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Carroll v. Delaware River Port Authority

United States District Court, D. New Jersey

July 29, 2014

ANTHONY J. CARROLL, Plaintiff,
v.
DELAWARE RIVER PORT AUTHORITY, Defendant.

MATTHEW S. WOLF, ESQUIRE, LLC, By: Matthew S. Wolf, Esq., Cherry Hill, New Jersey 08034, Counsel for Plaintiff.

DEASEY, MAHONEY, VALENTINI, & NORTH LTD, By: Carla P. Maresca, Esq., Haddonfield, New Jersey 08033, Counsel for Defendant.

OPINION

JOSEPH E. IRENAS, District Judge.

This matter comes before the Court on Plaintiff Anthony Carroll's Motion for Partial Summary Judgment against Defendant Delaware River Port Authority ("DRPA"). Plaintiff claims he was discriminated against based on his military service, in violation of the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. § 4311(a) ("USERRA"), when he was not given the opportunity to apply for a promotion in 2003 and not offered a promotion in 2010 and 2012. The denial of the 2012 promotion is the only claim at issue in this motion.[1] For the reasons stated below, the motion will be denied.[2]

I.

For the purpose of this motion, the Court resolves factual disputes in favor of Defendant, the non-movant.[3]

In August 1989, Plaintiff began his employment as a police officer with the DRPA. (PSMF[4] ¶ 1; Carroll Decl. ¶ 1.) In late 2012, Plaintiff applied for a promotion to the position of Sergeant with the DRPA. (PSMF ¶ 13; Carroll Decl. ¶ 8.) Plaintiff was not selected for the 2012 promotion. (PSMF ¶ 26; Carroll Decl. ¶ 10.)

There were two vacancies for the position of Sergeant. (PSMF ¶ 15.) To qualify for the position, there are a number of physical requirements that must be satisfied. The employee must be able to lift, bend, crawl, climb stairs and ladders, and carry objects over one hundred pounds, among other physical capabilities. (Plaintiff's Exh. B (DRPA 01623-24).) The employee must also have normal vision and normal hearing, corrected or uncorrected. (Plaintiff's Exh. B (DRPA 01624).) Further, the employee must pass the Fitness Indicator Test. (Plaintiff's Exh. B (DRPA 01623-24).)

Plaintiff is aware of the physical fitness requirements and admits that, at the time he applied for the promotion in 2012, he was physically unqualified without first receiving reconstructive surgery on his right shoulder. (DSMF ¶ 11; Defendant's Exh. A (Carroll Tr.) at 176:3-6, 177:19-178:1.)

Plaintiff requires reconstructive surgery because of an injury he sustained while on active duty in Iraq in 2009. Plaintiff intermittently served on active duty with the Pennsylvania National Guard from 1999 to 2008, at which time he was ordered into active duty for service in Iraq. (PSMF ¶ 4; Carroll Decl. ¶ 4.) As a result of his service in the National Guard, Plaintiff suffered cervical spondylosis, degenerative disk disease, high frequency sound loss, and torn rotator cuffs bilateral, among other injuries - some, if not all, of which he continued to suffer from at the time he was applying for the promotion.[5][6] (DSMF ¶ 10; Defendant's Exh. A (Carroll Tr.) at 22:10-21, 52:10-25.)

As part of the selection process, candidates were interviewed in November 2012, and a summary of candidate qualifications was prepared to help the decisionmaker, Chief Executive Officer John J. Matheussen ("Matheussen"), determine who would receive the promotions. (PSMF ¶¶ 16, 18; Plaintiff's Exh. B (DRPA 01636).)

In the summary of Plaintiff's qualifications, several references were made to Plaintiff's absence from and inactivity within the department. (Plaintiff's Exh. B (DRPA 01634).) For instance:

• "He is currently out of the department injured from military leave and has been for four years."
• "In responding to questions, he did not answer some questions, due to not being up to ...

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