HELMRICH v. MOUNTAIN CREEK RESORT INC. et al
Filing
43
OPINION. Signed by Chief Judge Jose L. Linares on 10/15/2018. (dam, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT Of NEW JERSEY
Civil Action No.: 15-7939 (JLL)
RICHARD HELMRICH,
Plaintiff,
OPINION
v.
MOUNTAIN CREEK RESORT INC., eta!.,
Defendants.
LINARES, Chief District Judge.
This matter comes before the Court by way of a Motion for Summary Judgment brought
by Defendants Mountain Creek Resort Inc. (“Mountain Creek”), Appalachian Liquors Corp.
(“Appalachian”), Andrew Mulvihill, Julie Mulvihill, William Polchinski, Rabih Younes, and
Darren Heaps (collectively, “Defendants”).
(ECF No. 33).
Plaintiff Richard Helrnrich has
submitted opposition, (ECf No. 37), to which Defendants have replied, (ECF No. 42). The Court
decides this matter without oral argument pursuant to Rule 78 of the Federal Rules of Civil
Procedure. For the reasons set forth below, the Court grants Defendants’ Motion insofar as it
relates to Plaintiffs federal law claims and dismisses Plaintiffs remaining state law claims without
prejudice and with leave to reinstate them in state court.
I.
BACKGROUND
Defendant Mountain Creek is a ski resort and water park located in Vernon, New Jersey.
(Defs. 56.1
¶ 1).
Plaintiff Richard Helmrich was an employee of Mountain Creek until December
These background facts are taken from the parties’ statements of material facts, pursuant to Local Civil Rule 56.1,
(ECf No. 33-1, Defendants’ Rule 56.1 Statement of Material facts (“Defs. 56.1”); ECf No. 38, Plaintiffs Response
2014. (Defs. 56.1
¶
19). Plaintiff started as a part-time, seasonal employee in 199$ and worked
his way up to the salaried position of Food and Beverage Manager by 2011. (Defs. 56.1
¶J 2—3).
In December of 201 1, Plaintiff was promoted to Assistant Director of Food and Beverage, in which
role Plaintiff was responsible for overseeing the day-to-day food and beverage operations of the
resort, hiring staff, planning and executing events, submitting payroll, and managing orders. (Defs.
56.1
Plaintiff remained in this position until December 29, 2014, when he resigned. (P1.
¶ 4—5).
$upp. 56.1
¶
Defendant William Polchinski was the Director of food and Beverage at
48).
Mountain Creek and Plaintiffs direct supervisor until Polchinski was promoted in December of
2014. (Defs. 56.1
¶ 6,
Creek. (Defs. 56.1
¶
15). Defendants Andrew and Julie Mulvihill2 were co-owners of Mountain
22). Defendant Rabih Younes is and was at all relevant times the Vice
President of Hospitality at Mountain Creek. (Defs. 56.1
¶
16). Defendant Darren Heaps is an
employee of Mountain Creek who replaced Polchinski as Director of Food and Beverage in
December of2014. (Defs. 56.1
¶
15).
Plaintiff is a six-foot-tall, 35-year-old male, weighing between 283 and 330 pounds. (Defs.
56.1
¶
7). Plaintiffs body mass index (“BMI”) has ranged between 40.27 and 47.53. which is
above the threshold for obesity. (P1. Supp. 56.1 ¶I 2—3). Between 200$ and 2011, Plaintiff was
diagnosed by his primary care physician as medically obese, a condition related to Plaintiffs
congenital heart disease. (Defs. 56.1
¶ 8;
P1. Supp. 56.1
¶
1). Plaintiff testified that he informed
to Defendants’ Statement of Material Facts (“P1. Resp. 56.1”); ECf No. 39. Plaintiffs Supplemental Statement of
Material Facts (“P1. Supp. 56.1”); and ECf No. 42-1. Defendants’ Response to Plaintiffs Supplemental Statement of
Facts (“Defs. Resp. 56.1”)): as well as from Plaintiffs Complaint (ECF No. 1) (“Compl.”). To the extent that Plaintiff
admits to any material facts as stated by Defendants, the Court will cite only to “Defs. 56.1” and the relevant paragraph
numbers. The Court will “disregard all factual and legal arguments. opinions and any other portions of the 56. 1
Statement[s] which extend beyond statements of fact.” Globespamirata, Inc. v. Tex. Instrument, Inc., No. 03-2854,
shall
2005 WI 3077915, at *2 (D.N.J. Nov. 15, 2005); see also I. Civ. R. 56.1 (“Each statement of material facts
not contain legal argument or conclusions of law.”).
2
In the interest of clarity, the Court refers to Andrew Mulvihill as “Mulvihill” and to Julie Mulvihill as “Julie
IVlulvihill.”
.
2
.
.
Polchinski, Mulvihill, and Younes of his weight and heart conditions, but that he did
them with any formal documentation. (Defs. 56.1
¶ 8;
P1. Supp. 56.1
¶ 6).
not
provide
The parties agree that,
sometime between 2012 and 2014, Plaintiff provided Polchinski with a note from Plaintiffs
cardiologist restricting the amount of weight that Plaintiff was medically permitted to lift. (Defs.
56.1
¶ 9).
The parties dispute the extent to which Plaintiff adhered to this restriction while at work.
(Defs. 56.1
¶ 9;
P1. Resp. 56.1
¶ 9).
However, the parties do not dispute that between 2013 and
2015, Plaintiff regularly exercised with a personal trainer and engaged in other physical activity.
(Defs. 56.1
¶ 26—28).
Plaintiff does not allege that his weight made it difficult for him to walk or
stand or that it otherwise affected his ability to perform his job responsibilities, aside from the lift
restriction prescribed by Plaintiffs cardiologist. (Defs. 56.1
¶ 9, 28).
During the course of his employment at Mountain Creek, several individual defendants
regularly made observations concerning Plaintiffs weight.
Defendants do not dispute that
Mulvihill directed several comments to Plaintiff about his weight, including comments made in
front of other employees and investors. (P1. Supp. 56.1
¶
7. 13, 15). In 2013, Mulvihill told
Plaintiff, within earshot of other employees, that Plaintiff “needed to lose weight,” after which
Plaintiff began to see a personal trainer. (ECf No. 33-4, Ex. B (“P1. Dep. Tr.”) at 44:13-46:13).
On another occasion, Mulvihill said to Plaintiff, in front of Polchinski, that Plaintiff was “still
overweight” and “need[ed] to work harder at the gym,” and “need{ed] to lose this weight.” (P1.
Dep. Tr. at 46:1 8-47:5). Plaintiff testified that “at least four or five” times, as Plaintiff was walking
up a hill at Mountain Creek. Mulvihill drove past Plaintiff in a golf cart and loudly made comments
such as, “You need to keep walking this hill,” “You need to lose this weight,” and “You’re still
fat.” (P1. Dep. Tr. at 47:16-48:16). On at least one of these occasions, Plaintiff was walking with
a group of people who heard Mulvihill’s comment and laughed. (P1. Dep. Tr. at 48:18-25). On
another occasion, Mulvihill told Plaintiff in front of other people that he “needed to keep going to
[the trainer]” because Plaintiff “hadn’t reached [his] goal.” (P1. Dep. Tr. at 49:7-24). Plaintiff
further testified that in September of 2014, Mulvihill remarked in front of a group of potential
Mountain Creek investors that Plaintiff “still [had
not]
lost that weight.” (P1. Dep. Tr. at 50:18-
51: 15). Mulvihill also said to Plaintiff, “you lost some weight, but there’s still plenty more to go,”
and “keep it up, you’ll lose that weight eventually.” (Defs. 56.1
¶ 22).
Defendants maintain that
Mulvihill, who at one time worked with the same personal trainer as Plaintiff, was merely
“follow[ing up] with [Plaintiff] about his training” as part of an effort “to help him lose weight.”
(Defs. 56.1
¶J 22).
In accordance with Mountain Creek’s harassment policy, Plaintiff notified Polchinski, his
immediate supervisor, of at least one of these incidents. (P1. Supp. 56.1
¶J 9; P1.
Dep. Tr. at 46:18-
47:7). The record does not make clear when or how many times Plaintiff raised his discomfort to
Polchinski concerning Mulvihill’s comments, nor is it clear what—if anything—Polchinski did
about it. Nevertheless, the comments continued. In December of 2014, Andy Lagana, a chef at
Mountain Creek, remarked in front of Polchinski and other employees that Plaintiff was “too large”
and not “attractive” enough to approach customers’ tables in the Mountain Creek restaurant. (P1.
Supp. 56.1
¶J
¶
16). Plaintiff again complained to Polchinski about this comment. (P1. Supp. 56.1
17—18). In response, Polchinski told Plaintiff that “it was Andy being Andy and that’s just the
way things were.” (P1. Dep. Tr. at 53:25-6). In addition, Plaintiff alleges that on one occasion,
Julie Mulvihill told Plaintiff to “move quicker” when he was setting up for a banquet. which he
interpreted to be a negative comment regarding his weight. (P1. Dep. Tr. at 74:13-75:3).
Mountain Creek’s official policy sets forth a formal complaint and investigation procedure
for employee claims of harassment and discrimination.
4
(Defs. 56.1
¶
20).
Plaintiff, though
familiar with the policy, did not file a formal complaint with Human Resources concerning any of
the comments he received from Mulvihill or Lagana. (Defs. 56.1
¶ 21).
The parties dispute the
extent to which Mountain Creek encourages utilization of its formal procedures as a practical
matter. (P1. Resp. 56.1
¶ 21).
Plaintiff testified that he chose not to pursue a formal harassment
or discrimination complaint with Human Resources because of a perception that employees who
did so were either “swept under the table” or “treated differently” afier they complained. (P1. Resp.
56.1
¶ 21; P1.
Supp. 56.1
¶ 19—20).
According to Plaintiff, “it was definitely
not
encouraged to go
to HR over matters like this, which is why I never went there.” (P1. Dep. Tr. at 54:21-23).
Over the course of Plaintiffs employment under Polchinski’s supervision, Plaintiff and
Polchinski had a number of discussions verbally and via e-mail regarding Plaintiffs performance.
(P1. Supp. 56.1
¶ 23; P1. Dep. Tr.
at 58:2-12). In July of 2014, Plaintiff received a written warning
from Polchinski for “[s]ub-[s]tandard work perfonnance.” (ECF No. 33-4, Ex. C; Defs. 56.1
¶
10). Polchinski cited, inter ella, Plaintiffs failure to manage inventory and care for company
property, failure to properly train and supervise staff, failure to maintain standards of cleanliness,
and failure to address cash register discrepancies. (Defs. 56.1
¶
10). Plaintiff maintains that the
written warning cited him for poor performance in “areas of responsibility that were delegated to
•
.
.
Polchinski.” (P1. Supp. 56.1
a list of things
•
.
.
¶ 24).
Specifically, Plaintiff testified that he was “written up for
[that were] never officially appointed to [him],” and that he had expressed to
Polchinski “numerous times” that these were among Polchinski ‘5 responsibilities, not Plaintiffs.
(P1. Dep. Tr. at 22:25-23:7). Plaintiff believes that he received this “write-up” in retaliation for
raising those concerns with Polchinski. (P1. Opp. Br. at 12).
Plaintiff discussed the written
warning with Polchinski and Mountain Creek’s Human Resources Manager, Jennifer Kucharik.
(Defs. 56.1
¶J 11—12).
In that meeting, Plaintiff expressed his view that Polchinski was delegating
5
additional duties to Plaintiff beyond the scope of his job responsibilities and holding him to a
higher standard than his subordinates. (Defs. 56.1
J
11—12). Plaintiffinformed Kucharik that he
felt he was being “treated differently” by Polchinski, (P1. Supp. 56.1
¶J
26, 28), and that
Polchinski’s attitude toward him was arrogant and disrespectfttl, (P1. Dep. Tr. at 23:16-24:15).
However, Plaintiff did not tell Kucharik or Polchinski that he felt he was being treated differently
because of his weight. (P1. Dep. Tr. at 24:16-19).
In December of 2014, the position of Director of food and Beverage opened when
Polchinski was promoted.
(Defs. 56.1
¶
Mountain Creek’s official policy “encourages
13).
employees to assume higher-level positions,” and states that an employee seeking a promotion
“will be considered for new positions along with other applicants.” (Defs. 56.1
¶
14). Plaintiff
claims, and Defendants deny, that Plaintiff had been promised a promotion by Polchinski or
56.1
¶ 31).
However, Plaintiff
was not told about the vacancy or encouraged to apply. (P1. Supp. 56.1
¶ 29).
Defendant Heaps,
Younes. (P1. Dep. Tr. at 64:10-24; P1. Supp. 56.1
¶ 31; Defs. Resp.
who had previously worked under Plaintiff as a restaurant manager at Mountain Creek, was chosen
for the position. (P1. Supp. 56.1
¶ 29;
P1. Dep. Tr. at 29:14-19).
Plaintiff met with Younes to discuss the reasons for which Plaintiff was not considered for
the position of Director of Food and Beverage.
(Defs. 56.1
¶
16).
Certain of Plaintiffs
qualifications are undisputed: Plaintiff holds an associate’s degree in hospitality business
management from Art Institute of New York, and Plaintiff had been an employee of Mountain
Creek since 1998, working his way up to the role of Assistant Director of Food and Beverage. (P1.
Supp. 56.1
¶J 32—3 5).
At his
meeting
with Younes, Plaintiff expressed his disappointment at not
having been told about the vacancy, but he did not tell Younes that he felt he was not promoted
because of his weight. (Defs. 56.1
¶ 16).
Younes explained to Plaintiff that he was not chosen for
6
the promotion because he failed to improve his work performance after he received the July 2014
written warning, and because he lacked experience in cost analysis and lodging that were required
for the position. (Defs. 56.1
¶
17). In an e-mail Younes sent to Kucharik, Polchinski, and Heaps
on December 22, 2014, Younes explained that he told Plaintiff “we have a high belief in him and
will prep him for his ftitttre growth.” (ECF No. 3 3-4, Ex. F).3 Younes also offered to personally
“train [Plaintiff] for any future opening at [Mountain Creek] or as [a Food & Beverage] Director”
for an affiliated property. (ECF No. 33-4, Ex. F). Furthermore, Younes encouraged Heaps to
“give [Plaintiff] the time and chance to come back as part of the team, as he is a good asset to your
team and a great second man in command.” (ECF No. 33-4, Ex. F). Plaintiff claims that Younes
suggested to Plaintiff at their meeting that Younes was considering reversing the selection of
Heaps as food and Beverage Director and that Younes had been “unaware of [Plaintiffs]
credentials” prior to the meeting. (P1. Supp. 56.1 ¶j 40—41).
Plaintiff further claims that his colleagues and supervisors continued to mistreat him in
ways unrelated to his weight following the promotion of Heaps. Plaintiff testified that Heaps
began “harassing” Plaintiff about his management style and became excessively critical of
Plaintiff. (P1. Dep. Tr. at 76:24-77:23). Plaintiff also testified that Younes blew kisses at Plaintiff
on at least two occasions. (P1. Dep. Tr. at 62:4-17; P1. Supp. 56.1
¶
44). Plaintiff did not tell
Younes that this made him uncomfortable or raise the matter with Human Resources. (P1. Dep.
Tr. at 62:21-63:7).
Plaintiff argues that the December 22, 2014 e-mail from Younes is unauthenticated and that therefore this Court may
not rely upon it at the summary judgment stage pursuant to Fed. R. Civ. P. 56(c) and Fed. R. Ev. 901(a). (P1. Opp.
Br. at 29—32). “The burden of proof for authentication is slight. All that is required is a foundation from which the
fact-finder could legitimately infer that the evidence is what the proponent claims it to be.” Yama v. US. INS.. 334
F. Supp. 2d 662, 67$ (D.N.J. 2004) (quoting McOtieenev v. Wilmington Trust Co.. 779 F.2d 916. 928 (3d Cir. 1985)
(quotation marks omitted)). Defendants have since filed an affidavit in which Younes. the custodian of the e-mail,
affirms that it is authentic. (ECF No. 42-3, Ex. A). The Court therefore finds that this e-mail, supported by Younes’s
affidavit. may be considered.
7
Plaintiff subsequently resigned fiorn his employment at Mountain Creek on December 29,
2014, citing what he perceived to be a hostile work environment. (Defs. 56.1
¶ 19; P1. Scipp. 56.1
¶f 48). Plaintiff testified that he resigned as a result of harassment, and that his decision was not
motivated by Mountain Creek’s failure to promote him. (P1. Dep. Tr. at 80:18-81:5). Plaintiff
sued Mountain Creek and the rest of the Defendants alleging violations of the Americans with
Disabilities Act (“ADA”) (Counts I—lI), and the New Jersey Law Against Discrimination
(“NJLAD”) (Counts 1114—V1II), as well as defamation (Count IX) and infliction of emotional
distress (Count X).5
II.
PROCEDURAL HISTORY
Plaintiff initiated this action on March 10, 2015. Hetmrich v. Mountain CreekResort, No.
15-1768 (D.N.J.) (dismissed July 20. 2015). On July 20, 2015, this Court granted Plaintiffs
Motion for Voluntary Dismissal without prejudice for his failure to exhaust administrative
remedies. Id.
Plaintiff subsequently sought and obtained a right-to-sue letter from the Equal
Employment Opportunity Commission (“EEOC”) and refiled this action on November 6, 2015.
(ECf No. 1). In May of 2017, Mountain Creek filed for Chapter ii bankruptcy, and shortly
thereafter the Court referred all claims in this proceeding to federal bankruptcy court. (ECF No.
28). The Court reopened the case in March of 2018. (ECf No. 29). Defendants now move for
summary judgment on all of Plaintiffs claims, arguing generally that: (1) Plaintiff does not meet
the definition of a disabled person under the ADA or NJLAD; (ii) a reasonable jury could not
conclude that Plaintiff was regarded as disabled under the ADA or NJLAD; (iii) even if Plaintiff
The Complaint does not plead the statutory provision under which Plaintiff brings his claim for hostile work
92—98). Plaintiffs Opposition Brief advances arguments based on NJLAD’s hostile
environment. (See Cornpl.
work environment provisions, and none based on the ADA. (See P1. Opp. Br. at 19-24). Therefore, the Court
construes Count III as a hostile work environment claim under NJIAD. and not under the ADA.
Plaintiffs Complaint lists two “Fifth Cause[s] of Action.” (Sec’ Compi. ‘T 103 -22). The Court therefore numbers
Plaintiffs second “Fifth Cause of Action” as Count VI. his “Sixth Cause of Action” as Count VII, and so forth.
1
8
did satisfy either of those standards. Plaintiff has not shown that Defendants discriminated against
him on the basis of a disability or perceived disability; (iv) Plaintiff has
not
demonstrated that the
comments he received constituted a hostile work environment under NJLAD; and (v) Defendants
are entitled to judgi-nent as a matter of law on Plaintiffs remaining claims. (See general/v ECF
No. 33-2 (“Def Mov. Br.”)).
III.
LEGAL STANDARD
Summary judgment is appropriate when, drawing all reasonable inferences in the
non-movant’s favor, there exists no “genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[T]he moving party must show
that the non-moving party has failed to establish one or more essential elements of its case on
which the non-moving party has the burden of proof at trial.” Mccabe v. Ernst & Young, LLP,
494 f.3d 418, 424 (3d Cir. 2007) (citing Celotex Coip. v. Catrett, 477 U.S. 317, 322—23 (1986)).
The Court must consider all facts and their reasonable inferences in the light most favorable
to the non-moving party. See Pa. Coal Ass’n
i.
Babbitt, 63 F.3d 231, 236 (3d Cir. 1995). If a
reasonable juror could return a verdict for the non-moving party regarding disputed issues of
material fact, summary judgment is not appropriate. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 24$ (1986). “[A]t the summary judgment stage the judge’s function is not himself to weigh
the evidence and determine the truth of the matter but to determine whether there is a genuine issue
for trial.” Id. at 249.
IV.
A.
ANALYSIS
ADA: Actual Disability
Plaintiff claims that, in failing to promote him
to
the position of Director
of
Food and
Beverage, Defendants discriminated against him on the basis of a disability in violation of the
9
ADA. (Compi.
¶J
87—88). In order to establish aprinia Icicle case of discrimination under the
ADA, a plaintiff must demonstrate by a preponderance of evidence that: “(I) he is a disabled
person within the meaning of the ADA; (2) he is otherwise qualified to perform the essential
functions of the job, with or without reasonable accommodations by the employer; and (3) he has
suffered an otherwise adverse employment decision as a result of discrimination.” Lescoe v. Pci.
Dep ‘t of Corr.-SC’Ifrackville, 464 F. App’x 50, 52 (3d Cir. 2012) (quoting Gaul v. Lucent Tech.,
Inc., 134 F.3d 576, 580 (3d Cir. 1998)). A person is “disabled” within the meaning of the ADA
when he or she is “substantially limited in a major life activity”—in other words, when he or she
is “unable to perform a major life activity that the average person in the general population can
perform.” Lescoe, 464 F. App’x at 52 n.5 (quoting Walton v. Mental Hectith Ass ‘a, 168 F.3d 661,
665 (3d Cir. 1999)).
The Third Circuit has not determined categorically whether obesity is a disability that
substantially limits a major life activity under the ADA. See Id. at 53. In Lescoe, the Third Circuit
considered whether a Pennsylvania colTections officer suffering from obesity was “disabled”
within the meaning of the ADA. The plaintiff in that case, whose medical records indicated that
he was morbidly obese, suffered from “mild lower back and foot pain” after standing for long
periods as a result of his obesity. Id. at 52. The plaintiff claimed that he was entitled under the
ADA to use a chair as a reasonable accommodation. Id. The Court held that the plaintiff “failed
to establish by a preponderance of the evidence a prima facie case that he was a qualified individual
with a disability under the ADA.” Id. at 53. The Court reasoned that the plaintiff “did not establish
any major life activities that were adversely affected by his weight,” noting that he had passed
various physical exams to obtain his position. Id. At least one district court in this Circuit has
likewise rejected ADA claims based on obesity where the plaintiffs weight did
10
not
substantially
limit a major life activity. See Ni v. Rite Aid ofl’LJ No. 10-1522, 2010 WL 2557523, at *3 (D.N.J.
,
June 22, 2010) (“Except for rare circumstances, obesity is not considered a disability [under the
ADA].”).
Defendants argue that they are entitled to summary judgment on Plaintiffs actual disability
claim because Plaintiff “is not disabled within the meaning of the [ADA].” (Def. Mov. Br. at 12).
The Court agrees. Without excluding the possibility that obesity may under other circumstances
constitute a disability under the ADA, the Court finds that it does not here. Plaintiff does not claim
that his obesity “substantially limits one or more
.
.
.
major life activities.”
29 C.F.R.
§
1630.2(g)(1)(i). Plaintiffs factual circumstances are therefore similar to those of the corrections
officer in Lescoe, who experienced pain after standing as a result of his weight, but whom the
Third Circuit found not to be a qualified individual under the ADA. Here, Plaintiff observed a
weight lifting restriction on orders from his cardiologist, but he does not dispute that his weight
does not make it more difficult for him to stand, walk, bend, or complete other movements
necessary for him to work. (Defs. 56.1
¶J 9, 28).
Based on the record before this Court, Plaintiff has not demonstrated by a preponderance
of the evidence that he meets the standard for an individual with a disability under the ADA.
Therefore, this Court finds that Plaintiff has not demonstrated he is a “disabled person” within the
meaning of the ADA, and, as a result, the Court need not consider whether Plaintiff satisfies the
remaining requirements of a prima ficie case for actual disability discrimination. Defendants are
therefore entitled to summary judgment on Plaintiffs actual disability discrimination claim under
the ADA.
B.
ADA: Perceived disability
Alternatively, Plaintiff alleges that Defendants regarded him as being impaired by a
11
disability and discriminated against him on that basis.
(Compi.
¶J
90—91).
Under the 200$
Americans with Disabilities Act Amendments Act (“ADAAA”). a plaintiff asserting a regarded-as
disability claim need not demonstrate that the disability he or she is regarded as having is one that
substantially limits a major life activity. Rather, “an individual is ‘regarded as’ disabled when ‘the
individual establishes that he or she has been subjected to an action prohibited under [the ADA]
because of an actual or perceived physical or mental impairment whether or not the impairment
limits or is perceived to limit a major life activity.” Lackey v. Heart ofLancaster Reg ‘1 Med. Ctr.,
704 F. App’x 41, 48 (3d Cir. 2017) (quoting 42 U.S.C.
§
12102(3)(A)).
The Third Circuit “has not yet recognized a cause of action against an employer who
discriminates against an employee because it perceives the employee as disabled by obesity.”
Lescoe, 464 F. App’x at 53. In Lescoe. which post-dates the ADAAA, the Third Circuit rejected
the plaintiffs regarded-as disability claim where there was no evidence that the plaintiffs
employer perceived his weight to be an impairment. The Third Circuit reasoned that the plaintiff
“fail[ed] to highlight any evidence supporting [his employer’s] alleged belief that [the plaintiffi
was somehow disabled because of his weight.” M at 54. Other Circuits to consider such claims
under the ADAAA have likewise determined that a plaintiff proceeding on a regarded-as theory
for obesity is “required to show that his obesity was an actual or perceived physical impairment.”
Morriss v. BNSf Ry. Co., 817 F.3d 1104, 1108 (8th Cir. 2016). For example, in Morriss, the
Eighth Circuit considered whether Congress intended the broadened regarded-as liability under
the ADAAA to encompass discrimination on the basis of obesity, considering the stated goal of
the Amendments as well as guidance from the EEOC. The Eighth Circuit reasoned that, with the
ADAAA, Congress intended to abrogate and broaden the Supreme Court’s former interpretation
of “substantially limits a major life activity,” but that Congress left the language “physical
12
impairment” unchanged. Id. at 1111. The Court reasoned that the ADAAA creates liability where
an individual who is “regarded as having [a physical]
.
.
.
impairment” is discriminated against on
that basis, and that therefore the statute “prohibits actions based on
the perception of an existing
...
impairment.” Id. at 1113. Because the Court determined that the plaintiff “did not produce
evidence that [his employer] perceived his obesity to be an existing physical impairment,” the
court affirmed summary judgment in favor of the employer. Id.6
Here, Plaintiff argues that he satisfies his burden of establishing that he was regarded as
disabled by Defendants because “Mulvihill, Polchinski, and Younes.. were aware of [Plaintiff s]
.
heart and weight problems.” (P1.
Opp. Br. at 11).
Defendants do not dispute that at least Polchinski
was aware of Plaintiffs heart condition and medical obesity, having received the note from
¶ 9).
Plaintiffs cardiologist regarding Plaintiffs lifi restriction. (Defs. 56.1
Even so, Defendants
did not need formal documentation of Plaintiffs medical diagnosis or BMI in order to perceive
that he was obese. Plaintiff testified that Mulvihill regularly commented on Plaintiffs obesity,
and that Pulchinski was aware of this behavior. (See generally P1. Dep. Tr. at 44:13-51:15). There
is no question, therefore, that Defendants “regarded” Plaintiff as obese.
However, that is not what Plaintiff must prove. Instead, Plaintiff must demonstrate that
Defendants perceived him as having some sort of limiting “physical.
.
.
impairment.” Lackey, 704
Fed. App’x at 4$. Plaintiff does not argue that his weight limited his ability to stand, walk, bend,
or complete other movements necessary for him to work. (Defs. 56.1
¶J 9, 2$).
Plaintiff regularly
participated in sports and other physical activities during his time at Mountain Creek. (Defs. 56. 1
¶ 28). Neither Plaintiff nor Defendants claim
that Defendants perceived Plaintiffs weight as
physically interfering with his ability to do his job. To the extent Plaintiff argues that Defendants’
The Supreme Court has since denied certiorari of Morriss, 137 S. Ct. 256.
13
knowledge of the lift restriction imposed by his cardiologist constitutes a perception that Plaintiff
suffered from a physical impairment, the Court disagrees, as Plaintiff does not claim that
Defendants discriminated against him because of his heart condition. Plaintiff likewise has not
demonstrated that Defendants’ remarks concerning his weight evince a perception that his weight
was a physically limiting impairment rather than an aesthetic one. See Lescoe, 464 F. App’x at
52, 54 (concluding that the defendant’s “actions [did]
not
indicate that it perceived [the plaintiffj
to be disabled,” despite evidence that plaintiff “was the subject of jokes and comments about his
weight, the size of his belly, and not being able to see his groin area”).
In other words, Plaintiff has failed to point to any evidence demonstrating that Defendants
regarded him as “somehow disabled because of his weight.” Lescoe, 464 F. App’x at 54. See a/so
Mctrsh v. Sunoco, No. 06-2856, 2006 WL 3589053, at *4 (E.D. Pa. Dec. 6, 2006) (dismissing
regarded-as disability discrimination claim based on plaintiffs weight, noting that “[i]t repeatedly
has been held that excess weight or obesity, except in special circumstances where they relate to a
physiological disorder, are not ‘physical impainnents’ within the meaning of the statutes.”); cf.
Anderson v. Mac’’s, Inc., 943 F. Supp. 2d 531, 544—45 (W.D. Pa. 2013) (declining to
“definitionally exclude obesity when caused by an underlying physiological condition as a
disability under the ADA,” but noting that the court was “unaware of any district court in our
Circuit that has decided whether obesity may be considered a disability under the ADA as amended
by the ADAAA”). As a result, Plaintiff has failed to meet his burden of showing that Defendants
regarded him as having a disability within the meaning of the ADA. The Court therefore concludes
that Defendants are entitled to summary judgment on this claim.
C.
State Law Claims
Because the Court grants Defendants’ Motion for Summary Judgment on Plaintiffs ADA
14
claims, the Court no longer has original scibject matter jurisdiction over this case pursuant to 28
U.S.C.
if.
.
.
§ 1331. A district court “may decline to exercise supplemental jurisdiction over a claim
the district court has dismissed all claims for which it has original jurisdiction.” 2$ U.S.C.
§ 1367 (c)(3). The Third Circuit has held that. “where the claim over which the district court has
original jurisdiction is dismissed before trial, the district court must decline to decide the pendent
state claims unless considerations of judicial economy, convenience, and fairness to the parties
provide an affirmative justification for doing so.” Trple TConstr. v. Tup. of W Milfàrd, No. 142522. 2017 WL 123434, at *3 (D.N.J. Jan. 12, 2017) (quoting Borottgh of W Mifflin v. Lancaster,
45 F.3d 780, 788 (3d Cir. 1995)). Furthermore, in this district, the “general approach is for a
district court to
.
.
.
hold that supplemental jurisdiction should not be exercised when there is no
longer any basis for original jurisdiction.” Scha/fer v. Twp. of Franklin, No. 09-347, 2010 WL
715349, at *1 (D.N.J. Mar. 1,2010) (quotingfdlin Ltd. v. Cit’ ofJersey City, No. 07-3431, 200$
WL 2185901, at *7 (D.N.J. May 23, 2008)).
The Court recognizes that it may, in its discretion, exercise supplemental jurisdiction over
state law claims where a case has reached a later stage of litigation, and that here, the parties have
proceeded through discovery and to summary judgment. However, the Court also notes that this
case remained inactive pending Mountain Creek’s bankruptcy proceedings, and that less than one
year has passed since it reopened. (See ECF No. 29). Furthermore, absent Plaintiffs federal ADA
claims, this is a dispute between a New Jersey resident and his New Jersey employer involving
matters of New Jersey law. See Ass ‘n o/7’/.J. Rifle and Pistol Clubs, Inc. v. Christie, $50 F. Supp.
2d 455, 462 (D.N.J. 2012) (declining to exercise supplemental jurisdiction over claims between
New Jersey parties concerning New Jersey law). Plaintiffs NJLAD claims concern issues of
interpretation of state statutory law that would be more appropriately heard in New Jersey state
15
court. See United Mine Workers ofAm. v. Gibbs, 383 U.s. 715, 726 (1966) (“Needless decisions
of state law should be avoided both as a matter of comity and to promote justice between the
parties.”); Geronimo v. Statteiy, No. 13-1542, 2014 WL 202126, at *4 (D.N.J. Jan. 16, 2014)
(declining to exercise pendant jurisdiction over remaining state law claims because “it would be
preferable for a New Jersey court to decide” them). The Court therefore, in its discretion, declines
to exercise supplemental jurisdiction over Plaintiffs remaining state law claims.
V.
CONCLUSION
for the aforementioned reasons, the Court grants Defendants’ Motion for Summary
Judgment on Plaintiffs ADA claims. Plaintiffs claims under NJLAD, as well as his claims for
defamation and infliction of emotional distress, are dismissed without prejudice and with leave to
reinstate those claims in state court. An appropriate Order accompanies this Opinion.
DATED: October /32018
United States District Court
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