United States District Court, E.D. Pennsylvania
January 12, 2004.
BELL ATLANTIC CORPORATION, et al
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.
I. Factual Background
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 completed the third, despite initially
looking at the wrong set of documents. Pl's Mem., Ex. H at 77-78.
On or about April 27, 2000, because of Yudkovitz's performance on the
MPIP, Ms. Brown recommended to Ms. Cass-Schmidt that Verizon terminate
Yudkovitz's employment. Pl's Mem., Ex. H at 90.
On May 1, 2000, Yudkovitz suffered another relapse while at home. Pl.'s
Mem., Ex. E at 440-41. His symptoms were an "[i]nability to move around,
difficulty walking [and] balance off." Id. at 441. On May 8, 2000, three
days after he returned to work, Yudkovitz was notified that his
employment was terminated for performance reasons. Id. at 442-43; Pl.'s
Mem., Ex. Hat 91-92.
C. Yudokovitz's Requests to Telecommute
In July 1999, Yudkovitz asked his then-immediate supervisor, Mr.
DiTomasso, if he could work from home. Pl's Mem., Ex. E at 284-86. Mr.
DiTomasso responded that he did not know how an employee could arrange to
work from home. Id. After raising the issue with another manager, Mary
Kivlin, in October 1999, Yudkovitz approached Ms. Cass-Schmidt and
requested that he be permitted to work from home. Id. at 286-87; Pl.'s
Mem., Ex. J at 25. Yudkovitz wanted to work from home because his "wife
had to drive [him] into work and then
pick [him] up" and it was difficult for Yudkovitz to commute to and from
the train station. Pl.'s Mem., Ex. E at 222, 427-28. In furtherance of
his desire to work from home, Yudkovitz filled out and submitted to Ms.
Cass-Schmidt a Telecommuting Commitment form, in which Yudkovitz wrote,
among other things, that working from home would provide him with
"instant communications without the need for public transportation." Id.
at 229-34; Defs.' Br., Ex. I. Yudkovitz made no mention of his health
issues. Ms. Cass-Schmidt signed the Telecommuting Commitment form,
approving Yudkovitz's request for at-home computer access so that he could
telecommute during off-hours shifts. Id. at 230-34, 238, 296-97; Defs.'
Br., Ex. I; Pl's Mem., Ex. J at 25-26.
Following his November 1999 hospitalization, Yudkovitz once again asked
Ms. Cass-Schmidt if he could work from home during off-hour shifts. Id.
at 220-21. The reason Yudkovitz gave for wanting to work from home was
his "neurological disorder." Id. at 323. Ms. Cass-Schmidt said that she
would try to move Yudkovitz's request along. Id.
In March 2000, a Verizon technician appeared at Yudkovitz's home to
install an extra telephone line and set up his computer for at-home
access. Id. at 223-24. Thereafter, Yudkovitz asked Ms. Brown for
assistance in connecting his personal computer to Verizon's network. Id.
at 224-26. Ms. Brown allowed Yudkovitz and one of his colleagues, Tim
Monaghan, to leave work early, proceed to Yudkovitz's home, and attempt
to link Yudkovitz's personal computer with Verizon's network. Id. Mr.
Monaghan was unable to link Yudkovitz's personal computer with Verizon's
network because Yudkovitz's personal computer did not have sufficient
memory to run the software necessary to telecommute. Id. at 225. In the
end, Yudkovitz never successfully established a link with Verizon's
network. Id. at 299.
II. Procedural History
Following his termination, Yudkovitz filed a charge of disability
discrimination with the Equal Employment Opportunity Commission (the
"EEOC")*fn4 and the Pennsylvania Human Relations Commission (the
"PHRC"). After receiving a right to sue letter from the EEOC, Pl.'s
Mem., Ex. C, Yudkovitz filed suit against Verizon alleging disability
discrimination in violation of the Americans with Disabilities Act (the
"ADA" or the "Act") (Count I) and failure to pay wages in violation of
the Pennsylvania Wage Payment and Collection Law (Count II). (Dkt. No.
1). Yudkovitz later amended his complaint to add an additional Count
alleging disability discrimination in violation of the Pennsylvania Human
Relations Act (Count III) after receiving notification from the PHRC that
his case had been closed administratively. (Dkt. No. 14). On March 12,
2003, the parties jointly filed a Stipulation to dismiss with prejudice
Count II. (Dkt. No. 20). As a result, the only claims that remain before
the Court are Counts I and III.
Verizon now moves for summary judgment pursuant to Rule 56 of the
Federal Rules of Civil Procedure. With respect to Yudkovitz's claim that
Verizon failed to accommodate his alleged disability by refusing to allow
Yudkovitz to work from home, Verizon argues that: (1) he did not have a
covered disability; (2) Yudkovitz never requested an accommodation for any
disability; and (3) Yudkovitz never requested any reasonable
accommodation. Defs.' Br. 1. As for Yudkovitz's claim that Verizon
discriminated against him on the basis of his alleged disability when it
terminated his employment, Verizon argues that: (1) he was not
and (2) Yudkovitz cannot adduce evidence that Verizon's reasons for
terminating his employment were a pretext for discrimination. Id.
Yudkovitz responds that he has an ADA-covered disability, Verizon denied
his request to telecommute, which is a reasonable accommodation under the
ADA, and a reasonable jury could find that Verizon's reasons for
terminating his employment were a pretext for discrimination. PL's Mem.
III. Standard of Review
Summary judgment is appropriate when "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law." Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505 (1986). In reviewing the
record, "a court must view the facts in the light most favorable to the
nonmoving party and draw all inferences in that party's favor."
Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994). The moving
party bears the burden of showing that the record discloses no genuine
issues as to any material fact and that he or she is entitled to judgment
as a matter of law. See Fed.R.Civ.P. 56(c); see also Adickes v. S.H. Kress
& Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608 (1970). Once the moving
party has met its burden, the non-moving party must go beyond the
pleadings to set forth specific facts showing that there is a genuine
issue for trial. See Fed.R.Civ.P. 56(e); see also Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348 (1986).
There is a genuine issue for trial "if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party."
Anderson, 477 U.S. at 249. "Such affirmative evidence regardless of
whether it is direct or circumstantial must amount to more than a
scintilla, but may amount to less (in the evaluation
of the court) than a preponderance." Williams, 891 F.2d at 460-61.
A. Disability Claims
The ADA requires employers to provide "reasonable accommodations to the
known physical or mental limitations of an otherwise qualified individual
with a disability who is an applicant or employee, unless such covered
entity can demonstrate that the accommodation would impose an undue
hardship." 42 U.S.C. § 12112(b)(5)(A). A "qualified individual with a
disability is defined as "an individual with a disability, who, with or
without reasonable accommodation, can perform the essential functions of
the employment position that such individual holds or desires." Id. §
"In order to make out a prima facie case under the ADA, a plaintiff
must be able to establish that he or she (1) has a `disability' (2) is a
`qualified individual' and (3) has suffered an adverse employment action
because of that disability." Deane v. Pocono Med. Ctr., No. Civ. A.
96-7174, 1998 WL 173100, at *3 (3d Cir. Apr. 15, 1998) (citing Gaul v.
Lucent Techs. Inc., 134 F.3d 576, 580 (3d Cir. 1998)). The Act defines a
"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).
1. Substantially Limited in a Major Life Activity
To qualify as disabled under subsection (A) of the ADA, Yudkovitz must
demonstrate that (1) he has a physical or mental impairment (2) that the
impairment limits a major life activity and (3) that the limitation on
the major life activity is substantial. It is
undisputed that MS qualifies as a physical impairment under
45 C.F.R. § 84.3(j)(2)(I)*fn5 and that walking and lifting are major
life activities.*fn6 Thus, the relevant question is whether Yudkovitz
has shown that his MS substantially limits his ability to walk or lift.
The EEOC regulations provide that an individual is substantially
limited in a major life activity if he is "[u]nable to perform a major
life activity that the average person in the general population can
perform" or is "[s]ignificantly restricted as to the condition, manner or
duration under which [he or she] 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). In determining whether an
impairment substantially limits a major life activity, the regulations
instruct courts to consider the following factors: "[t]he nature and
severity of the impairment; [t]he duration or expected
duration of the impairment; and [t]he 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).
Yudkovitz alleges that "MS greatly affects the left side of his body in
general and greatly restricts his left leg, causing [him] to have trouble
with his balance, great difficulty in walking and prevents him from
carrying heavy objects." Compl. ¶ 47. When asked during his deposition
about his limitations, Yudkovitz stated that he walks slower, has
difficulty climbing steps, uses a quad-based cane as needed,*fn7 and is
unable to carry things in his left hand. Pl.'s Br., Ex. E at 104,
474-75. Yudkovitz also submitted office notes from his treating
physician, David S. Roby, M.D., in which Dr. Roby stated that Yudkovitz
experiences left-sided weakness, fatigue and an altered gait. PL's Br.,
Yudkovitz, however, presented no evidence that the restriction on his
ability to walk is more than moderate. Like the plaintiff in Kelly v.
Drexel Univ., Yudkovitz is still physically capable of walking and
climbing stairs. 94 F.3d 102, 106 (3d Cir. 1996). Yudkovitz also failed
to offer any guidance as to the limitations on his lifting other than an
inability to carry "heavy objects."*fn8 Compl. ¶ 47. Moderate
restrictions on the ability to walk do not amount to a substantial
limitation. See Kelly, 94 F.3d at 106 (Plaintiffs inability to walk
"`more than a mile or so'" and his difficulty climbing stairs do not
constitute a substantial limitation in his ability to
walk.); Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1025 (5th Cir. 1999)
(holding that limping, "mov[ing] at a significantly slower pace than the
average person," and difficulty walking in extreme cold do not constitute
a substantial impairment); Penny v. United Parcel Serv., 128 F.3d 408, 415
(6th Cir. 1997) ("Moderate difficulty or pain experienced while walking
does not rise to the level of a disability."); see also 29 C.F.R. Pt.
1630, App. § 1630.2(j) (An individual's walking is substantially limited
if he or she "can only walk for very brief periods of time."). Nor does
the inability to lift heavy objects constitute a substantial limitation.
See Marinelli v. City of Erie, 216 F.3d 354, 363-64 (3d Cir. 2000)
(Plaintiff's inability to lift more than ten pounds did not constitute a
substantial limitation on the major life activity of lifting.); Gillen v.
Fallon Ambulance Serv., Inc., 283 F.3d 11, 21 (1st Cir. 2002) (The
"inability to lift heavy objects does not constitute a substantial
limitation on a person's overall ability to lift [as the] capacity to
perform heavy lifting is not a trait shared by the majority of the
population."); McCoy v. USF Dugan, Inc., No. 01-3189, 2002 WL 1435908, at
*2-*3 (10th Cir. Jul 3, 2002) (holding that plaintiff was not
substantially limited in the major life activity of lifting because she
was unable to lift more than twenty pounds); Thompson v. Holy Family
Hosp., 121 F.3d 537, 539-40 (9th Cir. 1997) (finding plaintiffs
twenty-five pound lifting restriction not substantially limiting).
Therefore, the Court, although sympathetic towards Yudkovitz's
condition, is satisfied that it does not substantially limit him in the
relevant major life activities of walking and lifting.
2. Record of Impairment
Next, Yudkovitz asserts that he is disabled by virtue of a record of
impairment. Compl. ¶ 46. To maintain his claim based on a record of
impairment, Yudkovitz must show that he had an impairment which
substantially limited a major life activity. See Olson v. Gen. Elec.
Astrospace, 101 F.3d 947, 953 (3d Cir. 1996) (regarding the plaintiff's
record of impairment claim, the court stated that it was absolutely
necessary for him to demonstrate that the impairment limited one or more
of his major life activities); Kresge v. Circuitek, 958 F. Supp. 223, 225
(E.D. Pa. 1997) ("[P]laintiff's impairment must be substantially limiting
in order for his past records to be a `record of such impairment.'"). As
noted above, Yudkovitz's MS does not substantially limit his major life
activities of walking or lifting. Therefore, Yudkovitz does not qualify
as disabled under subsection (B) of the ADA. 42 U.S.C. § 12102(2)(B).
3. Regarded as Disabled
Finally, Yudkovitz claims that he is disabled because Verizon regarded
him as having a disability. Compl. ¶ 46. An individual is regarded as
disabled within the meaning of the ADA if "(1) a covered entity
mistakenly believes that a person has a physical impairment that
substantially limits one or more major life activities, or (2) a covered
entity mistakenly believes that the person's actual, nonlimiting
impairment substantially limits one or more major life activities."
Sutton v. United Airlines. Inc., 527 U.S. 471, 489, 119 S.Ct. 2139,
2149-50 (1999). The mere fact that an employer is aware of an employee's
impairment, however, does not demonstrate that the employer regarded the
employee as disabled. See Kelly, 94 F.3d at 109 (noting that the district
court properly rejected plaintiff's argument that he was "regarded as
disabled" because his "limp was `visible and apparent' and his supervisor
was aware of his impairment). That Verizon noticed Yudkovitz walked with
a "slight limp" or knew of his physical impairment does not demonstrate
that it perceived Yudkovitz as being disabled. " Pl.'s Mem., Ex. H. at
33; Pl.'s Mem., Ex. E at 207, 212, 214. Accordingly, we conclude that
Yudkovitz has not established that he is disabled under subsection (C) of
42 U.S.C. § 12102(2)(C).
In sum, we find that Yudkovitz is not disabled within the meaning of
B. Discrimination Claims
1. ADA Claim
In order to establish a prima facie case of discrimination under the
ADA, a plaintiff must demonstrate that: "(1) 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." Shaner v.
Svnthes, 204 F.3d 494, 500 (3d Cir. 2000) (quoting Gaul v. Lucent
Techs., Inc., 134 F.3d 576, 580 (3d Cir. 1998). Because Yudkovitz is not
disabled within the meaning of the ADA, he cannot establish a prime facie
case of discrimination under the Act. Even if a prime facie case of
discrimination could be established, Yudkovitz's claim fails because he
has not carried his burden of persuasion under McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973).
The Third Circuit applies the McDonnell Douglas burden-shifting
framework to ADA discrimination claims. See Shaner, 204 F.3d at 500. The
McDonnell Douglas analysis proceeds in three stages:
First, the plaintiff must establish a prima facie case
of discrimination. If the plaintiff succeeds in
establishing a prima facie case, the burden shifts to
the defendant "to articulate some legitimate,
nondiscriminatory reason for the employee's
rejection." Finally, should the defendant carry this
burden, the plaintiff then must have the opportunity
to prove by a preponderance of the evidence that the
legitimate reasons offered by the defendant were not
its true reasons, but were a pretext for
Jones v. School Dist. of Philadelphia, 198 F.3d 403, 410 (3d Cir. 1999).
Here, Verizon has articulated a legitimate, nondiscriminatory reason
for terminating Yudkovitz's employment, namely, substandard performance.
Having done so, the burden shifts to Yudkovitz to present sufficient
evidence from which a jury could conclude that Verizon's purported reason
for terminating his employment was in actuality a pretext for intentional
disability discrimination. See Shaner, 204 F.3d at 501 (citing St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 2752 (1993)).
Specifically, Yudkovitz must point "`to some evidence, direct or
circumstantial, from which a factfinder would 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.
(quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994) and Sheridan
v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1067 (3d Cir. 1996)).
Yudkovitz, however, has failed to do so here.
Yudkovitz presented himself as an experienced project manager who could
be expected to hit the ground running. Instead, he struggled, missing
deadlines and making poor oral presentations. Yudkovitz's managers found
that he lacked necessary computer skills, produced inaccurate documents,
did not respond to feedback and was unable to handle multiple assignments
at one time. As a result, Yudkovitz received a performance review of
unsatisfactory and, accordingly, was placed on a performance improvement
plan. Although Yudkovitz continued to struggle, his supervisor extended
the plan, giving him every opportunity to display any skills. But when
Yudkovitz failed to show significant improvement, Verizon terminated his
employment for performance reasons.
There is nothing in the record to suggest that Yudkovitz's condition
played any role in Verizon's criticism of his performance or its decision
to terminate his employment. To the contrary, the record demonstrates
that Yudkovitz's managers perceived his work to be deficient and were
critical of Yudkovitz's performance beginning at least nine months before
his termination. Further, they communicated their concerns to Yudkovitz
long before they knew he had MS. Indeed, Yudkovitz did not disclose to
his managers that he had MS until April 18, 2000, more than one month
after he was placed on a performance improvement plan. That Yudkovitz's
termination came within weeks of his disclosure, standing alone, is not
sufficient evidence of pretext. See Skrjanc v. Great Lakes Power Serv.
Co., 272 F.3d 309, 317 (6th Cir. 2001); accord Nelson v. J.C. Penney,
Inc., 75 F.3d 343, 346-47 (8th Cir. 1996): Anderson v. Coors Brewing
Co., 181 F.3d 1171, 1180 (10th Cir. 1999). Thus, even if Yudkovitz could
establish a prime facie case of discrimination under the Act, which he
cannot, he has not presented sufficient evidence to permit the trier of
fact either to disbelieve Verizon's reasons, or to conclude that
disability discrimination was the real reason for Verizon's adverse
2. PHRA Claim
Courts "generally interpret the PHRA in accord with its federal
counterparts." Kelly, 94 F.3d at 105 (citations omitted). "[A]ny analysis
applied to the ADA claim applies equally to the PHRA claim." Matczack v.
Frankford Candy and Chocolate Co., 136 F.3d 933, 935 n.l (3d Cir. 1997)
(citing Kelly, 94 F.3d at 105). Therefore, this Court finds that
Yudkovitz has failed to establish discrimination under the PHRA.
Accordingly, Verizon's motion is granted. An appropriate order follows.
AND NOW, this ___ day of January, 2004, upon consideration Defendants
Bell Atlantic Corporation, Bell Atlantic Network Services, Inc., Verizon
Communications Inc. and Verizon Services Corp.'s Motion to for Summary
Judgment (Dkt. No. 19), and Plaintiff Louis Yudkovitz's response
thereto, it is hereby ORDERED that Defendants' Motion is GRANTED. The
Clerk is directed to statistically close this matter.