J.R. v. City of Jersey City

J.R., Plaintiff-Appellant, v. CITY OF JERSEY CITY, Defendant-Respondent.

No. A-3200-19

Superior Court of New Jersey, Appellate Division

June 21, 2021

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 12, 2021

On appeal from the Superior Court of New Jersey, Law Division Hudson County, Docket No. L-4920-17.

Caruso Smith Picini, PC, attorneys for appellant (Ben Weathers, on the brief).

City of Jersey City Department of Law, attorneys for respondent (Chaunelle C. Robinson, on the brief).

Before Judges Sabatino, Currier and Gooden Brown.

PER CURIAM

Plaintiff J.R.^[1] is a former police officer employed by the Jersey City Police Department (JCPD). He was deemed unfit for duty after undergoing numerous psychological evaluations and eventually terminated. Thereafter, plaintiff filed a complaint against the City of Jersey City (defendant) alleging various violations of the Americans with Disabilities Act (ADA) ^[2] the New Jersey Law Against Discrimination (LAD), ^[3] and the New Jersey Civil Rights Act (CRA).^[4]After the conclusion of discovery defendant moved for and was granted summary judgment on all claims. We affirm.

I.

We derive our facts from the summary judgment record. Plaintiff is a Hispanic male who began his career with the JCPD in July 2005. His complaint contained a myriad of allegations which we need not repeat in detail but will summarize to enable a discussion of the applicable law.

Plaintiff alleges that after he questioned the legality of a police detail at a construction site in 2007, he was branded as a "rat" and his supervisors retaliated against him and his peers at work distrusted him.

During his employment, plaintiff gained 150 to 160 pounds, which he attributed to "[w]orking midnights, not sleeping well," and a "poor diet . . . ." He stated he was harassed and ridiculed about his weight by fellow officers and his superiors. Therefore, he complained to his captain about the hostile work environment. According to plaintiff, despite him undergoing successful weight reduction surgery in 2013, the harassment continued.

In 2008, plaintiff requested and was granted a transfer to a different district of Jersey City. His new supervisors described him as "a marginal performer who does as little [as] possible to get by under the radar" with "atrocious" report writing skills. The supervisors also stated that numerous officers would not work with plaintiff because he was a "malingerer" who attempts to get out of any required police action and does not help others with their work.

In October 2009, plaintiff was disciplined for failing to file an investigation report as ordered by a superior, leaving his assigned post without permission, utilizing a department vehicle without permission, and becoming belligerent and disrespectful when he was directed to file a report regarding his failure to file the investigation report. Plaintiff waived his right to a hearing and entered into a settlement agreement. He was found guilty of neglect of duty insubordination, failing to patrol his post, and failing to obey orders. He received a penalty of a suspension of five working days.

In February 2010, plaintiff was involved in a domestic violence dispute with his wife, following which his wife was granted a temporary restraining order (TRO). Thereafter, plaintiff's service weapon was confiscated and he was placed on modified duty. The following month, plaintiff's wife dismissed the TRO and consented to the return of plaintiff's service weapon.

The JCPD requested plaintiff undergo a psychological examination to assess his fitness for duty. After an interview and examination, Dr. Guillermo Gallegos, Ph.D., found that plaintiff had "limited empathy for others," was "loyal only to himself", was "not a team player", and "possess[ed] little tolerance for frustration or disappointment." Dr. Gallegos concluded that plaintiff was "in dire need of professional help . . . ." Because he was a potential danger to himself and others, the psychologist opined that plaintiff should not possess a firearm and he was not fit for duty.

After undergoing psychological treatment for several months, plaintiff was reevaluated and cleared to return to duty in September 2010.

A year later, plaintiff was involved in another domestic violence dispute with his wife.^[5] He alleged his wife had struck him and he was granted a TRO. However, after his wife filed assault charges against him and obtained a TRO, plaintiff was placed on modified duty and his service weapon was confiscated.^[6]

The JCPD again referred plaintiff for a fitness for duty examination. On March 22, 2012, Dr. Matthew Guller, J.D., Ph.D., examined and interviewed plaintiff. The doctor noted plaintiff intended to begin counselling with Dr. Paul Hriso, M.D. Although Dr. Guller found plaintiff fit for duty he noted that plaintiff's "performance on the job is also of concern." He recommended that JCPD "maintain some form of monitoring of [plaintiff]."

As noted by Dr. Guller, plaintiff was in the midst of several internal affairs investigations. Earlier in March, disciplinary charges were lodged against him, including failure to report for duty, lying to a superior about his shift hours, leaving an assignment, neglect of duty, and failure to maintain a working knowledge of orders and policies. Plaintiff had not reported to work on time and left work early without permission for over seven months. Plaintiff admitted he had not completed his required eight-hour shift for the past two years.

Plaintiff also violated JCPD's Policy on Social Media and Social Networking Websites. The policy, issued in March 2012, prohibits JCPD personnel from "posting any images or video that may reflect negatively on the Department." The policy states that officers are not to engage in social media while on duty and prohibits personnel from posting images or video of the following: officers in uniform; undercover officers; the City Seal; the JCPD name; badges; logos; patches; patrol vehicles; weapons; contraband; and tactical instruments.

In April 2015, Sergeant Marc Gigante wrote a letter to the Internal Affairs Unit (IAU) Commander, informing him that a woman filed a complaint reporting plaintiff's inappropriate social media activity and what she perceived as threats against her family in a social media message received from him. Gigante found plaintiff had not made specific threats against the complainant or her family.

However, while investigating the complaint, Gigante documented fifty-two violations of JCPD's social media policy on plaintiff's Instagram account.^[7]Gigante stated plaintiff had posted pictures of himself and other officers in uniform on his Instagram account during his work shifts and in the course of his duties. In many of the photos, plaintiff was wearing his uniform; in some pictures he was brandishing weapons or other tactical instruments. Other photos depicted JCPD vehicles and facilities.

The content of the Instagram posts caused Gigante concern because the text revealed plaintiff's "aggression toward the general public . . . ." Gigante found the content of the posts was "not the thinking of a mentally stable police officer." One of the most egregious social media posts showed plaintiff in uniform prominently displaying his middle finger with a caption that contained racist and derogatory language. Plaintiff also referred to himself as "a dangerous beast," and a predator such as a wolf or lion, and implied that normal citizens were "sheep that he [would] stalk and prey on."

Gigante wrote that "[plaintiff] paints [JCPD] in a very negative light by posting his personal beliefs and using extremely inappropriate language while wearing his uniform and appearing in [JCPD] vehicles and facilities."

Disciplinary charges were again brought against plaintiff for violating JCPD's social media policy, for conduct unbecoming an officer, and for failure to obey laws, regulations, and orders. Gigante recommended that plaintiff undergo an evaluation to determine if he was psychologically fit to remain a police officer. Plaintiff was placed on modified duty and required to surrender his service and personal weapons.

On April 24, 2015, Lewis Z. Schlosser, Ph.D., performed a psychological examination and determined plaintiff was not fit for duty. Dr. Schlosser administered eight psychological tests, conducted an in-depth diagnostic interview, and reviewed plaintiff's prior evaluations, the internal affairs file, disciplinary history, and numerous social media posts.

Dr. Schlosser concluded that plaintiff demonstrated "chronic and pervasive patterns of poor integrity, poor social competence and teamwork, impulse dyscontrol, and poor judgment; these are serious psychological liabilities in a police officer." He found plaintiff was not credible because he failed to disclose truthful information about his disciplinary history. In addition, the doctor stated that plaintiff "appears to be unable and/or unwilling to comprehend the seriousness of his actions that resulted in him being referred for a fitness for duty evaluation."

Based on psychological testing, background data from JCPD, and plaintiff's presentation during the evaluation, Dr Schlosser determined that plaintiff possessed traits associated with Histrionic Personality Disorder with Narcissistic personality features. He further opined that plaintiff's "life history demonstrated that mental health treatment and disciplinary actions have been unsuccessful at preventing negative incidents from recurring." He stated that plaintiff's "psychological condition or impairment" would "likely . . . interfere with his ability to safely and effectively function as a police officer" and...