The opinion of the court was delivered by: Hillman, District Judge
This matter has come before the Court on defendants' motion for summary judgment on plaintiff's employment discrimination claims. For the reasons expressed below, defendants' motion will be granted in part and denied in part.
In February 2008, plaintiff, Robert J. Dennis, was hired by the Atlantic County Justice Facility ("ACJF") as a corrections officer on a probationary basis, pending the successful completion of training at the Atlantic County Police Training Academy. Dennis was scheduled to attend the academy in October 2008, but his pre-academy physical in August revealed a very high triglyceride level. Even though repeat blood work showed normal levels four days later, and his doctor believed the initial test to be erroneous, Dennis's spot at the academy had already been reassigned. He was then scheduled to attend the January 2009 session. The Division Director/Warden, Sean Thomas, warned Dennis that the January 2009 academy was his final opportunity to complete his required training, and failure to do so would result in his removal from his position as a county corrections officer.
In preparation for the January 2009 academy, Dennis passed his pre-academy physical. The twelve week training began on January 29, 2009, and was comprised of a classroom component and physical training sessions. Two weeks into training, on February 13, 2009, Dennis became lightheaded during a vigorous physical training session. The chief instructor, Rick Bianchi, was concerned about Dennis's health and ability to complete the physical fitness portion of the training. Warden Thomas was advised about the instructor's concerns, and Dennis was ordered to be evaluated by the Atlantic County physician, Dr. Caddell, prior to resuming physical training.
On February 17, 2009, Dennis was seen by Dr. Caddell, who ordered a series of tests to determine if Dennis was suffering from coronary heart disease. New Jersey state statute requires that all academy recruits successfully complete eighty percent of the physical training, and failure to do so mandates dismissal from the academy. Because it appeared that in order to complete all the medical testing Dennis would exceed the allowable number of absences from the physical training classes, which were held three times a week, Dennis sought out advice from his instructors on what he should do. They advised him to ask for a medical withdraw, which, if granted, would allow him to re-start the academy in another session if his medical tests came back normal.
On February 20, 2009, Dennis requested to be medically withdrawn from the academy. That same day, after consulting with Warden Thomas and the Police Training Commission, defendant Captain Steven Murray, Compliance Unit Commander, denied Dennis's request. Murray's letter did not state a reason for the denial.
Dennis underwent a series of tests, including an electrocardiogram, nuclear stress test, and halter monitor test. All the tests came back negative for any kind of heart condition. On March 6, 2009, the County doctor, Dr. Caddell, certified that Dennis did not have any physical limitations restricting him from continuing the police academy training. As of March 4, 2009, however, Dennis had exceeded his allowable absences. On March 5, 2009, Dennis was dismissed from the police training academy for missing six (twenty percent) of the physical fitness training sessions.
On the same day he missed his sixth physical training session, Dennis slipped on ice and fell down the front steps at his home. He sustained injuries to his shoulder, knee and back. He went to the emergency room and the hospital physician excused him from work for two days so that he could be examined by his primary care physician. On March 5, 2009, Dennis's physician excused him from work until March 9, 2009 and provided him with a referral to an orthopedic specialist. That same day, Dennis saw the orthopedic specialist, who excused him from work until March 23, 2009.
On March 5, 2009, Dennis asked the orthopedic specialist to complete paperwork so that he could request leave under the Family Medical Leave Act (FMLA). Dennis turned in his FMLA request to the ACJF that day. The officer who received Dennis's FMLA paperwork provided Dennis with a memorandum confirming his request for leave from March 4, 2009 through March 22, 2009. That same day, Dennis signed an acknowledgment that he was dismissed from the police training academy because of his sixth absence.
Despite having been dismissed from the training academy, and although he was required to complete the academy in order to maintain his position as a corrections officer with ACJF, as of March 5, 2009, Dennis was still employed by the ACJF.*fn1
On March 9, 2009, Warden Thomas completed a "notice of disciplinary action," which suspended Dennis from his position at ACJF, effective March 10, 2009, because of his failure to complete the training academy in his allotted two attempts. Warden Thomas required that Dennis to be personally served with the notice.
Also on March 9, 2009, defendant Joseph Bondiskey, Operations Commander, received Dennis's FMLA paperwork that had been forwarded to him for his review. Bondiskey found the dates on the paperwork to be conflicting. He did not forward Dennis's FMLA request for further processing, however, because of his March 5, 2009 dismissal from the academy and his suspension from his position at ACJF that would be effective the next day, March 10th.
On March 10, 2009, Bondiskey and Murray arrived at Dennis's house unannounced. According to Dennis, he had just awoken and was under the influence of pain medication. His wife was present during the entire visit which lasted only a few minutes. Bondiskey and Murray informed Dennis of his suspension. The parties disagree as to the content of the short meeting, but Bondiskey and Murray state that Dennis did not wish to make a statement and that he only requested a hearing, which had already been scheduled for March 23, 2009. Bondiskey and Murray claim that their visit constituted the required Loudermill hearing, which, under Cleveland Board of Educ. v. Loudermill, 470 U.S. 532 (1985), provides that a public employee is entitled to a limited pre-termination hearing, as an initial check against mistaken decisions, that assesses the reasonableness of the charges against the employee. Dennis claims, however, that he asked for union representation, which was denied, and he was not permitted to make a statement on his own behalf. He also claims that he asked about his FMLA rights, but was told that they did not apply.
Dennis's formal hearing before a hearing officer was ultimately conducted on June 24, 2009. Dennis was represented by counsel, and assistant county counsel appeared on behalf of the ACJF. Testimony was taken from several witnesses, including Warden Thomas, chief physical fitness instructor Bianchi, and Bondiskey. The hearing officer issued her opinion on July 21, 2009, and sustained the charges on Dennis's disciplinary notice. Although the hearing officer did not explain whether the decision to deny Dennis's request for a medical withdrawal was proper, she found the decision to dismiss Dennis from the academy was reasonable due to Dennis's failure to comply with the state-mandated attendance requirements. She further found that because he had failed his second and final attempt to complete the academy, and completion of the academy was a requirement for Dennis's position as a corrections officer, his suspension pending termination was proper. Thus, she ordered Dennis to be terminated effective immediately.
Subsequently, Dennis brought the instant suit against the County, Captain Bondiskey, and Captain Murray.*fn2 Dennis claims that he was discriminated against in violation of his rights under the Americans with Disabilities Act and the New Jersey Law Against Discrimination because he was not provided with reasonable accommodations for his perceived disability (i.e., his heart condition). Dennis further claims that defendants interfered with his rights under the FMLA for his request for FMLA leave due to his injuries from his fall on the ice. Dennis also alleges that his due process rights under Loudermill and National Labor Relations Board v. J. Weingarten, Inc., 420 U.S. 251 (1975), were also violated.
Defendants have moved for summary judgment in their favor on all claims. Defendants argue that Dennis's ADA claim fails because a public employer is not required to accommodate a "perceived" disability. Defendants also argue that any discrimination claims under the ADA and NJLAD fail because they had no ability to accommodate Dennis since the dismissal from the academy was mandated by statute. Defendants further contend that Dennis was provided with proper due process procedures under Loudermill and Weingarten. Finally, the individual defendants argue that Dennis has not articulated any acts allegedly perpetrated by them relating to Dennis's alleged discrimination and due process violations. Dennis has opposed defendants' motion.
This Court has jurisdiction over plaintiff's federal claims under 28 U.S.C. § 1331, and supplemental jurisdiction over plaintiff's state law claims under 28 U.S.C. § 1367.
II. Summary Judgment Standard
Summary judgment is appropriate where the Court is satisfied that "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."
Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56©).
An issue is "genuine" if it is 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 considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence "is to be believed and all justifiable inferences are to be drawn in his favor." Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)(quoting Anderson, 477 U.S. at 255).
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. 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. Anderson, 477 U.S. at 256-57. A party opposing summary ...