The opinion of the court was delivered by: Cooper, District Judge
The defendants move pursuant to Federal Rule of Civil Procedure ("Rule") 56(c) for summary judgment as to the claims asserted against them for violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), the Age Discrimination in Employment Act ("ADEA"), and the Americans with Disabilities Act ("ADA"). (Dkt. entry no. 37.) The Court, for the reasons stated herein, will grant the motion.
Defendant County of Mercer ("Mercer") hired Josephus T.Y. Nyema, Sr. ("Nyema") to be a corrections officer on September 16, 1996. (Compl., at ¶ 13.) Nyema sought the positions of Director of Public Safety, Warden, and member of the Mercer County Emergency Response Team ("MERT") once he was employed by Mercer. (Defs. Br., at 1.) He did not attain any of these positions. (Id.)
Nyema has had a series of disciplinary problems during the course of his employment. (Id.) He was suspended at least four times for (1) refusing to work a post assignment, (2) missing scheduled doctor's appointments related to a workers' compensation claim, (3) sleeping on duty, and (4) being indicted in the Superior Court of New Jersey on charges of fraud, and falsifying and tampering with records. (Defs. Br., at 1-2; Defs. Ex. C, 5-13-03, Final Admin. Action of the Merit Sys. Bd.; Defs. Ex. E, 7-10-02 Stip. of Settlement; Defs. Ex. G2, 4-7-03, Preliminary Notice of Disc. Action; Defs. Ex. I, 1-25-05, Hearing Officer's Report.)
His final suspension, which followed his indictment, was indefinite pending the outcome of the criminal case against him. (Defs. Ex. I, 1-25-05, Hearing Officer's Report.) Nyema was convicted of forgery and tampering with records on May 19, 2005. (5-20-05, "Ex-Liberian Civic Leader Guilty," The Trenton Times, at A4.) Mercer terminated Nyema's employment on October 26, 2005, as a result of the conviction. (10-26-05, N.J. Super. Ct. Order, New Jersey v. Nyema, No. 04-10-0715.)*fn1
Nyema sought and received notices of the right to sue from the Equal Employment Opportunity Commission ("EEOC") on November 10, 2003, and January 16, 2004. (Pl. Ex. Q, 11-10-03, & 1-16-04, Notice of the Right to Sue.) The notices gave Nyema "the right to institute a civil action under Title VII of the Civil Rights Act of 1964." (Id.) Nyema brought this action on February 9, 2004, alleging that Mercer and multiple Mercer employees violated his rights pursuant to Title VII, the ADEA, and the ADA. (Compl.) Nyema alleges that he was treated differently than other employees, and denied employment opportunities because of his race, color, national origin, age, and disability. (Id.) All the defendants have moved for summary judgment as to all the claims asserted against them. (Dkt. entry no. 37.)
The defendants argue that they are entitled to summary judgment because Nyema (1) was not subject to a hostile work environment, (2) has not demonstrated the defendants' intent to treat him differently, (3) was denied a MERT position because of physical injury, not age, and (4) is not disabled for purposes of the ADA. (Defs. Br., at 9, 11, 13-14.)
Nyema argues that summary judgment is not appropriate because (1) genuine issues of material fact exist, (2) he was treated differently than other employees found sleeping on the job because of his national origin, and (3) he was denied jobs because of his age and disability. (Pl. Br., at 6-8.)
I. Standard for Summary Judgment
Rule 56(c) provides that summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." The party moving for summary judgment bears the initial burden of showing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the summary judgment movant has met this prima facie burden, the non-movant "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). A non-movant must present actual evidence that raises a genuine issue of material fact and may not rely on mere allegations. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The Court must view the evidence in the light most favorable to the non-movant when deciding a summary judgment motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). At the summary judgment stage, the Court's role is "not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id. at 247-48 (emphasis in original). A fact is material only if it might affect the action's outcome under governing law. Id. at 248. "[T]here is no issue for trial unless there is sufficient ...