The opinion of the court was delivered by: LEGROME DAVIS, District Judge
Presently before this Court is Defendants Bell Atlantic Corporation,
Bell Atlantic Network Services, Inc., Verizon Communications Inc. and
Verizon Services Corp.'s (collectively, "Verizon") Motion to for Summary
Judgment (Dkt. No. 19). For the reasons discussed below, Defendants'
Motion is GRANTED.
A. Yudkovitz's Medical Condition
Plaintiff Louis Yudkovitz ("Yudkovitz") suffers from
relapsing-remitting multiple sclerosis ("MS"). Plaintiff's Memorandum of
Law in Opposition to Defendants' Motion for Summary Judgment ("Pl's
Mem."), Ex. E at 102-03 (Dkt. No. 21). His exacerbation frequency appears
to be approximately once per year and each exacerbation lasts from one
week to a month. When he experiences a "flare-up," Yudkovitz gets dizzy,
loses control over his left side and has difficulty climbing steps. Id.
at 104. He also has "to be careful about getting around with [his] left
leg," Id., and cannot carry "heavy objects" in his left hand. Compl. ¶
47. When his MS is in remission, Yudkovitz still experiences problems in
his left leg and left arm. Pl.'s Mem., Ex. E at 474. As a result,
Yudkovitz walks slower, has difficulty climbing steps, lacks the mobility
he had in his youth, and is unable to lift or move things around the
house. Id. at 474-75.
Yudkovitz, however, does not have a problem walking around the house or
on a flat surface. Id. at 109. Outdoors, Yudkovitz is able to walk, but
is careful not to trip over uneven pavement. Id. To date though,
Yudkovitz has never fallen while walking. Id. at 110-11. Further, when
working for Verizon, Yudkovitz's MS never affected his job performance.
Id. at 196; Defs.' Brief in Support of Its Motion for Summary Judgment
("Defs.' Br."), Ex. C at 2.
B. Yudkovitz's Tenure with Verizon
In March 1999, Yudkovitz sought employment through a recruiting firm,
Romac International ("Romac"). PL's Mem., Ex. E at 136-37. Romac arranged
a job interview with Verizon for a position in its Order Management
Department. Id. at 140-41; PL's Mem., Ex. J at 12. Yudkovitz interviewed
with Elizabeth Cass-Schmidt, Senior Manager in Verizon's Order Management
Department, and Kathy Buttil, Verizon's Hiring Manager. PL's Mem., Ex J
at 6-8. Yudkovitz presented himself as an experienced project manager who
had worked for 22 different companies over 31 years. Defs.' Br., Ex. A;
PL's Mem., Ex. J at 13; PL's Mem., Ex. E at 147. Yudkovitz, however, did
not disclose during the interview that he had MS. Id. at 15; Pl's Mem.,
Ex. E at 146, 361-62.
On June 1, 1999, Verizon hired Yudkovitz over five other candidates as
a Software Manager, Level III in the Release Management Department. Id.
at 15-16; PL's Mem., Ex. E at 252-53; Pl.'s Mem., Ex. H at 16; PL's Mem.,
Ex. J at 13; PL's Mem., Ex. E at 147. As a Software Engineer Level III,
Yudkovitz was expected "to come in the door and be, in a very, very quick
period of time, if not immediately, very, very productive." PL's Mem.,
Ex. J at 16, 45-46.
About three months into the job, Plaintiff was assigned the task of
recording minutes at weekly department meetings and distributing them to
his co-workers before the next
meeting. PL's Mem., Ex. E at 266. On several occasions, Yudkovitz was
unable to generate meeting minutes in a timely fashion. Id. at 268.
Plaintiff was also assigned the task of making an oral presentation on
production support to a group of managers, including Ms. Cass-Schmidt.
Id. at 277. According to Ms. Cass-Schmidt, Plaintiffs presentation was
incomplete, factually incorrect and poorly organized. PL's Mem., Ex. J at
36-37. Rosemary Brown, who became Yudkovitz's supervisor in October
1999, also attended the presentation and concluded that Yudkovitz had
organizational deficiencies and lacked strong presentation skills. PL's
Mem., Ex. H at 29-30. Neither Ms. Cass-Schmidt nor Ms. Brown knew, at the
time, that Yudkovitz suffered from MS. PL's Mem., Ex. E at 283-84.
On November 11, 1999, Yudkovitz was hospitalized after suffering a
relapse while walking through a shopping mall. Id. at 204-05. The
following day, Yudkovitz called his then-immediate supervisor, Ms. Brown
to inform her that he would be out sick because his "neurological
disorder ha[d] flared up." Id. at 207. In response, Ms. Brown instructed
Yudkovitz to contact CORE Inc. ("CORE"), an independent third-party
company that provides Verizon with employee disability management. Id. at
208-09; Pl's Mem., Ex. H at 33-34. Yudkovitz called CORE "continuously"
and "kept them informed" during his absence. Id. at 209. CORE notified
Verizon that Yudkovitz qualified for short-term disability, but it did
not share with Verizon any information about the nature of Yudkovitz's
condition. Defendants' Reply Brief in Support of Its Motion for Summary
Judgment ("Defs.' Reply Br."), Ex. A ¶¶ 2-9; PL's Mem., Ex. H at 32.
Yudkovitz also called Ms. Brown on several occasions to update her as to
his status. PL's Mem., Ex. E at 211. During those calls, Yudkovitz
described his symptoms to Ms. Brown, saying he felt weak and dizzy. Id.
at 212. Yudkovitz did not, however, disclose that
he suffered from multiple sclerosis. Id. at 214.
Prior to Yudkovitz's November 1999 hospitalization, Ms. Brown noticed
he walked with a "slight limp." PL's Mem., Ex. H at 33. Ms. Brown recalls
discussing Yudkovitz's limp with her predecessor, Michael DiTomasso,
because they thought he "had a problem with his knee or his ankle." Id.
Ms. Brown also may have noticed Yudkovitz using a quad-based cane.*fn1
Id. at 36.
Ms. Brown continued to supervise Yudkovitz after he returned to work in
December 1999, and during the course of her supervision, developed a
number of concerns regarding Yudkovitz's performance. Ms. Brown believed
that "he had not shown an understanding of the applications and processes
within [the] organization." She was also "concerned about the accuracy
and timeliness of documents that [Yudkovitz] submitted[, . . .] about
his lack of PC skills and use of management tools[, . . .] about his
inability to react to feedback[, and] the quantity of assignments that he
could take on." PL's Mem., Ex. H at 48. As a result, in March 2000, Ms.
Brown drafted her review of Yudkovitz and rated his performance as
unsatisfactory.*fn2 Defs.' Br., Ex. F. Ms. Cass-Schmidt reviewed a draft
of Ms. Brown's review of Yudkovitz and agreed with Ms. Brown's assessment
of his performance. Pl's Mem., Ex. H at 67; PL's Mem., Ex. J at 43, 49.
Because Yudkovitz's performance was rated as unsatisfactory, he was
placed on a
Management Performance Improvement Plan (the "MPIP"),*fn3 Pl.'s
Mem., Ex. J at 43, 49, a written copy of which was given and explained to
Yudkovitz on March 13, 2000. Defs.' Br., Ex. G. The MPIP notified
Yudkovitz that a failure to rectify his performance deficiencies "could
result in discipline up to and including dismissal." Id.
Pursuant to the MPIP, Yudkovitz was required to satisfactorily complete
two assignments by the end of March 2000, and pursue some computer
training. Id. With respect to the two assignments, Yudkovitz completed
them only after receiving from Ms. Brown a great deal of guidance. Pl.'s
Mem., Ex. H at 67-69, 79; Pl.'s Mem., Ex. E at 312. Ms. Brown noticed
"some improvement, although [Yudkovitz] was not to the level where [she]
thought he should be." As for the computer training, Yudkovitz completed
Microsoft Excel training and took a Lotus Notes class via the internet.
Pl.'s Mem., Ex. H at 76.
Although Yudkovitz struggled with the two assignments, Ms. Brown
decided to extend the MPIP because "she wanted to see if there were other
tasks [Yudkovitz] would perform better." Id. at 76. Ms. Brown drafted the
extended Management Performance Improvement Plan (the "EMPIP") on April
11, 2000. Defs.' Br., Ex. H; Pl.'s Mem., Ex. H at 78.
On April 18, 2000, Yudkovitz asked Ms. Brown if there would be any
consequences if he missed any more time from work. Pl.'s Mem., Ex. E at
313-14. Ms. Brown told Yudkovitz that it would probably cost him his
job. Id. at 314. Yudkovitz, in response, disclosed for the first time
that he had MS. Id. at 214, 301; PL's Mem., Ex. H at 37-38; Pl.'s
Mem., Ex. J at 51-52.
On the same day, Ms. Brown provided Plaintiff with a copy of the
EMPIP, which consisted of three additional assignments to be completed by
the end of April 2000. Defs.' Br., Ex. H; Pl's Mem., Ex. H at 78-79.
Yudkovitz performed the first assignment unsatisfactorily, showed
improvement in completing the second, although he required significant
feedback to get it correct, and ...