The opinion of the court was delivered by: Bumb, United States District Judge:
Plaintiff James Moore ("Plaintiff") asserts claims against Defendant County of Camden ("Defendant") under the Family and Medical Leave Act ("FMLA") and the New Jersey law Against Discrimination ("LAD"). Defendant has moved for summary judgment. For the reasons that follow, Defendant's Motion is DENIED.
Plaintiff was employed by the Camden County Communications Center beginning in 1996. [Plaintiff's Statement of Material Facts ("PSMF"), ¶ 1]. Plaintiff was promoted to Acting Administrative Captain in 2008 and permanent Administrative Captain by the end of 2008. Id. In late December 2008, Plaintiff was promoted to the supervisory position of "Acting Chief" effective January 2009. [Plaintiff's Response to Defendant's Statement of Material Facts ("Pl's. Resp. Facts"), ¶ 9].
In September 2009, Plaintiff was diagnosed as suffering from chronic leukemia. [PSMF at ¶ 30]. At the end of October Plaintiff's supervisor, Director Edward Fanelle ("Fanelle"), called Plaintiff into his office and ordered him to see the Counseling and Employee Assistance Program Services ("EAP") counselor and to take time off to get his head together. [PSMF at ¶ 3]. In response, Plaintiff told Fanelle that he had already requested two weeks off at the end of November. [Pl's. Resp. Facts, ¶ 13]. Fanelle then directed Plaintiff to take two additional weeks of leave, for a total of four weeks of leave. Id.
After their meeting, Fanelle contacted the EAP for the County of Camden and told the counselor, May Weldon ("Weldon"), that he was sending Moore over. [Defendant's Supplemental Brief in Support of Motion for Summary Judgment ("Def's. Supp. Br."), Ex. S]. Fanelle informed Weldon that: (1) Plaintiff had been diagnosed with leukemia; (2) Plaintiff had been ordered to take a total of four weeks off work; (3) Plaintiff was not eligible for sick leave as he was able to do his duties; and (4) Plaintiff had not taken a vacation in some time. [Id.].
Defendant claims that Plaintiff approached Fanelle in late November 2009 in a visibly emotional state and indicated that he was unable to perform his duties as a result of his medical complications. [DSMF at ¶ 12]. Plaintiff denies this meeting occurred and claims that he was out on vacation at the time Defendant claims it occurred. [Pl's. Resp. Facts at ¶ 12; PSMF at ¶¶ 32-35].
On December 7, 2009, Plaintiff turned in an FMLA leave request form. [PSMF at ¶ 49]. Two days later, on December 9, Fanelle called Plaintiff into his office and demoted him to his position as Captain, the position he held before being appointed Acting Chief. [PSMF at ¶ 54]. This demotion meant a decrease in salary from $80,000 as an Acting Chief to $62,000 as an Administrative Captain. [PSMF at ¶ 62]. On December 10, Plaintiff requested that he be given the position of Operations Captain because that position offered the ability to earn overtime and holiday pay; this request was granted [Id. at ¶ 61].
Plaintiff was reassigned to the main communications room where he was to supervise a shift of telecommunicators. [Pl's. Supp. Br. at 5]. According to Plaintiff, the communication room lacked sufficient air circulation and had a history of mold. [Compl. at 4]. When Plaintiff returned to work, his auto-immune system was depressed as a result of chemotherapy treatments. [PSMF at ¶ 104].
In or around February 2010, Plaintiff went out on continuous FMLA leave. [Id. at ¶¶ 93, 98]. Plaintiff's treating physician sent in a note dated April 9, 2010, indicating that an alternate work environment should be pursued because the Plaintiff's current position placed him in proximity to sick individuals. [Defendant's Motion for Summary Judgment ("Df.'s Mot."), Ex. H; PSMF at ¶ 104]. In or around this time period, Plaintiff requested a reassignment to an Administrative Captain position. [PSMF ¶ 112]. Plaintiff submits that the Administrative Captain position is carried out from an office instead of the moldy communications room and, according to Plaintiff, would have reduced his exposure to sick individuals and allowed him to work. [PSMF ¶ 119; Pl's. Supp. Br. at 6]. On May 13, 2010, Plaintiff's request was denied and Plaintiff appealed the decision arguing that other employees had been reasonably accommodated in the past. [PSMF at ¶¶ 121, 122, 123]. Defendant claims that the Administrative Captain position was not available because of budget constraints. [Def's. Supp. Br., Ex. R, p. 84, l. 4-8]. Plaintiff disputes this and argues that the position was available because Captain Bishop, an Administrative Captain, wished to be switched to operations [PSMF at ¶ 99].
Defendant attempted to accommodate the Plaintiff by offering hand sanitizer, facemasks, gloves, and regular cleaning of the work environment. [Pl's. Supp. Br. at 6]. Plaintiff claimed that this was inadequate and subsequently filed suit.
On April 14, 2010 Plaintiff filed a complaint in this Court premised on federal subject matter and supplemental jurisdiction. [Dkt. Ent. 1]. The Complaint alleges four counts:
(1) that removing the Plaintiff from the position of Acting Chief after missing time for the treatment of a serious medical condition and of retaliating against him by denying him reasonable accommodation on account of his missing time for the treatment of a serious medical condition, interfered with, restrained, and denied the Plaintiff his rights and benefits under the Federal Family and Medical Leave Act in violation of 29 U.S.C. 2601 et. seq.;
(2) that removing the Plaintiff from the position of Acting Chief on account of his illness and in denying the Plaintiff reasonable accommodation constituted violations of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-4.1;
(3) that the communications room constituted a health nuisance thus violating his rights under the Due Process Clause of 14th Amendment and actionable under 42 U.S.C. § 1983; and
(4) that, under the common law of the state of New Jersey, the Plaintiff is a party in interest that may seek an abatement of the aforementioned nuisance. [Compl. at 6-9].
Defendant moved for summary judgment on all counts on December 31, 2011. [Dkt. Ent. 25]. On September 25, 2012 the court administratively terminated Defendant's motion for summary judgment ...