The opinion of the court was delivered by: Simandle, District Judge
This employment discrimination matter is before the Court on Defendant's motion for summary judgment and Plaintiff's cross- motion for summary judgment [Docket Items 17 & 20].*fn1 For the reasons given below, both motions will be granted in part and denied in part.
Except as noted, the following facts are undisputed. In 2000, Plaintiff was hired as a driver/guard with Dunbar Armored Inc., an armored car company. (Kocopi Aff. ¶ 4.) The job was somewhat strenuous, requiring heavy lifting throughout the day. (Id.) In 2003, Plaintiff was promoted to crew chief, which included similarly strenuous duties as those of driver/guard. (Id. ¶ 5.)
On April 25, 2006, Plaintiff underwent a coronary bypass in response to a troubling cardiac stress test. (Brown Dep. 50:10-51:14, Oct. 2, 2008.) Soon after, his wife informed Christopher Camp, Plaintiff's direct supervisor, of Plaintiff's condition. (Camp Dep. 25:18, Oct. 24, 2008.) Plaintiff was placed on leave pursuant to the Family Medical Leave Act (FMLA), 29 U.S.C. § 2612(a)(1). (Kocopi Aff. ¶ 10.) The Defendant does not dispute that Plaintiff's inability to work while recovering from bypass surgery constitutes a disability under the New Jersey Law Against Discrimination (NJ LAD). N.J. Stat. Ann. 10:5-1.*fn2
On May 18, Plaintiff was sent a letter by Eugenia Bryant, Dunbar's Director of Benefits. (Bryant Aff. ¶ 10.) The letter included a form for claiming short-term disability payments, informed Plaintiff that he needed a signed medical release in order to return to work, and told Plaintiff to submit to Ms. Bryant any updated physician's statements. (Bryant Aff. ¶ 6.) Plaintiff returned the claim form, on which one of his physicians, Dr. Gelernt, stated in block 11 that Plaintiff was anticipated to be released to return to work on July 5, 2006, about two weeks before his FMLA leave would expire. (Bryant Aff. Ex-E.)*fn3
Some time in June or perhaps early July, Plaintiff spoke with Christopher Camp over the phone. The content of their conversations is disputed. Plaintiff alleges that, on multiple occasions, he requested that he be returned to light duty work until he recovered, (Brown Dep. 77:24-84:6), and alleges that Defendant told him to wait until he was fully recovered and then return. (Id.) Defendant denies that Plaintiff requested light duty work, relying upon Camp's statement in deposition that he does not remember Plaintiff making this request. (Camp Dep. at 28:19-28:21.)*fn4
Plaintiff's twelve weeks of FMLA leave expired July 17. On July 24, Plaintiff was sent a letter terminating him. (Bryant Aff. ¶ 13.) The letter encouraged Plaintiff to apply to future openings at Dunbar. (Id.) That same day, Plaintiff was also seen by a cardiologist, Dr. Levi, who cleared him for light duty work and estimated that he would be released for full duty work by Sept. 1, 2006. (Pl.'s Br. Supp. Pl.'s Motion for Summ. J., Ex-F (letter from Dr. Levi).)*fn5 Also that same day, Plaintiff went to work to request a return to employment on a "light duty" basis, but Camp was out on vacation. (Brown Dep. 82:4-84:11.)
Camp and Brown subsequently exchanged phone calls in early August. (Camp Aff. ¶ 12.) Brown sought to be brought back to his old job, but by this point Camp had determined that the replacement employee was doing a superior job, so he elected not to rehire Brown. (Camp Dep. 35:12-35:23.) Defendant alleges that Brown could have been rehired as a driver/guard upon his medical release to return to work, and was offered that position. (Camp. Aff. ¶ 12.) At some point during first weeks of August, Brown returned his uniform and other Dunbar property, which Camp took to be a rejection of the alleged offer. (Camp. Aff. ¶ 13.)
On August 22, 2006, Plaintiff was cleared by Dr. Levi to perform the responsibilities of his old job without any restrictions. (Pl.'s Br. Supp. Pl.'s Motion for Summ. J., Ex-H (letter from Dr. Levi).)
Plaintiff brought this action in the Superior Court of Burlington County on May 27, 2008, alleging that Defendant "failed to engage in the interactive process" and focusing on the failure of Defendant to allow Plaintiff to return to work after he was cleared for light duty work in violation of the NJ LAD.*fn6
Defendant removed the action to this Court pursuant to 28 U.S.C. § 1441(a) based on the complete diversity of the parties and amount in controversy. The present motions of summary judgment were filed in March and April of 2009. [Docket Items 17 & 20.]
A. Summary Judgment Standard
Summary judgment is appropriate when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In deciding whether there is a disputed issue of material fact, the Court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party; in other words, "the nonmoving party's evidence 'is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-30 (3d Cir. 1995) (citation omitted).
Although entitled to the benefit of all justifiable inferences from the evidence, "the nonmoving party may not, in the face of a showing of a lack of a genuine issue, withstand summary judgment by resting on mere allegations or denials in the pleadings; rather, that party must set forth 'specific facts showing that there is a genuine issue for trial,' else summary judgment, 'if appropriate,' will be entered." United States v. Premises Known as 717 South Woodward Street, Allentown, Pa., 2 F.3d 529, 533 (3d Cir. 1993) (quoting Fed. R. Civ. P. 56(e)) (citations omitted).
B. Legal Framework of New Jersey Law Against Discrimination
The New Jersey Law Against Discrimination forbids discrimination on the basis of an employee's disability. A prima facie case for discrimination requires a Plaintiff who has suffered an adverse employment action because of a disability to show that he or she "was qualified to perform the essential functions of the position of employment, with or without accommodation." Victor v. State, 952 A.2d 493, 501 (N.J. Super. App. Div. 2008).
In an effort to encourage employers to accommodate disabled employees without the need for litigation, the statute has been read to require employers to initiate an informal interactive process with the employee "[t]o determine what appropriate accommodation is necessary." Tynan v. Vicinage 13 of Superior Court, 798 A.2d 648, 657 (N.J. Super. Ct. App. Div. 2002) (citations omitted). Instead of putting the burden on either the employee alone or the employer alone to identify reasonable accommodations, the mutual process "must identify the ...