Docket No. : MRS-L-2876-03
Dear Judge Wilson:

As the Court is aware we represent Defendant, the Borough of Mendham, in the above matter. We filed a Motion for Summary Judgment which was granted by your honor on July 23, 2004. The plaintiff was provided sixty (60) days in which to file for reconsideration, which was received by our office on September 9, 2004. Kindly accept this letter brief in opposition to plaintiffs Motion for Reconsideration and in further support of our initial Motion for Summary Judgment. LEGAL ARGUMENT Plaintiffs ADA Claim

Plaintiff now submits, along with his brief and rendition of how the summary judgment proceedings should have been conducted, documents indicating his eligibility to receive vocational rehabilitation services and disability benefits from the federal government. The plaintiff states:

In the case of my disability, the conveniently available evidence, is my testimony as to the fact I am receiving disability payments from Social Security, for a disability that is mine, and that the standards applied by the Social Security Administration parallel those of the legal definition, and include a requirement of permanent disability demonstrated by expert opinion. See Plaintiffs Brief p.4.

We submit that proof of a disability in the eyes of the Social Security Administration is not alone sufficient to prove the existence of a disability under the ADA.

An individual is disabled under the Americans with Disabilities Act (ADA) if he or she can prove s/he suffers from:

(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) being regarded as having such an impairment.

42 U.S.C.A. §12102(2). An individual only needs to satisfy one of these elements. Merely having an impairment does not make one disabled for purposes of the ADA, rather he also needs to demonstrate that the impairment limits a major life activity. Toyota Motor Mfg. Kentucky Inc., v. Williams. 534 U.S. 184, 195 (2002).

"Major life activities" as described by the Supreme Court refer to those activities that are of central importance to daily life, and such impairment must be permanent or long-term. Id. at 185. These include

functions such as "caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." See Dicino v. Aetna U.S. Healthcare. 2003 WL 21501818 (D.N.J.).

In contrast, to prove a disability under the Social Security Act one must demonstrate only a 'medically determinable basis for an impairment' that prevents [him] from engaging in 'substantial gainful activity'." Knox v. Barnhart, Fed.Appx.374, 376 (3rd Cir. 2003); citing Stunkard v. Sec, of Health and Human Sen's.. 841 F.2d 57, 59 (3rd Cir. 1988); See also 20 C.F.R. §404.1505a) (providing basic definition of disability under SSA). "Substantial gainful activity" is defined as work activity that is both "substantial" and "gainful". 20 C.F.R. §404.1572. "Substantial work activity is work activity that involves doing significant physical or mental activities. Your work may be substantial even if it is done on a part-time basis or if you do less, get paid less, or have less responsibility than when you worked before." Marizo v. Sullivan, 784 F.Supp. 1152, 1155(D.N.J. 1991).

"Gainful work activity is work activity that you do for pay or profit. Work activity is gainful if it is the kind of work usually done for pay or profit, whether or not a profit is realized." Id. An individual shall not be considered to be under disability unless he furnishes such medical and other evidence as required by the Secretary. Id. 42 U.S.C. §423(d)(5)(A).

"Substantial gainful activity," we submit, is not the same as "a major life activity."

Plaintiff submits documentation that during the time in question he was receiving benefits from the Social Security Administration; however, such record fails to indicate why he was disabled. See Plaintiffs Exhibit GM-4. This information is important because it is necessary to prove whether such disability limits a major life activity. Plaintiff also includes an assessment by Dr. Muir from 1984 indicating that he suffers from "mixed severe personality disorder with marked paranoid and phobic features." See Plaintiffs Exhibit GM-5. Nowhere does the record indicate that this diagnosis is permanent or long-term, requirements under the ADA.

Plaintiff also submits a document from a licensed clinical social worker indicating the plaintiff is a "house-bound agoraphobic." See Plaintiffs Exhibit GM-7. While this is expert testimony as to plaintiffs condition, such documentation refers to a time period before that at issue. It is also not clear how this relates to the social security determination that he is disabled. Accordingly, while plaintiff may be suffering from an impairment, there is no proof that such impairment limits a "major life activity."

In addition, plaintiffs submission is incomplete. He presents portions of documents he deems relevant but fails to include them intheir entirety. For example, plaintiffs Exhibit GM-5 indicates it is page four of a series, however, the first three pages are missing. Plaintiff also states his disability prevents him from "perusing" the extensive social security file for pertinent evidence. See Plaintiffs Brief p.5.

During oral argument on summary judgment plaintiff stated he would provide complete access to his social security file. What plaintiff fails to recognize is that an ADA plaintiff bears the burden of proving that he or she is a "qualified individual with a disability." Cleveland v. Policy Management Systems Corp., 526 U.S. 795,806 (1999). It is not the Court's duty or the defendant's obligation to "peruse" files, which we were never provided, to determine whether the plaintiff meets this burden. Accordingly, we submit plaintiff has not proved he is disabled under the ADA.

Plaintiffs LAD Claim

Courts have ruled that the LAD has no such "major life activities" handicap requirement as does the ADA. Olson v. General Electric Astrospace. 966 F. Supp. 312, 314 (D.N.J. 1997). The LAD defines "handicapped" individuals as one suffering from a "physical disability, infirmity ... which is caused by ... illness, or from any mental, psychological, or developmental disability... which prevents the normal exercise of any bodily or mental functions or is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques." Tynan v. Vicinage 13 of Superior Court, 351 N.J. Super. 385, 398 (App. Div. 2002); N.J.S.A. 10:5-5(q).

As indicated in our summary judgment motion, agoraphobia is a mental disability as classified under the non-physical standard set forth in N.J.S.A. 10:5-5(q). See Borough of Mendham's Motion for Summary Judgment, p. 20. Plaintiff submits proof in the form of a document from 1984 which indicates he suffers from "mixed severe personality disorder with marked paranoid and phobic features." See Plaintiffs Exhibit GM-5. He also submits a document from a license clinical social worker indicating he was agoraphobic in 1980 and 1998. See Plaintiffs Exhibit GM-7. Neither document indicates plaintiff was agoraphobic, as he claims, during the time period at issue.

Moreover, plaintiff fails to prove his free services were no longer sought because he was disabled, nor has he demonstrated the Borough failed to provide him with any desired public records because he was disabled. Also addressed in plaintiffs Complaint and his motion for reconsideration are his claims of conversion and violations of the Open Public Records Act (OPRA). He claims these are not dependent on a finding of a disability.

However, as a volunteer his services could not have been "taken." He admits to volunteering to perform these services and admits he considered himself "on the public dole." Therefore, plaintiff meets the definition outlined by the Department of Labor which states a volunteer is: "[a]n individuals 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...." 29 C.F.R. §553.101(a); Todaro v. Tp. of Union. 40 F.Supp.2d 226 (D.N.J. 1999). Thus as a volunteer freely offering his services, he cannot maintain a claim that his services were nevertheless "taken."

Additionally, plaintiffs claim is time barred. N.J.S.A. 2A:14-2 provides: "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." Plaintiff alleges the search for the new webmaster occurred in February of 2001, at which time plaintiff continued to perform the services at issue for a period of four months. Yet plaintiff did not file suit until October 31, 2003, more than two years after his alleged injury.

OPRA's purpose is 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). Defendants complied with OPRA in facilitating access to documents to the plaintiff. As explained in Point IV of our motion for summary judgment, the plaintiff ultimately received all materials which could be provided in response to his OPRA requests.

For instance, the plaintiff requested tape recordings of Borough meetings. As the Borough did not own tape-duplicating machinery, the tape could not be furnished to the plaintiff immediately. This was explained to the plaintiff, so he requested the tapes in their original accelerated speed. These tapes were provided to him.

Furthermore, by asserting an OPRA action one seeks access to public records. The plaintiff has already been provided those records sought, and is instead seeking monetary damages for a violation of his civil rights. Such relief is not contemplated under OPRA.

Once again, plaintiff articulates a violation of his section 1983 rights. As stated in our reply brief to plaintiffs opposition to our motion for summary judgment, his initial Complaint was never properly amended to include a cause of action under 42 U.S.C.A. §1983. As argued in our reply brief, even if the plaintiff had properly amended his complaint, he fails as a matter of law to establish a deprivation of any rights, privileges or immunities secured to him through the Constitution or Laws of the United States.

Section 1983 creates a cause of action against "[e]very person who, under color of any [state law] ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or imrrmnities secured by the Constitution." 42 U.S.C. §1983. The Supreme Court in Monell v. Department of Social Services of City of New York. 436 U.S. 658 (1978), held that a municipality can be held liable as a person under §1983 when it unconstitutionally implements or enforces "a policy statement, ordinance, regulation, or decision officially adopted and promulgated by" the officers of that municipality. Id. at 690. The plaintiff has presented noproof the Borough implemented or enforced a policy that created intended to deprive him of his rights.