The opinion of the court was delivered by: Hon. Joseph H. Rodriguez
MEMORANDUM OPINION & ORDER
This matter is before the Court on cross-motions for summary judgment. Oral argument on the motions was heard on December 14, 2010, and the record of that proceeding is incorporated here. For the reasons expressed on the record, and those outlined below, both motions will be granted in part and denied in part.
Plaintiff Melvin Jones sustained injuries as the result of an automobile accident on July 8, 2005. At that time, he was employed by the City of Atlantic City. He brought this lawsuit on July 5, 2007, originally in State court, in part to seek redress from his employer for alleged violations of the New Jersey Law Against Discrimination and Family Medical Leave Act. Plaintiff asserts that the City refused to allow him to return to work as of November 2, 2005, despite that Plaintiff gave a "full duty note" to his supervisor, David Calloway, the Director of Public Works. The City required Plaintiff to see its own doctor before allowing him to return to work, and allegedly subjected Plaintiff to discipline and loss of employment until March 1, 2006.
Plaintiff claims that in doing so, the City retaliated against him for taking time off after the motor vehicle accident. Plaintiff also claims that he was not notified of his FMLA rights, and that the City failed to have Plaintiff complete any FMLA documentation.*fn1 Finally, Plaintiff asserts that the City violated the NJLAD by failing to reasonably accommodate Plaintiff's serious medical condition by permitting a period of time off from work.
The City has argued that on November 3, 2005 and thereafter, Plaintiff was advised that he had to obtain clearance from the City's doctor pursuant to the City's tenday absence policy, whereby any employee must see a City doctor after being out of work for at least ten days due to sickness or injury. The City contends that Plaintiff refused to comply with its policy until February 28, 2006, and he was permitted to return to work the next day. Indeed, the documents of record indicate that the City attempted to schedule an appointment for Plaintiff with its doctor for November 2005, but Plaintiff was unable to honor that appointment. Plaintiff testified during deposition that he was fine with going to see the City doctor when he was first notified that City policy required it. (Jones 6/22/09 Dep., p. 41.) After the initial attempt, however, it appears that neither party took further action to obtain an appointment for Plaintiff to see the City's doctor.
Plaintiff's records also indicate that he went out sick from July 5, 2005 to July 22, 2005 (Upshaw Dep., p. 75, 77.) He then went out on worker's compensation from July 25 to July 28, 2005. (Upshaw Dep., p. 75.) From July 29, 2005 until approximately November 10, 2005, Plaintiff was on sick leave. (Upshaw Dep., p. 75, 77) As of November 14, 2005, Plaintiff was without pay. (Upshaw Dep., p. 75-76.) Plaintiff has testified that he used sick and vacation time until it ran out, and then collected unemployment benefits. (Jones 6/22/09 Dep., p. 39-40.) At oral argument, it was confirmed that from approximately November 14, 2005 until he returned to work, Plaintiff collected unemployment compensation in the amount of approximately $500 per week.*fn2
On January 30, 2006, the City filed termination charges against Plaintiff due to his continued unexcused absences for just over twelve weeks. An administrative hearing was scheduled for February 22, 2006. At that time, Plaintiff requested that he be allowed to use his accumulated sick and vacation time to cover his absence from November 2, 2005 to February 15, 2006.*fn3 The City states that it permitted him to do so, and after Plaintiff saw the City's doctor on February 28, 2006, he resumed his employment without any negative consequences.*fn4
A. Summary Judgment Standard
"Summary judgment is proper if there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law." Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56 (a). The Court will enter summary judgment in favor of a movant who shows that it is entitled to judgment as a matter of law, and supports the showing that there is no genuine dispute as to any material fact by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56 (c)(1)(A).
An issue is "genuine" if supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable inferences drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally's Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994). Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Andersen, 477 U.S. at 256-57. "A nonmoving party may not 'rest upon mere allegations, general denials or . . . vague statements . . . .'" Trap Rock Indus., Inc. v. Local 825, Int'l Union of Operating Eng'rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991)). Indeed, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.
Celotex, 477 U.S. at 322. That is, the movant can support the assertion that a fact cannot be genuinely disputed by showing that "an adverse party cannot produce admissible evidence to support the [alleged dispute of] fact." ...