                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-5-1996

Olson v. Gen Elec Astrospace
Precedential or Non-Precedential:

Docket 95-5480




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                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT



                           No. 95-5480



                           JOHN OLSON,

                                    Appellant
                               v.

                GENERAL ELECTRIC ASTROSPACE aka
                  MARTIN-MARRIETTA ASTROSPACE



         ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF NEW JERSEY



                       (Civil No. 94-1190)


                      Argued: March 22, 1996

            Before: BECKER and McKEE, Circuit Judges,
and POLLAK, District Judge

                (Opinion filed: December 5, 1996)



                       STEPHEN E. KLAUSNER, ESQ. (Argued)
                       JAMES P. MADDEN, ESQ.
                       Klausner & Hunter
                       P.O. Box 1012
                       63 E. High Street
                       Somerville, NJ 08876

                       Attorneys for Appellant


                       ROBERT H. BERNSTEIN, ESQ. (Argued)
                       Epstein, Becker & Green
                       The Legal Center
                       One Riverfront Plaza
                       Newark, NJ 07102

                       Attorneys for Appellee
                       OPINION OF THE COURT




McKEE, Circuit Judge:
     John Olson, a former employee of General Electric Astrospace
("GE"), appeals the district court's grant of summary judgment
in favor of GE on claims Olson filed under the Americans With
Disabilities Act, 42 U.S.C. § 1210 et seq., ("ADA"), and the New
Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 et
seq. The district court ruled that Olson failed to establish a
prima facie case of discrimination under either the ADA or the
LAD. We agree that Olson did not demonstrate that he was
disabled or had a record of impairment under the ADA. However,
we disagree that Olson did not demonstrate the existence of a
material fact as to a perception of an impairment. Accordingly,
we will affirm in part and reverse in part, and remand for
further proceedings consistent with this opinion.

                                I.
      John Olson began his employment with GE as a Senior Member,
Technical Staff, in the Parts Engineering Department, on April 3,
1988. His job responsibilities generally included evaluating
Non-Standard Part Approval Requests ("NSPARS") and writing Source
Control Drawings ("SCDS") for microcircuits. Throughout most of
this period, Olson reported to Dale Sansoni, Manager of Parts
Engineering. Olson liked Sansoni and considered him a good
supervisor.
     On August 23, 1991, Sansoni prepared the only written
performance appraisal of Olson's job performance at GE. It
covered the period from December 1988 to August 1991. Sansoni
gave Olson a rating of "2" on a scale of "1" to "5", with "5"
being the highest score. Sansoni's appraisal noted that Olson
"needed improvement." Olson apparently agreed with Sansoni's
assessment.
     In February of 1991, Olson was hospitalized for four months
for depression. He returned to work in late May or early June of
1991 although Sansoni gave Olson as much time off from work as he
needed.
     On September 11, 1991, GE told Olson that he was being laid-
off along with hundreds of others as part of a general reduction
in force necessitated by adverse business conditions. A month
later, on October 11, 1991, Olson was formally laid-off.
     In August of 1992, a former co-worker told Olson that the
position of Quality Assurance Specialist was opening at GE's East
Windsor, New Jersey facility. The person hired as QA Specialist
would report to Sansoni who was still the Manager of Parts
Engineering. Olson was interested and telephoned Sansoni, who
encouraged Olson to apply. On September 9, 1992, Olson submitted
his application to the GE Transition Center in Princeton, New
Jersey. The application was forwarded to Amy Levinson-Close,
Human Relations Manager.
     Initially, Olson was one of four applicants. Sansoni
interviewed Olson for the position on September 21, 1992. GE
contends that because Sansoni already knew Olson and was familiar
with his work, the interview focused on Olson's experiences since
being laid-off. Olson contends that during that interview,
Sansoni asked him if he had any further medical developments, and
that Sansoni was referring to Olson's 1991 hospitalization for
depression. Olson alleges that approximately one-third of the
interview concerned Olson's health and marital status.
     According to Olson, Sansoni discussed the medication Olson
was taking, and a one month hospitalization that Olson had
admitted himself to for testing. Olson did not, however, tell
Sansoni that he had also been tested for Multiple Personality
Disorder. Olson contends that he and Sansoni also discussed an
overnight hospitalization that Olson had undergone in order to
diagnose a possible sleep disorder. Olson maintains that he told
Sansoni that all of the tests had been negative, and that the
doctors had informed him that the most likely diagnosis was
simply a sleep disorder. According to Olson, Sansoni told him
that he would recommend that Olson be hired for the position and
that he would not be interviewing the other applicants.
     A few days after Sansoni interviewed Olson, a co-worker gave
Sansoni the resume of Jeffrey Venditte. Venditte and the co-
worker who gave Sansoni the resume had previously worked together
at Hughes Aircraft Company and the co-worker highly recommended
Venditte to Sansoni. About one week after Sansoni interviewed
Olson, Sansoni interviewed Venditte. Sansoni considered both
Olson and Venditte qualified for the job, but recommended
Venditte to Christina Eggert who was Sansoni's superior. GE
maintains that Sansoni believed that Venditte had better
experience than Olson with respect to parts overstressing and
failure analysis which were two principal job requirements.
Sansoni also believed that Venditte's work at Hughes and ITT
would be valuable to GE. At ITT, Venditte had been on a team
that was responsible for a database management system used by
four major subcontractors of GE. At Hughes, Venditte had been
involved in resolving spacecraft part failures, and that
experience was related to the job he would perform at GE.
     Sansoni and Eggert discussed Olson's and Venditte's
qualifications, but Ms. Eggert made the final decision. Eggert
agreed with Sansoni's recommendation and hired Venditte. GE
claims that Eggert and Sansoni discussed neither Olson's previous
hospitalization nor his health in arriving at a decision to hire
Venditte. On October 21, 1992, Sansoni telephoned Olson and told
him that another candidate had been hired.
     On November 4, 1992, Olson filed a complaint with the EEOC,
alleging that he was not hired because of his "disability" in
violation of the ADA.   The EEOC conducted an investigation and
on December 13, 1993, issued a no-cause determination.
     On March 11, 1994, Olson filed a complaint against GE
alleging that GE did not hire him because of his disability or
perceived disability in violation of the ADA and the LAD. Olson
alleges that his disability is "depression, sleep disorder and
multiple personality disorder." Complaint ¶ 16.
     After the pleadings were closed, GE filed a motion for
summary judgment. The district court entered an Order granting
summary judgment to GE and dismissing Olson's complaint with
prejudice. In a Memorandum Opinion accompanying the Order, the
district court held that Olson had not established a prima faciecase under
the ADA or the LAD because he failed to establish that
he is disabled, that he has a history of impairment or that GE
perceives him to be disabled.
     This appeal followed.

                               II.
          Summary judgment is proper only where there is no
genuine issue of material fact for the factfinder to decide.
Fed.R.Civ.P. 56(c). In order to demonstrate the existence of a
genuine issue of material fact, the nonmovant must supply
sufficient evidence (not mere allegations) for a reasonable jury
to find for the nonmovant. Coolspring Stone Supply, Inc. v.
American States Life Ins. Co., 10 F.3d 144, 148 (3d Cir. 1993).
Our standard of review on an appeal from a grant of summary
judgment is plenary. Id. at 146.   We apply the same test the
district court should have used initially, Public Interest
Research Group of New Jersey v. Powell Duffryn Terminals, Inc.,
913 F.2d 64, 76 (3d Cir. 1990), cert. denied, 498 U.S. 1109
(1991), and review the facts in the light most favorable to the
party against whom summary judgment was entered. Coolspring
Stone Supply, Inc. v. American States Life Ins. Co., 10 F.3d at
146.

                               III.
A.  The ADA Claim.
     The section of the ADA under which Olson brought his claim
provides, in relevant part, as follows:
          No covered entity shall discriminate against
          a qualified individual with a disability
          because of the disability of such individual
          in regard to job application procedures, the
          hiring, advancement, or discharge of
          employees, employee compensation, job
          training, and other terms, conditions, and
          privileges of employment.

42 U.S.C. § 12112.
     It is now axiomatic that the familiar analytical framework
first pronounced in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973), for resolution of suits brought under Title VII, also
guides an analysis of claims brought under the ADA. Newman v. GHS
Osteopathic, Inc., 60 F.3d 153, 157 (3d Cir. 1995). Accordingly,
Olson had the initial burden of establishing a prima facie case
of unlawful discrimination. To do so he had to establish that
(1) he belongs to a protected category; (2) he applied for and
was qualified for a job for which the employer was seeking
applicants; (3) despite his qualifications, he was rejected; and
(4) after his rejection, the position remained open and the
employer continued to seek applicants. Sheridan v. DuPont, ___
F.3d ___, No. 94-7509 (3d Cir. Nov. 14, 1996) (en banc), Fuentes
v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994) (discussing elements
in a case of failure to hire or promote under Title VII). In
McDonnell Douglas, the court noted that "the facts necessarily
will vary in Title VII cases, and the specification . . . of the
prima facie proof required . . . is not necessarily applicable in
every respect to different factual situations." 411 U.S. at 802
n.13. Olson's allegations reflect an alternative to the fourth
element of the McDonnell Douglas scenario: namely, a rejection
of plaintiff accompanied, or followed by, a filling of the job
with a person not belonging to the protected category. If the
plaintiff succeeds in establishing a prima facie case, the burden
of production then shifts to the employer to articulate some
legitimate, nondiscriminatory reason for the plaintiff's
rejection. Id. Once the employer articulates a legitimate
reason for the unfavorable employment decision, the plaintiff
must show by a preponderance of the evidence that the employer's
proffered explanation was pretextual. Id.
     In order to defeat a summary judgment motion after the
defendant answers plaintiff's prima facie case with legitimate,
nondiscriminatory reasons for its action, the plaintiff must
          point to some evidence, direct or
          circumstantial, from which a factfinder could
          reasonably either (1) disbelieve the
          employer's articulated legitimate reasons; or
          (2) believe that an invidious discriminatory
          reason was more likely than not a motivating
          or determinative cause of the employer's
          action.

Id. at 764. The plaintiff "must demonstrate such weaknesses,
implausibilities, inconsistencies, incoherencies, or
contradictions in the employer's proffered legitimate reasons for
its action that a reasonable factfinder could rationally find
them unworthy of credence and hence infer that the employer did
not act for the asserted non-discriminatory reasons." Id. at 765
(internal citations, quotations and brackets omitted). Once the
plaintiff has pointed to some evidence which sufficiently
discredits the employer's proffered reasons, plaintiff need not
"also come forward with additional evidence of discrimination
beyond his or her prima facie case." Id. at 764. Rather, the
factfinder may consider the elements of plaintiff's prima facie
case along with the rejection of the employer's explanation and
conclude that illegal discrimination is more likely than not the
true reason for the challenged employment action. "It is the
jury's determination that the reason given was pretextual
together with the evidence that supported the prima facie case
that will sustain a finding of intentional discrimination . . ."
Sheridan, slip. op. at 20. The factfinder is not, however,
compelled to so find, as the plaintiff always has the burden of
proof. Id. at 763.
     However, before the burden-shifting can even begin, Olson
must show that he is a member of a protected class. Olson argues
that he is a member of the protected class because he meets each
of the three categories of protection under the ADA. He argues
he: (1) is disabled because he was hospitalized for depression
for four months; (2) has a record of impairment because of his
hospitalization and because of his diagnoses of Multiple
Personality Disorder and a sleep disorder; and (3) is regarded as
disabled by GE.
     The ADA defines the term "disability" as:

          (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. § 12102(2). "Major Life Activities" include "functions
such as caring for oneself, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, and working." 29
C.F.R. § 1630.2(i). These activities are "substantially
limit[ed]" when one is
          (i) Unable to perform a major life activity
          that the average person in the general
          population can perform; or
          (ii) Significantly restricted as to the
          condition, manner or duration under which an
          individual can perform a particular major
          life activity as compared to the condition,
          manner, or duration under which the average
          person in the general population can perform
          that same major life activity.

29 C.F.R. § 1630.2(j)(1). In determining if a person is affected
by a disability that "substantially limits" a "major life
activity" we must consider several factors including:
          (i) The nature and severity of the
          impairment;
          (ii) The duration or expected duration of the
          impairment; and
          (iii) The permanent or long term impact, or
          the expected permanent or long term impact of
          or resulting from the impairment.

29 C.F.R. § 1630.2(j)(2). Our task is to determine if a person
who claims a disability under the ADA is "significantly
restricted in the ability to perform either a class of jobs or a
broad range of jobs in various classes as compared to the average
person having comparable training, skills and abilities." 29
C.F.R. § 1630.2(j)(3)(i). An "inability to perform a single,
particular job does not constitute a substantial limitation in
the major life activity of working." Id.
     In granting summary judgment for GE and against Olson, the
district court held that Olson had failed to establish a prima
facie case that he was disabled. The court stated:
                    [c]onsidered separately or together, neither
                    plaintiff's hospitalization nor his alleged
                    emotional condition are enough to classify
                    him as disabled for purposes of establishing
                    a prima facie case under the ADA. Plaintiff
                    has not demonstrated how, if at all, his
                    alleged condition has impacted his life. On
                    the contrary, plaintiff has indicated that he
                    works, goes to school full time and regularly
                    engages in recreational activities. The court
                    therefore concludes that plaintiff has not
                    made a prima facie showing that he is
                    disabled.

Dist. Ct. Op. at 7.

     Similarly the court denied Olson's claim that he had a
record of impairment. In doing so, the court minimized the
serious nature of Olson's depression and personality order. The
court stated:
                    Plaintiff has apparently misunderstood what
                    is meant by 'a record of such impairment.'
                    That subsection . . . is intended to ensure
                    that people are not discriminated against
                    because of a history of disability. This . .
                    . is satisfied if a record relied on by an
                    employer indicates that the individual has .
                    . . had a substantially limiting impairment.
                    . . . It is absolutely necessary for the
                    plaintiff to show that the impairment . . .
                    substantially limits one or more of the
                    individual's major life activities. . . .
                    [N]either a diagnosis of multiple personality
                    disorder nor a history of testing for sleep
                    disorders will satisfy that burden. Plaintiff
                    would have to show that, while those
                    disorders were active, they substantially
                    limited one of life's major activities. He
                    has not done so.

Dist. Ct. Op. at 7-8 (citations omitted).

     Finally, the district court also concluded that Olson had
not demonstrated that he was regarded or perceived as being
disabled. It did so because Eggert, not Sansoni was responsible
for not hiring Olson, and Olson could not demonstrate that Eggert
knew of Olson's health problems. The court noted:
                    Indeed, it is unlawful for an employer to
                    base an employment decision on the belief
                    that the employee is disabled. However,
                    Christina Eggert, the individual who had the
                    ultimate authority to make the hiring
                    decision in question here, has certified that
                    she did not discuss plaintiff's health with
                    the interviewer and she was not aware that
                    plaintiff suffered from depression, multiple
                    personality disorder or any other type of
                    mental illness. An employer cannot be said to
                    have regarded an individual as disabled when
                    the person charged with making the adverse
                    employment decision lacked knowledge of the
                    employee's condition.
          Dist. Ct. Op. at 8 (citations omitted). The court therefore
concluded that Olson "failed to show that he belongs to a
protected class, a threshold requirement of the ADA." Dist. Ct.
Op. at 9.
     As noted earlier, we agree with the district court's
conclusion that Olson did not show that he was either disabled or
had a record of impairment within the meaning of the ADA. The
evidence recited by the district court that reflects Olson's
ability to function normally despite what appear to be serious
psychological and emotional problems defeats that part of Olson's
ADA claim. Accordingly, the evidence that was apparently offered
to demonstrate Olson's fitness as an employee ironically
establishes that he was not substantially limited in a major life
activity. Therefore he can not establish that he is disabled, or
that he has a history of being disabled. However, we believe
that Olson clearly demonstrated a genuine issue of material fact
as to the third basis of his ADA claim. A reasonable factfinder
could conclude that he did not get the job because GE regardedhim as
disabled.
     The regulations provide that being "regarded as having such
an impairment" means:
          (1) Has a physical or mental impairment that
          does not substantially limit major life
          activities but is treated by a covered entity
          as constituting such limitation;

         (2) Has a physical or mental impairment that
         substantially limits major life activities
         only as a result of the attitudes of others
         toward such impairment; or

         (3) Has none of the impairments defined in
         paragraphs (h)(1) or (2) of this section but
         is treated by a covered entity as having a
         substantially limiting impairment.

29 C.F.R. § 1630.2(l)(1)-(3).   Thus, Olson would be disabled
within the meaning of the ADA if GE regarded Olson as having a
disabling impairment. See Holihan v. Lucky Stores, Inc., 87 F.3d
362, 366 (9th Cir. 1996).
     Olson argues that it is reasonable to infer that GE
perceived him to be disabled because at least one-third of his
interview with Sansoni was spent discussing Olson's health, and
because Sansoni's performance evaluation of Olson during Olson's
prior employment with GE contains the following references to
Olson's health:
          John's time card charges are not always
          entered on a daily basis. On a number of
          occasions I have not signed his time card
          because he was out on personal illness. . . .
          His work habits are questionable because he
          has taken an unusual amount of time off for
          personal illness reasons.

          I have spoke (sic) to John on several
          occasions regarding his personal illness. I
          depend on John to perform as a senior member
          of my Technical Staff and I have questioned
          his commitment to Parts Engineering.

          A majority of John's appraisal was prepared
          back in March of this year (when it was
          originally due), however John went on
          extended illness from March, 1990 to June
          1990 which caused this performance discussion
          to be delayed until now.

Appellant's App at 35, 36.   Olson then appears to argue that
because Sansoni reported to Eggert, a reasonable factfinder could
conclude that Eggert was aware of Olson's health problems because
of discussions she would most certainly have had with Sansoni.
     In response GE points out that Eggert made the hiring
decision, and she had no knowledge of Olson's health problems or
history of hospitalizations. GE reminds us that Eggert's
certification establishes that she never discussed Olson's health
with Sansoni, and that Olson's own statements establish that GE
was unaware of Olson's condition at the time Venditte was hired.
Olson's affidavit to the EEOC is part of the record in the
district Court. In that affidavit Olson swore:
          I wish to state for the record that I believe
          Mr. Sansoni's questions about my health and
          current marital status arose out of a sincere
          desire to re-establish a friendly
          relationship which we enjoyed prior to and
          following my layoff from GE.

Appellee's App. at 68.   Similarly, Olson testified in his
deposition that "I don't believe that [Sansoni], in fact,
discriminated against me on the basis of my health during the
interview in 1992." Appellee's App. at 38.
     We agree that knowledge of Olson's hospitalization and
illnesses cannot be imputed to Eggert. She filed a Certification
disclaiming any such knowledge, and Olson presented no evidence
to the contrary. Thus, the district court correctly concluded
that Olson's theory of imputed knowledge was based upon sheer
speculation, and was therefore insufficient to raise a genuine
issue of material fact. However, we need not impute Sansoni's
knowledge of Olson's hospitalization and illnesses to Eggert to
find that Olson was perceived as disabled by GE. The error here
occurred precisely because the district court limited its inquiry
to Eggert's knowledge of Olson's disability rather than
considering Sansoni's perception. Sansoni was directly involved
in the hiring process, and it is uncontroverted that he knew of
Olson's health problems. It is also uncontroverted that he
recommended Venditte, not Olson, to Eggert who then offered the
position to Venditte. Sansoni had been Olson's supervisor, and
was aware of Olson's hospitalization and illnesses. He prepared
the only written evaluation of Olson's performance at GE, and in
it Sansoni made multiple references to the fact that Olson had
missed a significant amount of work because of illness. He
specifically stated that Olson had been hospitalized for four
months, and he noted that he had discussed illness-related
absences with Olson on several occasions. Moreover, these
absences caused Sansoni to question Olson's commitment to his
job. Finally, it is undisputed that Sansoni spent a significant
amount of time during Olson's interview discussing Olson's health
problems.
     Viewing these facts in the light most favorable to Olson as
the nonmovant (as we must), it is clear that a reasonable fact-
finder could infer that Sansoni perceived Olson to be disabled.
One could reasonably conclude that this affected the
recommendation Sansoni made to Eggert, and that that caused GE to
hire Venditte.
     Where a hiring decision is based largely or entirely on a
recommendation or evaluation made by an employee who perceived
the applicant as disabled, the employer can be held liable in a
perception case. Thus, at least for summary judgment purposes, it
is irrelevant whether Eggert knew of Olson's health problems or
not. So long as Sansoni knew, and he clearly did, and so long as
Eggert made her hiring decision based upon Sansoni's
recommendation, there is a genuine issue of material fact as to
whether GE perceived Olson as disabled.
     Moreover, the cases that have found for the employer because
the employer did not know of an employee's illness or condition
are not to the contrary. In Geraci v. Moody-Tottrup,
International, Inc., 82 F.3d 578 (3d Cir. 1996), a pregnancy
discrimination suit under Title VII, the plaintiff offered no
evidence that any of her managers knew she was pregnant.
Therefore, even though she told some of her co-workers, absent
evidence that someone in position of authority knew of her
condition, she could not prevail against her employer. Similarly,
in Hedberg v. Indiana Bell Telephone Co. Inc, 47 F.3d 928 (7th
Cir. 1995), management relied upon a recommendation made by the
plaintiff's supervisor in making the decision to fire the
plaintiff. However, the supervisor's evaluation of the plaintiff
was made before the supervisor knew of plaintiff's illness, and
the plaintiff offered no evidence that any of the decisionmakers
knew of his illness when they fired him. In neither of these
cases was the decision to discharge the plaintiff based largely
or entirely upon a recommendation of a supervisor who knew of
plaintiff's condition.
     Similarly, in determining whether Olson is a member of a
protected class, it is irrelevant whether Olson believed that
Sansoni did not discriminate against him during the interview.
Olson's belief in Sansoni's sincerity does not establish that
Sansoni's recommendation was not, in fact, altered by his view of
Olson's health. Were summary judgment to be allowed on Olson's
perception claim under such circumstances the already difficult
task of proving discriminatory motive would be made significantly
more difficult.
                    The McDonnell Douglas-Burdine burden-shifting
                    framework was created because only rarely
                    will a plaintiff have direct evidence of
                    discrimination. Gone are the days (if,
                    indeed, they ever existed) when an employer
                    would admit to firing an employee because she
                    is a woman, over forty years of age, disabled
                    or a member of a certain race or religion. .
                    . . The elements of that prima facie case,
                    however, must not be applied woodenly, but
                    must rather be tailored flexibly to fit the
                    circumstances of each type of illegal
                    discrimination.

Geraci, 82 F.3d at 581.

     Viewing this record in the light most favorable to Olson,
the nonmovant in summary judgment, it is clear that a genuine
issue of material fact exists as to whether the recommendation
that Sansoni made caused Venditte to be hired over Olson, and if
so, whether that recommendation was affected by a perception that
Olson was disabled within the meaning of § 12102(2)(C) of the
ADA. Because the district court incorrectly ruled that Olson did
not establish that there was a question of material fact as to
whether he was regarded as disabled by GE, and thus a member of a
protected class, we will reverse the district court's grant of
summary judgment as to the issue of GE's perception of
disability.

B.  The LAD claim.
     The section of New Jersey's Law Against Discrimination
("LAD") under which Olson brought his claim provides, in relevant
part:
          the provisions of this act. . . prohibit any
          unlawful discrimination against any person
          because such person is or has been at any
          time handicapped or any unlawful employment
          practice against such person, unless the
          nature and extent of the handicap reasonably
          precludes the performance of the particular
          employment.

N.J.S.A. 10:5-4.1. The LAD thus uses the term "handicap" as
opposed to "disability". The district court did not discuss
Olson's LAD claim because it ruled that its holding that Olson
had not established a claim under the ADA also defeated his claim
under the LAD. The court stated, "[f]or the same reasons that
plaintiff has failed to establish that he is disabled under the
ADA, he has likewise failed to establish that he is within the
class of persons protected by the LAD." Dist. Ct. Op. at 9, n.2.
     It is clear that the same McDonnell Douglas framework that
guides us under the ADA would also guide a New Jersey court under
the LAD. See McKenna v. Pacific Rail Service, 32 F.3d 820, 824
(3d Cir.1994); Waldron v. SL Industries, Inc., 56 F.3d 491, 503-
504 (3d Cir. 1995); Andersen v. Exxon Co., U.S.A., 446 A.2d 486,
490-491 (N.J. 1982); Kelly v. Bally's Grand, Inc., 667 A.2d 355,
359 (N.J. Super. Ct. App. Div. 1995); Grigoletti v. Ortho
Pharmaceutical Corp., 570 A.2d 903 (N.J. Sup. Ct. 1990). It is
not nearly so clear, however, whether a "disability" under the
ADA is the same as a "handicap" under the LAD.
     Olson argues that the LAD standard for demonstrating a
"handicap" is much less stringent than the standard for
demonstrating a "disability" under the ADA. Specifically, he
contends there is no requirement under the LAD that a handicap
"substantially limit one or more of the major life activities" of
an individual.
     In Andersen v. Exxon Co., U.S.A., 446 A.2d 486 (N.J. Sup.
Ct. 1982), the New Jersey Supreme Court, rejecting a construction
of the LAD that would make it applicable only to severe
disabilities, wrote:
          We need not limit this remedial legislation
          to the halt, the maimed or the blind. The
          law prohibits unlawful discrimination against
          those suffering from physical disability. As
          remedial legislation, the [LAD] should be
          construed with that high degree of liberality
          which comports with the preeminent social
          significance of its purposes and objects.
          Since the inception of the [LAD], our courts
          have repeatedly recognized its humanitarian
          concerns, its remedial nature and the liberal
          construction accorded it. The paramount
          purpose of the statute is to secure to
          handicapped individuals full and equal access
          to society, bounded only by the actual
          physical limits that they cannot surmount. .
          . . [I]t would be ironic indeed for the
          individual only slightly handicapped to be
          denied coverage under the act while more
          restricted individuals are accorded
          protection. The statute speaks in terms of
          any physical disability. There is simply no
          basis for limiting its coverage to so-called
          severe disabilities.

446 A.2d at 492 (citations and internal quotations omitted).
Although the circumstances in Andersen caused the court to speak
in terms of physical handicaps, the actual language of the LAD
encompasses more than physical impairment. The LAD provides, in
relevant part, as follows:
          "Handicapped" means suffering . . . from any
          mental, psychological or developmental
          disability resulting from anatomical,
          psychological, physiological or neurological
          conditions which prevents the normal exercise
          of any bodily or mental functions or is
          demonstrable, medically or psychologically,
          by accepted clinical or laboratory diagnostic
          techniques.

N.J.S.A. 10:5-5(q)(emphasis added).
     Thus, it appears that Olson would be suffering from a
handicap under the LAD if his depression, his sleep disorder or
his multiple personality disorder, singly or in combination,
would prevent the normal exercise of his bodily or mental
functions (as may be required under the ADA's substantial
limitation of a major life function) or if the disability is
diagnosed under medically accepted techniques. Accordingly, it
may be that the LAD does not require that Olson demonstrate that
his depression, sleep disorder, or multiple personality disorder
"substantially limit[] one or more of [his] major life
activities." 42 U.S.C. § 12102(2)(A), and that Olson can be
handicapped under the LAD without being disabled under the ADA.
However, we need not decide that issue now. Upon remand, the
district court will be able to resolve the LAD claim after
reviewing additional briefs of the parties and the latest New
Jersey authority. We regret, however, that that determination
must of necessity (given the absence of a certification procedure
in New Jersey) be based upon a federal court's assessment of the
current state of New Jersey law.

                               IV.
     For the above reasons, we will affirm the district court's
grant of summary judgment to GE on Olson's claim under the ADA
based on the district court's findings that Olson did not
demonstrate that he was disabled or had a record of impairment.
However, we will reverse the grant of summary judgment to GE on
Olson's ADA claim that GE regarded him as disabled and remand on
that issue only. We will also reverse the grant of summary
judgment to GE on Olson's LAD claim and remand for the district
court to consider whether Olson demonstrated that he is
handicapped as defined in the LAD.
