POINT I PLAINTIFF HAS PRESENTED NO PROOF THAT HE IS DISABLED UNDER THE AMERICANS WITH DISABILITIES ACT The Americans with Disabilities Act (ADA) prohibits discrimination "against a qualified individual with a disability because of the disability of such individual." 42 U.S.C. §12112(a). The statute defines an individual as disabled if he or she has "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) [is] regarded as having such an impairment." 42 U.S.C. §12102(2). An individual need only satisfy one of these parts to be considered an individual with a disability under the ADA. Merely having an impairment does not make one disabled for purposes of the ADA. Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 195 (2002). As delineated by the United States Supreme Court, "major" means important, thus the phrase "major life activities" refers to those activities that are of central importance to daily life. Id. at 185. In order for performing manual tasks to fit into this category, the tasks in question must be central to daily life. To be substantially limited in the specific major life activity of performing manual tasks, therefore, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most
The Court noted that "[I]n assessing whether a plaintiff has a disability, courts have been careful to distinguish impairments which merely affect major life activities from those that substantially limit those activities." Id- at 151; citing Ryan v. Grae & Rvbicki, P.C., 135 F.3d 867, 870 (2nd Cir. 1998). The Court must determine "whether the impairment at issue substantially limits the plaintiffs ability to perform one of the major life activities contemplated by the ADA, not whether the particular activity that is substantially limited is important to him." Id.; citing Runnebaum v. NationsBank of Maryland, 123 F.3d 156, 170 (4th Cir. 1997); See Abbott v. Bragdon. 107 F.3d 934, 941 (1st Cir. 1997) (suggesting, without deciding, that the need for a case-by-case analysis of disability "does not necessarily require a corresponding case-by-case Similarly, plaintiff has failed to establish that he is disabled under the American's with Disabilities Act. He has testified to a social security determination without providing any proof. Bussel Cert., Ex. B (Mosher dep. 9:2-7). More importantly, he has provided no competent medical proof that he suffers from such a disability. His bare allegations, we submit, are insufficient as a matter of law. PLAINTIFF HAS FAILED TO PROVE A CAUSE OF ACTION UNDER THE NEW JERSEY LAW AGAINST DISCRIMINATION The New Jersey Law Against Discrimination (LAD), unlike the ADA, has no "major life activities handicap" requirement. It states it shall be "unlawful employment practice, or unlawful discrimination for an employer, because of the ... disability, ... of any individual ... to refuse to hire or employ or to bar or to discharge or require to retire, unless justified by lawful considerations other than age, from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment..." Wright v. L-3 Communications Corp.. 227 F. Supp. 2d 293 (2002); N.J.S.A. §10:5- (a) Plaintiff was not Handicapped as Required Under the LAD The term "handicapped" as outlined in the LAD is not restricted to "severe" or "immutable" disabilities, and has been interpreted as significantly broader than that of the ADA. Viscik v. Fowler Equipment Co., 173 N.J. 1, 16 (2002); See Failla v. City of Passaic. 146 F.3d 149, 154 (3rd Cir. 1998). Pursuant to N.J.S.A. 10:5-5(q), there are two specific categories of handicap: physical and non-physical. Viscik, 173 N.J. at 15. To meet the physical standard, a plaintiff must prove that he or she is (1) suffering from physical disability, infirmity, malformation or disfigurement (2) To meet the non-physical standard, a plaintiff must prove that he or she is suffering (1) from any mental, psychological or developmental disability (2) resulting from an anatomical, psychological, physiological or neurological condition that either (a) prevents the normal exercise of any bodily or mental functions or (b) is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques. Id. at 16. In Clowes v. Terminix International Inc., 109 N.J. 575 (1988), and more recently in Visick, the Supreme Court has held that where the existence of a handicap is not readily apparent, expert medical evidence is required. Id. We submit that agoraphobia is a mental disability as classified under the non-physical standard set forth within the parameters of N.J.S.A 10:5-5(q). Plaintiff considers his "disability" a "mental (psychological/physiological) impairment." Bussel Cert., Ex. C. (Employment Interrog.). Accordingly, it is not readily apparent and requires medical proof. Plaintiff however has failed to submit evidence
b) If it is found Plaintiff is Handicapped, he was not an Employee for Purposes of the LAD Plaintiff, however, was a volunteer for the Borough of Mendham as he satisfied the definition of volunteer under section 29 of the Code of Federal Regulations. He was an individual performing services for a public agency "for civic, charitable, or humanitarian reasons," and he provided those services "without promise, expectation, or receipt of compensation for services rendered." Furthermore, he offered his services, "freely and without pressure or coercion, direct or implied," as in his deposition he stated that it was he who approached the Mayor of Mendham with an intention to create a Borough website. 29 C.F.R.
(c) Plaintiff is not Entitled to Punitive Damages under the LAD EVEN IF IT IS FOUND PLAINTIFF IS DISABLED UNDER THE ADA AND THE LAD. HE HAS FAILED TO ESTABLISH A PRIMA FACIE CASE OF DISABILITY DISCRIMINATION Under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), an ADA plaintiff must first establish a prima facie case of discrimination, after which the burden shifts to the opposing party to articulate a legitimate, non-discriminatory reason for its action. If this burden is met, the presumption of intentional discrimination disappears but the plaintiff can still prove disparate treatment. 42 U.S.C. §12101 et seq. To establish a prima facie case the plaintiff must prove: "(i) he belongs to a protected class; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." McDonnell Douglas, 411 U.S. at 802. If the plaintiff can prove he suffers from a physical or mental impairment that substantially limits one or more of his major life activities, has a record of such impairment, or is regarded as having such impairment, then he belongs to a protected class. 42 U.S.C. §12102(2). If plaintiff provides proof, which I submit he has not, that he is disabled, he must still satisfy the other three elements required under the McDonnell Douglas analysis. Due to plaintiffs actions the defendant thought it best to find a new webmaster. Plaintiff was provided the opportunity to be webmaster for approximately two years, therefore he would not have been rejected as the McDonnell Douglas test outlines. Nor did the position remain open while plaintiff was rejected from the position. Plaintiff continued as webmaster until a replacement was found at which time he was relieved. He was also aware that defendant was looking for a volunteer webmaster as plaintiff was asked to post on the website the following: "Volunteer As plaintiff was replaced because of his actions, and not because of his disability, he fails to make a prima facie claim for disability discrimination under the ADA or the LAD. PLAINTIFF SUFFERED NO DAMAGES UNDER THE ADA OR THE LAD Plaintiff expressed that he would like copies of ALL the public information the town can provide within the limits of relevance, convenience, and cost practicality. Bussel Cert. Ex. H (Correspondence). He also recognized that his requests were "unusual" and "broad." Bussel Cert. Ex. H (Correspondence). In an e-mail dated January 30, 2004, plaintiff persisted in his requests for copies of "ANY 'public' information, on any medium, provided in any manner to ANY AND ALL publishers or media representatives since my last request on 1/23/04." Bussel Cert. We submit the plaintiff has failed to demonstrate he was not accommodated because he was handicapped or disabled. Instead, defendant made every effort to provide plaintiff his requests that were permitted under the law. PLAINTIFF FAILS TO PLEAD A CAUSE OF ACTION UNDER THE OPEN PUBLIC RECORDS ACT The Open Public Records Act (OPRA) became effective on July 7, 2002. Serrano v. South Brunswick Tp.. 358 N. J. Super. 352, 363 (App. Div. 2003). OPRA was intended by the Legislature to make records of a "public agency" "readily accessible for inspection, copying, or examination by the citizens of this State." The Times of Trenton Pub. Corp. v. Lafayette Yard Community Development Corp., 368 N.J. Super. 425, 442 (App. Div. 2004); N.J.S.A. 47:1A-1. With respect to the public's right of access the Serrano Court further expressed: "government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest, and any limitations on the right of access accorded by P.L. 1963, c. 73 (C.47:1A-1 et seq.) as amended and supplemented, shall be construed in favor of the public's right of access." ]d.; N.J.S.A. 47:1A-1. et seq. Accordingly, an action seeking protection under OPRA seeks access to public records. The plaintiff, however, is seeking only monetary damages for a violation of his civil rights. Bussel Cert. Ex. B (Mosher dep. pp. 66:23-67:24). He does not demand that the Borough of Mendham provide him with government records. Therefore, the plaintiff fails to plead a cause of action under the newly enacted OPRA. PLAINTIFF FAILS TO STATE A CAUSE OF ACTION FOR CONVERSION New Jersey law defines conversion as "essentially the wrongful exercise of dominion and control over the property of another in a manner inconsistent with the other person's rights in that property." Communications Programming, Inc. v. Summit Mfg., Inc., 1998 WL 329265. (D.N.J. 1998); citing McAdam v. Dean Witter Reynolds. Inc.. 896 F.2d 750, 771 (3rd Cir. 1990); See also Mueller v. Technical Devices Corp.. 8 N.J. 201, 207 (1951). Plaintiff here asserts defendants engaged in conversion with regard to his services. Plaintiff claims he performed a great deal of work on the Borough of Mendham's website while they were looking for a new volunteer webmaster. As a result he believes he was taken advantage of by the defendant. Plaintiff however was a volunteer whose services were offered freely and without pressure or coercion. See Todaro v. Township of Union. 40 F. Supp. 2d 226 (D.N.J. 1999); 29 C.F.R. §553.101{c). The Department of Labor defines a volunteer to be "[a]n individual who performs hours of service for a public agency for civic, charitable, or humanitarian reasons, without promise, expectation or receipt of compensation for services rendered...." Id. at 229; 29 C.F.R. §553.101(a). As previously mentioned, plaintiffs deposition testimony reveals he considered himself "on the public dole". Bussel Cert., Ex. B (Mosher dep. Nonetheless, plaintiffs action would be time barred, as "every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within 2 years next after the cause of any such action shall have accrued." N.J.S.A. 2A:14-2. Plaintiff alleges that Mayor Kraft made a comment at a public session in February of 2001 that the Borough was looking for a new webmaster, and that he was not informed of this decision until four months later. In the interim, he contends that he performed work benefiting the Borough. Plaintiff however did not file suit until October 31, 2003, more than two years after he alleges his services were "stolen." As a result, plaintiffs claim for injury due to conversion cannot succeed even if it is determined his services were "stolen." SUMMARY JUDGMENT IS A PROPER REMEDY WHERE. AS HERE. THERE IS NO GENUINE ISSUE OF MATERIAL FACT CHALLENGED AND MOVANT IS ENTITLED TO JUDGMENT AS A MATTER OF LAW. Summary judgment should be granted since there is no genuine issue of material fact. A dispute of fact is genuine if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom, could sustain a judgment in favor of the non-moving party. Brill v. The Guardian Life Insurance Co. of America, et al.. 142 N.J. 520 (1995). This falls within the guidelines of Rule. 4:46-2 which states that summary judgment should be granted: [I]f 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 challenged and that the moving party is entitled to a judgment or order as a matter of law. Id, In Brill, supra, the Supreme Court expanded the purview of Rule. 4:46-2: [In] deciding a motion for summary judgment... the determination of whether there exists a genuine issue with respect to a material fact challenged requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational fact finder to resolve the alleged disputed issue in favor of the non-moving party. This assessment of the evidence is to be conducted in the same manner as that required under Rule. 4:37-2(b). Id. at 523 (emphasis added). When reviewing the evidence required under Rule 4:37-2(b) the Court must determine, under the same burden of persuasion as would apply if the matter were at trial, "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Brill at 536; (quoting Anderson v. Liberty Lobby Inc., 477 U.S. 242, 251-252 (1986). The rationale upon which this rule is premised was enunciated in Judson v. People's Bank and Trust Company of Westfield, 17 N.J. 67, (1954), wherein the Court stated: It is designed to provide a prompt, businesslike and inexpensive method of disposing of any cause which a discriminating search of the merits and the pleadings, depositions and admissions on file, together with the affidavits submitted on the motion clearly shows not to present any genuine issue of material fact requiring disposition at a trial.... In conjunction with the pretrial discovery and pretrial conference procedures, the summary judgment procedure aims at "the swift uncovering of the merits and either their effective disposition or their advancement toward prompt resolution by trial." Id. at 73-74 (alterations in general) (citations omitted). In essence, the proceedings are designed to "pierce [] the allegations of the pleadings" and to demonstrate that the facts are contrary to what was alleged. Rankin v. Sowinski. 119 N.J. Super. 393, 400, (App. Div. 1959). However, it is settled that where there is a prima facie right to summary judgment, the party opposing the motion is required "to demonstrate by competent evidential material that a genuine Therefore, a party's conclusion and pleadings, without factual support in tendered affidavits, will not and should not defeat a meritorious application for summary judgment. United States Pipe and Foundry Company v. American Arbitration Association. 67 N.J. Super. 384, (App. Div. 1961); Al Kaplan & Son, LTD. v. Housing Authority of City of Passaic. 42 N.J. Super. 230, (App. Div. 1956). Based on the foregoing, we request that the Court grant summary judgment dismissing the Complaint with prejudice.
Respectfully submitted,
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