed to demonstrate that he fits the statutory definition of "handicapped" under the LAD. Plaintiff claims he is handicapped due to his heart surgery and his subsequent blocked arteries. (See Pl. Compl.). The LAD defines handicapped as an infirmity "which prevents the normal exercise of any bodily or mental functions." N.J.S.A. 10:5-5(g). The LAD goes on to list two categories of handicaps, physical and non-physical. N.J.S.A. § 10:5-5(q). A disability due to a heart condition would be characterized as a physical handicap because it impacts a person's physical, rather than mental capabilities. Although heart disease is a physical condition, it is not one that is readily apparent because one cannot tell a person has blocked arteries from merely looking at him, as one can tell a person with a missing limb is physically handicapped. Where the existence of a plaintiff's alleged handicap is not readily apparent, the plaintiff must produce expert medical evidence ...

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