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DAYOUB v. PENN-DEL DIRECTORY CO.

May 11, 1999

JAMES R. DAYOUB, PLAINTIFF,
v.
PENN-DEL DIRECTORY COMPANY, DEFENDANT.



The opinion of the court was delivered by: Reed, District Judge.

MEMORANDUM

Plaintiff James R. Dayoub ("Dayoub") brought this lawsuit alleging that he is disabled and that his employer failed to accommodate his disability in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"). Presently before the Court is the motion of the defendant Penn-Del Directory Company ("Penn-Del") for summary judgment (Document No. 12), the response of Dayoub thereto as well as the reply and sur-reply of the parties. Jurisdiction is proper pursuant to 28 U.S.C. § 1331. Based upon the following analysis the motion will be denied.

I. Procedural History

Dayoub initially brought an administrative claim of disability discrimination with the Equal Employment Opportunity Commission ("EEOC"). Following its investigation, on March 4, 1997, the EEOC provided Dayoub with a right to sue letter. Dayoub then brought suit against Penn-Del and its parent corporation, Bell Atlantic Corporation. Bell Atlantic Corporation was dismissed from this action by agreement of the parties.

II. Background*fn1

Penn-Del is in the business of selling and servicing yellow pages advertising space in telephone books. Penn-Del hired Dayoub as part of its fast track management program on August 31, 1992. Dayoub was eligible for the fast track program because he had prior sales experience, including yellow pages advertising sales experience. As part of the program, Dayoub was placed in various sales and training positions for a limited time to give him a broad base of experience. Dayoub began the program in an account executive sales training class. Although Dayoub had performance issues relating to inappropriate behavior, Penn-Del kept him in the program. From March 8, 1993 through June 21, 1993, Dayoub worked as a sales coach. He was next assigned to be a personnel and training manager, a position he held until September 1993. Although Penn-Del asserts that Dayoub's supervisors were concerned that Dayoub had poor interviewing skills, had communication problems and had no concept of reporting times, Dayoub progressed to the position of District Sales Manager in September of 1993. As District Sales Manager, Dayoub experienced difficulties with paperwork requirements and management duties.

In March of 1994, Dayoub began seeing Olga L. Infante, M.D., a licensed psychiatrist. On April 6, 1994, after consultation with Dr. Infante, Dayoub informed Penn-Del that he was leaving work on short-term disability. As required by Penn-Del, Dayoub gave Penn-Del a note from Dr. Infante stating that Dayoub was suffering from depression and would be out for 8-10 weeks. (Plaintiff's Appendix in Support of His Response in Opposition to Defendant's Motion for Summary Judgment ("Plt.App.") at 1). On April 12, 1994, Penn-Del received a second note from Dr. Infante stating that Dayoub would be out for 6-8 weeks. (Id. at 2). On May 13, 1994, Dr. Infante wrote Penn-Del another note stating that Dayoub would be able to return to work in 4-6 weeks. (Id. at 3). Dr. Infante diagnosed Dayoub with Attention Deficit Disorder and depression.

During June, Dayoub and Dr. Infante began discussing Dayoub's return to work. In mid-June, Dayoub informed Penn-Del that his doctor told him he could return to work, but in a different position. (Defendant's Appendix in Support of Its Motion For Summary Judgment, ("Def.App.") at 53). However, Dayoub was told that the company usually requires that employees "be able to perform [their] normal job duties at 100% in order . . . to return from disability." (Id.). On June 14, 1994, Dr. Infante wrote a note stating that Dayoub was presently unable to return to work and may need up to 3-4 weeks of leave. (Plt.App. at 4).

Dayoub, nevertheless, contacted Raymond Veth, Director of Corporate Personnel, and discussed returning with a reassignment to another position. Veth in turn discussed the possibility of assigning Dayoub a sales territory with Robert Brentari, Dayoub's supervisor. Veth told Dayoub that before any specific job decisions were made, he would have to speak with Dr. Infante. In late June or early July, Veth spoke with Dr. Infante. Dr. Infante expressed her concern that not working was contributing to Dayoub's depression and that she thought he should and could return to work, albeit in another position. She also described what she thought his strengths and limitations were.

Following their conversation, Dr. Infante supplied Penn-Del with a psychiatric update dated July 5, 1994. (Plt.App. at 5). In the update, Dr. Infante states that it would be "safe and therapeutic" for Dayoub to return to work with some limitations. (Id.). Specifically, Dr. Infante stated that Dayoub would have difficulty with "multi-purpose roles where he is responsible for handling changes and supervising others." (Id.). Dr. Infante further suggested that Dayoub was "best suited to perform duties that he once mastered [and that] had a repetitive theme to them." (Id.). Dr. Infante also stated that Dayoub was aware that he would not be successful in a supervisory position and recommended that he be put in an instructing or training position.

Subsequently, Dayoub attempted to discuss his return to work with Veth. At that time, he was referred to John Boylan, Manager of Benefits. Boylan advised Dayoub that there was no opportunity for reassignment and that he could only come back to Penn-Del in his prior position of District Sales Manager. According to Dayoub, Boylan said the decision was final and that Dayoub needed clearance from his doctor before he could return to his old position of District Sales Manager. An internal phone call record reveals that prior to receiving the note from Dr. Infante clearing Dayoub to return to work, albeit in a different position, Boylan told the office with which Dayoub was communicating that "there is no position available for Jim. He must return to his DSM job at full capacity." (Def.App. at 57).

On August 5, 1994, Dr. Infante wrote a note stating that despite improvement in some areas, Dayoub was still experiencing significant impairment in other areas such as memory functioning. (Plt.App. at 6). Dr. Infante stated that Dayoub is still unable to perform his previous job and would not be able to return to work for at least 4-6 weeks. On September 19, 1994 Dr. Infante wrote a final note stating that Dayoub would be able to return to work on October 17, 1994 but that "at this time he cannot return to his Sales and Sales Management position." (Id. at 7).

On September 23, 1994, Brentari called Dayoub to discuss the latest note from Dr. Infante. Accordingly to Dayoub, Brentari inquired whether Dayoub would be returning to his former position of District Sales Manager. Dayoub told him that he was uncertain and could not guaranty the October 17th return date. Brentari then explained that Dayoub had become eligible for long term disability on September 5, 1994, and that he could not hold Dayoub's position as District Sales Manager open indefinitely. Brentari then informed Dayoub that he was terminated. According to ...


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