LOPEZ v. LOPEZ et al
Filing
77
OPINION. Signed by Judge Kevin McNulty on 2/4/14. (DD, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JORGE LOPEZ,
Civ. No. 2:10-06374 (KM)(MAH)
Plaintiff,
OPINION
V.
ESTELLA LOPEZ,
VERIZON NEW JERSEY INC., et al.,
Defendants.
MCNULTY. U.S.D.J.:
This matter comes before the Court upon the motion of the Defendants,
Estella Lopez and Verizon New Jersey, for summary judgment. Finding that
there is no material issue of fact requiring a trial, I enter summary judgment in
favor of the Defendants.
I.
BACKGROUND
The Plaintiff, Jorge Lopez,’ commenced this action in the New Jersey
Superior Court of Morris County, Case No. BER-L-08452-10, and filed a First
Amended Complaint (hereinafter “Complaint”) in that court on October 1, 2010.
(Docket No. 1). The Complaint alleges claims for retaliation under the Family
and Medical Leave Act (“FMLA”), 29 U.S.C. § 2615(a)(1)(2); for discrimination in
violation of the New Jersey Law Against Discrimination (“LAD”), N.J.S.A. 10:51; and for breach of contract. Compl. ¶ 24-67.
On December 8, 2010, the Defendants filed a Notice of Removal to this
Court pursuant to 28 U.S.C. § 1446. (Docket No. 1). The case was originally
assigned to Judge Peter G. Sheridan, transferred to Judge Esther Salas on
June 22, 2011 (Docket No. 21), and reassigned to me on August 1, 2012.
(Docket No. 69).
To avoid confusion, Jorge Lopez will be referred to as “Plaintiff,” and Estella
Lopez will be referred to as “Defendant Lopez.” To the Court’s knowledge, they are not
related.
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1
I consider the facts as stated in the Defendants’ Statement of Undisputed
Material Facts (“Def. SUMF”) and Plaintiff’s Responsive Statement of Material
Facts (“P1. RSMF”) pursuant to L. Civ. R. 56.1, and in the deposition transcripts
and documentary exhibits submitted as exhibits. Facts not contested are
assumed to be true.
A. Plaintiff’s Medical History
Plaintiff, Jorge Lopez, is a United States Marine Corps veteran. J. Lopez
Dep. (Docket 62-14) at 62. He received a medical discharge in June 1996. Id. at
72. Plaintiff has been diagnosed with bipolar disorder and post-traumatic
stress disorder (“PTSD”). J. Lopez Dep. at 38-40; SSA Notice of Decision, Aron
Deci. Exh. C (Docket No. 59-1) at 9-10. Plaintiff was first diagnosed with
bipolar disorder in or about late 2003 to early 2004, but had been experiencing
the symptoms for several years before that. Id. at 40-41. Plaintiff first
experienced symptoms of PTSD, and was first diagnosed with PTSD, in 2004.
Id. at 45-46.
B. Plaintiff’s Employment at Verizon
On June 12, 2000, Verizon hired Plaintiff as a Bilingual Sales and
Service Consultant in its Jersey City call center. J. Lopez Dep. (Docket No. 6214) at 90; E. Lopez Decl. (Docket No. 60) ¶ 3. Plaintiff’s job responsibilities
included fielding customer phone calls, providing customer service and sales.
Def. SUMF ¶ 10; J. Lopez Dep. at 111. Plaintiff remained in that position
during his employment at Verizon, but his job location changed. Def. SUMF ¶
9, P1. RSMF (Docket No. 63) ¶ 13. Verizon’s Jersey City call center was relocated
to Newark in late 2005. Def. SUMF ¶ 14. From then until the end of his
employment, Plaintiff worked in the Newark location. Id.; see also P1. RSMF ¶
18.
1. Verizon’s Code of Conduct
The Defendants allege that Plaintiff violated the Verizon Business Code of
Conduct (“Code of Conduct”). The Code of Conduct applies to “everyone who
acts on behalf of Verizon Business and its controlled subsidiaries and
affiliates—including employees, executive officers, agents, consultants,
contingent workers and interns.” Code of Conduct, Exh. A (Docket No. 76) at 8.
The Code of Conduct contains a disclaimer labeled “Legal Notice.” Id. at
10. That disclaimer states:
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This Code of Conduct is not an employment contract. Adherence to
the standards of this Code of Conduct is a condition of continued
employment. This Code does not give you rights of any kind, and
may be changed by the company at any time without notice.
Id.
The Code of Conduct prohibits violent, hostile, and abusive behavior in
the workplace or on company property. Id. at 11. It further states that Verizon
“will take immediate and appropriate action against offenders, up to and
including termination and referral for criminal prosecution.” Id. Damage to
property is also prohibited. Id.
2. Plaintiff’s Contact With Defendant Lopez
The parties disagree as to how much contact the Plaintiff had with
Defendant Lopez. Defendants assert that the two had “little day-to-day
contact.” Plaintiff asserts that they had daily email contact and saw each other
“at least every other day.” Def. SUMF ¶ 13; P1. RSMF ¶ 17.
In August 2006, after some Verizon team leaders complained that they
felt bullied and threatened, Defendant Lopez scheduled a meeting between
union stewards and team leaders. Def. SUMF ¶ 15; J. Lopez Dep. at 156. At
that meeting, Plaintiff cursed at three Verizon managers, including Defendant
Lopez. Id. ¶ 16; J. Lopez Dep. at 16 1-62 (stating that Plaintiff “los[t] control” of
his words); E. Lopez Deci. Exh. 2 (Docket No. 60).
This is Plaintiff’s description of the incident, taken from his deposition:
I said to Mr. Diabattista, “You’re fucked up.” I looked at Estela
Lopez and I said, “You disappoint the shit out of me.” And what I
turned to Yesenia Vega, I said, “I don’t even want to start with the
affairs and shit you have going on your team.”
Def. SUMF ¶ 16; J. Lopez Dep. at 162.2 Plaintiff was thereafter suspended for
fifteen days. Def. SUMF ¶ 18; P1. RSMF ¶ 23. Plaintiff was warned that his
behavior violated Verizon’s Code of Conduct and that further violations could
result in his termination. Id.
¶
In response to the suspension, Plaintiff filed a grievance with Verizon. Id.
19. The grievance was denied. Id. Plaintiff’s union appealed the outcome of
Plaintiff’s responsive statement of material facts denies that the outburst
occurred, directly contradicting his deposition testimony. P1. RSMF ¶ 22.
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the grievance through mediation. Def. SUMF ¶ 20. On April 30, 2007, the
union and Verizon entered into a Mediation Stipulation of Settlement in which
they agreed to a 15-day suspension of Plaintiff “with no recourse to mediation
in lieu of discharge.” Id.; E. Lopez Deci., Exh. 4 (Docket No. 60) at 30. Plaintiff
took no further action. J. Lopez Dep. At 165-166. He now asserts that he
abandoned his grievance because it was apparent that he would otherwise be
fired. P1. RSMF ¶ 24.
In 2007, Julio Cirilo was the Call Center Manager of the Bilingual Sales
and Service team. Def. SUMF ¶ 34; J. Lopez Dep. at 183-84. Upon Plaintiffs
request, he was permitted to transfer to a position under Cirilo’s chain of
command. Id. ¶ 35; J. Lopez Dep. at 183-84, 243-44. During this time period,
Defendant Lopez worked as a facilitation manager and did not directly
supervise any other employees. E. Lopez Dep. (Docket No. 62-17) at 58. In early
2008, Defendant Lopez returned to her previous position as Call Center
Manager. E. Lopez Dep. at 58. At that point, Plaintiff reported to team leader
Mary Lou Diaz, who reported to Defendant Lopez. E. Lopez Dep. at 76.
Plaintiff requested that he again be reassigned to a position under Cirilo.
Def. SUMF ¶ 39; E. Lopez Decl. ¶ 11. Cirilo, however, had been reassigned to a
staff job that did not have managers or associates in its chain of command.
Def. SUMF ¶ 38. Defendant Lopez investigated the possibility of such a
reassignment and consulted with Verizon Labor Relations. Id. ¶ 39; E. Lopez
Deci. ¶ 11. She then advised Plaintiff that there was not a vacant job opening
for which Plaintiff was qualified and that Cirilo no longer had a Bilingual Sales
and Service team reporting to him. Id.
Plaintiff stated at his deposition that he brought suit against Defendant
Lopez because “[s]he seemed to set out to hurt me.” J. Lopez Dep. at 236; Def.
SUMF ¶ 76. According to Plaintiff, Defendant Lopez was attempting to “[t]ake
away the means by which I earn an income.” J. Lopez Dep. at 238. Plaintiff
explained that Dalia Perez, the Call Center employee responsible for FMLA
leave and time off, told representatives “not to make a habit out of requesting
time off.” Id. at 237. (Plaintiff did not indicate that Perez specifically directed
that comment at him. Def. SUMF ¶ 76.) When Plaintiff called Perez’s statement
“inappropriate,” she responded that she would not apologize unless directed to
do so by Defendant Lopez. J. Lopez Dep. at 237.
Plaintiff asserts that Defendant Lopez engaged in a “full-fledged war
against the representatives in the office.” J. Lopez Dep. at 238. In particular,
Plaintiff indicated that Defendant Lopez ignored or mishandled employee
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scheduling, fire safety, and requests for time off. Id. at 238-39. Plaintiff did not
file a grievance with his union regarding these issues. Id. Plaintiff did not
identify any other examples of Defendant Lopez attempting to “hurt” him. Id. at
239.
Plaintiff did not speak directly with Defendant Lopez about his disability
or mental illness. Id. at 236. He stated, however, that while employed at
Verizon, he spoke to his direct supervisors, Adriana Giz and Robert Fernandez,
about his diagnoses and treatment for PTSD and bipolar disorder. Id.
C. Plaintiff’s FMLA Leaves
Verizon’s Absence Reporting Center (“ARC”) administers the absences of
Verizon employees. Def. SUMF ¶ 22 (citing Keating Deci. (Docket No. 61) ¶ 1).3
Among other things, ARC determines whether such absences qualify for
coverage under the Family Medical Leave Act (“FMLA”). Id. In doing so, it must
consider, for example, whether an absence is related to a serious health
condition covered by the FMLA. Id. For that purpose, ARC tracks attendance
records and communicates with employees and their health care providers. Id.
¶ 23. Employees and health care providers submit to ARC “FMLA Certification
Forms” containing medical facts supporting the applications. Id.
Medical diagnosis information received by ARC, however, is not
communicated to Absence Administrators or direct supervisors. Def. SUMF ¶
28. ARC communicates with “Absence Administrators” at particular Verizon
worksites regarding the expected duration of approved FMLA leaves for
administratively eligible employees. Id. But ARC does not tell Absence
Administrators or direct supervisors about the diagnoses of absent employees.
Id. Even if the employee or health care provider has volunteered such medical
information, ARC treats it as confidential. Id. Plaintiff nevertheless asserts that
Plaintiff objects to the Keating Declaration because Keating was not deposed,
which made it “very difficult if not impossible for the Plaintiff to submit a cogent
response.” P1. RSMF ¶ 25. The Declaration states that Theresa Keating is employed as
a Senior Analyst at Verizon’s ARC. Keating would have knowledge of Verizon’s policies
governing absences and F’MLA leave and Plaintiff does not appear to contest the
policies described in the declaration. See id. ¶J 25 28. Rather, he asserts that,
despite such policies, Verizon human resources personnel had knowledge of his
medical conditions. I do not find the dispute to be material. For the purposes of this
motion, I assume Plaintiffs assertion to be correct—that Verizon knew about Plaintiffs
medical conditions.
3
—
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Verizon human resources had “full and complete knowledge of Plaintiffs
disabilities.” P1. RSMF ¶ 26. This assertion has support in the record.
Over the course of his employment at Verizon, Plaintiff submitted
“numerous” FMLA Certification Forms to ARC. Def. SUMF ¶ 24. Three of these
are attached to Defendants’ papers. These forms correspond to intermittent
absences commencing on (1) September 28, 2004 (occurring one to two days a
week over a period of six months); (2) November 14, 2006 (occurring two to
three times per month and lasting one to two days over a period of six months);
and (3) June 28, 2007 (occurring two to three times a month and lasting one to
26; Keating Deci., Exh. A-C
two days over a period of 12 months). Id. ¶ 24
(Docket No. 61). The Certification Forms stated the basis for the absences.
Keating Decl. ¶ 3. For the first set of absences, which commenced on
September 28, 2004, the psychiatrist cited Plaintiffs “[d]epressed mood,
inability to concentrate, low energy, mood swings.” Id. For the second and third
set of absences, which commenced on November 14, 2006 and June 28, 2007,
the psychiatrist stated that Plaintiff was “unable to interact with co-workers”
because of “[a]gitation, irritability and impulsivity” (November 2006 and June
2007). Id. ¶J 4-5. The Certification Forms did not specify a diagnosis. ¶ 27.
—
ARC’s records show that Plaintiff obtained four FMLA approvals for
intermittent leaves of absence from 2005 to 2008. Id. ¶ 29. Two of those leaves,
in 2005 and in 2007, were in connection with the birth of Plaintiffs children.
Id. The other two intermittent leaves, from November 2006 through May 2007,
and from June 2007 to June 2008, were for absences in connection with
Plaintiffs mental health. Id.
ARC’s records further show the following absence episodes, which had
varying durations:
Year
2005
2006
2007
2008
FMLA Approvals
33
9
52
19
Episodes
36
14
53
19
Plaintiff imputes knowledge to Verizon based on the medical information
submitted for FMLA purposes and from the Department of Veteran Affairs. See P1.
RSMF ¶ 26. The letter Plaintiff sent to his co-workers following the October 6, 2008
incident further supports his assertion that his medical condition was known to
Defendants. See Docket No. 60-1 at 9-11 (stating that Plaintiff had “on many
occasions openly talked about [his] condition). Plaintiff also asserts that he discussed
his conditions with his superiors. J. Lopez Dep. at 236.
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Def. SUMF ¶ 30. Nine of these 122 absence episodes (approximately seven
percent) were not approved for FMLA leave. See id. These denials were based on
insufficient hours worked in the prior 12 months and lack of documentation
from a health care provider showing a serious health condition. Id. ¶ 31.
After each one of the FMLA-certified leaves, Plaintiff returned to his
position at Verizon without discipline, demotion, termination, or a negative
effect on his compensation. Id. ¶ 32; J. Lopez Dep. at 177, 189-190; P1. RSMF ¶
28.
D. October 6, 2008 Incident and Investigation
On October 6, 2008, Plaintiff was on a service telephone call with an
“irate” customer. Def. SUMF ¶ 40; J. Lopez Dep. at 191. After reviewing the
account, Plaintiff concluded that the customer had a billing problem that he
could not resolve. J. Lopez Dep. at 191; Def. SUMF ¶ 40. Plaintiff attempted to
get assistance from a team leader or supervisor but was unable to do so. Def.
SUMF ¶ 41; P1. RSMF ¶ 34; J. Lopez Dep. at 192-93.
Plaintiff later stated that he felt “like the walls were closing in” on him.
Def. SUMF ¶ 42; J. Lopez Dep. at 193; P1. RSMF ¶ 35. Plaintiff stood up and
yelled for help from a team leader. Def. SUMF ¶ 43; J. Lopez Dep. at 194. Ana
Cardoso, a Verizon employee sitting across from Plaintiff, told him that he was
“freaking her out.” Def. SUMF ¶ 43 (citing J. Lopez Dep. at 198, 212); E. Lopez
Decl. ¶ 11. Plaintiff then sat down, picked up a computer monitor and
slammed it onto his desk. Def. SUMF ¶ 44 (citing J. Lopez Dep. at 205-07); P1.
RSMF ¶ 37 (stating that monitor was “knocked over”); Cruz Dep. (Docket No.
62-16) at 35 (stating that Plaintiff came to Cruz’s work station and told her that
he had just “slammed” his computer).
Plaintiff then went to the workstation of his wife, Li Mm Cruz, and told
her that he was going home because he was “not well.” Def. SUMF ¶ 45; J.
Lopez Dep. at 215-16. Plaintiff went to Defendant Lopez’s office, where he
spoke to team leader Elizabeth Pino. Id. ¶ 46. (Evidently, Defendant Lopez was
not present.)
This is Plaintiff’s account of his conversation with Pino:
[S]he said, “Jorge, you don’t look well. You’re not well. And the
people that sit around you, they got scared, they saw you walk
away, they saw you yelling, they saw you slam your monitor.
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What’s going on? I said, “I lost control. I don’t know what to do. I
can’t help the customers. I’m not getting the support I need, and I
don’t know what to do.” She said, “Jorge, you need to go see a
doctor.”
Id.
¶
46; J. Lopez Dep. at 195-96.
Plaintiff then left the call center and went home. Def. SUMF ¶ 48; P1.
RSMF ¶ 43; J. Lopez Dep. at 215. Plaintiff did not interact with Defendant
Lopez at all on October 6, 2008. Def. SUMF ¶ 47.
Plaintiff did not return to work the following day; he immediately applied
for a leave of absence. Id. ¶ 50. His claim for a short-term disability leave was
granted by Met Life, Verizon’s disability vendor. Id. ¶ 50-51; P1. RSMF ¶ 43.
This disability leave ran concurrently with his FMLA leave. Id. ¶ 52.
After the incident on October 6, 2008, the team leader on duty, Americo
Colon, commenced an investigation. Def. SUMF ¶ 53. Colon took photos of
Plaintiff’s workstation and prepared a report, which included statements of
witnesses. Id. Plaintiff contests the accuracy of these photos, and says they
may be staged. P1. RSMF ¶ 48; Workstation Photos, P1. RSMF Exh. V (Docket
6222).6 When Plaintiff’s wife, Li Mm Cruz, was shown one of the photos at her
deposition, she testified that it was not a “fair and accurate depiction of the
scene” because she recalled the monitor being knocked over, and not the way it
was depicted in the photo. Cruz Dep. (Docket No. 62-16) at 36-37. However,
Cruz stated that she recalled the monitor being “knocked over.” Id. at 35-36.
Mariluz Diaz testified that the “flat screen” of the computer was facing down
and the cords were pulled out. Diaz Dep. (Docket 62-15) at 45-46. Diaz did not
recall seeing damage to the work station. Id. at 48.
Defendants assert that Plaintiff’s co-workers gave statements that they
were upset by the incident. Def. SUMF ¶ 54-55 (citing E. Lopez Deci. ¶ 12).
Plaintiff asserts, inter alia, that the Court should rely on the written statements
themselves, and not on the Defendants’ interpretation. P1. RSMF ¶ 49-51.
Plaintiff assets that FMLA leave should not run “concurrent as disability leave is
dissimilar than FMLA leave.” P1. RSMF ¶ 47.
6
There is no evidence in the record supporting this assertion, and the photos
appear to be consistent with the witness statements, including that of Li Mm Cruz.
5
8
That is a fair point, and the statements themselves are appended as Exhibits 5
and 6 to the E. Lopez Decl.
7
After the October 6, 2008 incident, Plaintiff sent a letter to his coworkers
which stated in part:
Hearing someone yelling at the top of their lungs for a manager
and then watching them smash their monitor is not something
anyone wants to have to deal with in an office environment. These
actions are those of a person in distress. I have on many occasions
openly talked about my condition. I am Sick. That is no surprise...
I have to say that I am still shocked this happened again. These
types of actions are not what I am known for. I am known to be off,
hyper and unorthodox but not generally violent or aggressive. And
by saying “again” I am admitting this is not the first time I have an
episode of uncontrollable violent reactions. I have been under
treatment for Bipolar\Manic Depression since I was 15 and Post
Traumatic Stress Disorder for thirteen years.
Exhibit 8 (Docket No. 60-1); see also Def. SUMF ¶ 57, P1. RSMF ¶ 52; J. Lopez
Dep. at 250-51. Lopez’s wife hand-delivered the three-page letter to Plaintiff’s
co-workers at the call center. J. Lopez Dep. at 251. The last two pages of the
letter consisted of printed-out pages from WebMD discussing the symptoms of
bipolar disorder and PTSD. Id.
Plaintiff returned to work in November 2008. Def. SUMF ¶ 58; P1. RSMF
¶ 55. On November 24, 2008 Plaintiff was interviewed by Verizon Security
investigator Christopher Heiser and Defendant Lopez. Def. SUMF ¶ 59; P1.
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RSMF ¶ 55. Plaintiff’s wife, Li Mm Cruz, was also present. Id.; P1. RSMF ¶ 56.
Ana Cardoso submitted a statement that Plaintiff began yeffing and panicking
and slammed his computer monitor on his desk. E. Lopez Decl. Exh. 6 (Docket No. 601) at 16; Def. SUMF ¶ 55. Cardoso shouted back at Plaintiff: “What is wrong with you,
you’re freaking me out.” Id. Silvia Espinosa submitted a similar statement that
Plaintiff threw his computer and called for help. Id.at 15. Colon’s notes also state that
Plaintiffs co-worker Carlos Buelvas told Colon that Plaintiff called Buelvas about the
customer’s problem and while on the call with Buelvas said “[t]his is fucking crazy,
fucking crazy.” Def. SUMF ¶ 54; E. Lopez Decl. Exh. 5 (Docket No. 60-1) at 2. Plaintiff
disputes receiving Buelvas’s statement in discovery. P1. RSMF ¶ 49.
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Plaintiff asserts that Heiser did not adequately investigate the incident because
he did not take photographs or take statements from witnesses. P1. RSMF ¶ 55.
However, the investigation notes and reports submitted in Exhs. 5 and 6 to the E.
Lopez Deci. include several witness statements and photos. See Docket No. 60-1.
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During that interview, Plaintiff stated, “I believe I lost control, no reason, loss of
control.” Id. (citing E. Lopez Decl. ¶ 14); Verizon Security Interview
Memorandum, E. Lopez Deci. Exh. 8 (Docket 60-1); J. Lopez Dep. at 253-54.
The Parties dispute what, if any, damage was done to the Verizon
computer during the incident. Defendants contend that Plaintiff admitted to
destroying his computer monitor and to yelling for assistance during the
October 8 incident. Def. SUMF ¶ 60. In his deposition, Plaintiff testified that
during the interview following the October 6, 2008 incident, he told investigator
Heiser that he destroyed the monitor. J. Lopez Dep. at 254. Now, however,
Plaintiff denies that the computer monitor was destroyed, and denies ever
admitting that it was destroyed. P1. RSMF ¶ 57.
Plaintiff was suspended without pay as of November 24, 2008, pending
the completion of Verizon’s investigation. Def. SUMF ¶ 61. After the
investigation concluded, the Plaintiff was terminated as of December 12, 2008,
for “abusive conduct and property destruction in violation of the Business Code
of Conduct.” Def. SUMF ¶ 62; see also P1. RSMF ¶ 59.
On or about June 16, 2009, Defendant Lopez received a call from a social
worker at Mt. Sinai Hospital informing her that Plaintiff had made a death
threat against Defendant Lopez. Id. ¶ 67. Defendant Lopez reported this threat
to Verizon Security. Id.; E. Lopez Deci. Exh. 14 (Docket No. 60-2). Plaintiff
asserts that Defendant Lopez misstated the facts. Although he does not directly
deny making the threat, he notes that he was hospitalized at the time and
undergoing treatment for his “disability and illness.” P1. RSMF ¶ 62.
E. Union Grievance
On December 18, 2008, Plaintiff’s union presented a grievance on his
behalf regarding his suspension and termination. Def. SUMF ¶ 63; Exh. 10
(Docket No. 60-1). The grievance was denied, as was a subsequent appeal Id.
¶f 63-64; E. Lopez Dccl. Exhs. 11, 12 (Docket No. 60-2). In a letter dated April
21, 2009, the union advised Plaintiff that, based on its review of the facts, it
had elected not to take the denial of the grievance to arbitration. Id. ¶ 65; E.
Lopez Deci. Exh. 13 (Docket No. 60-2). Plaintiff did not file a claim for breach of
the duty of fair representation against the union, calling it a “waste of my
time.” Id. ¶ 66; J. Lopez Dep. at 242.
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F. Social Security Administration Proceeding
Plaintiff applied for Social Security disability benefits in 2009. J. Lopez
Dep. at 250; Def. SUMF ¶ 68. His application alleged he was disabled starting
on October 6, 2008, the date of the incident. Id. ¶ 70. On May 25, 2011, the
Social Security Administration (“SSA”) granted the application, finding that that
Plaintiff had been disabled since October 6, 2008. Def. SUMF ¶ 69; SSA Notice
of Decision (Docket No. 59-1) at 6. The AU gave full credit to the testimony of a
vocational expert, finding:
[G]iven the claimant’s concentration deficit and his need for
frequent absences from work as found in this decision, there would
be no jobs in the regional or national economies that he would be
capable of performing.
(Docket No. 59-1 at 5).
The AU recommended a continuing disability review in 36 months,
noting that medical improvement could be expected with appropriate
treatment. Id. The AU noted that Plaintiff “was not able to respond
appropriately to others in a work environment that requires even limited
interaction with supervisors and co-workers” and also that, at the time of the
determination, Plaintiff was “unable to tolerate any interaction with the public.”
Id. at 11.
Plaintiff began receiving $1,500 per month in Social Security Disability
payments. Def. SUMF ¶ 74; J. Lopez Dep. at 248-49. Plaintiff also received
$450 per month in Social Security disability benefits for each of his two
daughters. Id. J. Lopez Dep. at 249.
II.
DISCUSSION
The Defendants, Verizon and Estella Lopez, move for summary judgment
on all counts of the Complaint. (Docket No. 56). For the reasons discussed
below, the Defendants’ motion will be granted.
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) provides that summary judgment
should be granted “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248; Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000). In
11
deciding a motion for summary judgment, a court must construe all facts and
inferences in the light most favorable to the nonmoving party. See Boyle v.
County of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998) (citing
Peters v. Delaware River Port Auth. of Pa. & N.J., 16 F.3d 1346, 1349 (3d Cir.
1994)). The moving party bears the burden of establishing that no genuine
issue of material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322—
23 (1986). “[W]ith respect to an issue on which the nonmoving party bears the
burden of proof.
the burden on the moving party may be discharged by
‘showing’—that is, pointing out to the district court—that there is an absence
of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325.
.
.
Once the moving party has met that threshold burden, the non-moving
party “must do more than simply show that there is some metaphysical doubt
as to material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986). The opposing party must present actual evidence that
creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at
248; see also Fed. R. Civ. p. 56(c) (setting forth types of evidence on which
nonmoving party must rely to support its assertion that genuine issues of
material fact exist). “[U]nsupported allegations
and pleadings are
insufficient to repel summary judgment.” Schoch v. First Fid. Bancorporation,
912 F.2d 654, 657 (3d Cir. 1990); see also Gleason v. Norwest Mortg., Inc., 243
F.3d 130, 138 (3d Cir. 2001) (“A nonmoving party has created a genuine issue
of material fact if it has provided sufficient evidence to allow a jury to find in its
favor at trial.”). If the nonmoving party has failed “to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.
there can be ‘no
genuine issue of material fact,’ since a complete failure of proof concerning an
essential element of the nonmoving party’s case necessarily renders all other
facts immaterial.” Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992)
(quoting Celotex, 477 U.S. at 322—23).
.
.
.
.
.
.
B. FMLA Retaliation Claims (Counts 1 and 4)
Counts 1 and 4 of the Complaint allege that the Defendants retaliated
against the Plaintiff for exercising his rights under the FMLA by failing to
reinstate him at the end of his leave and terminating his employment. Compl.
¶ 29, 47. To make out a prima facie case of retaliation under the FMLA, a
plaintiff must prove that: (1) he invoked his right to FMLA benefits; (2) he
suffered an adverse employment action; and (3) adverse employment action
was causally related to his invocation of FMLA rights. Lichtenstein v. University
12
of Pittsburgh Medical Center, 691 F.3d 294, 302 (3d Cir. 2012); Conoshenti v.
Public Serv. Elec. & Gas Co., 364 F.3d 135, 146 (3d Cir. 2004).
FMLA retaliation claims require proof of the employer’s retaliatory intent,
which courts have analyzed by looking to employment discrimination law.
Lichtenstein, 691 F.3d at 302. Claims based on circumstantial evidence are
assessed under the burden shifting framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).9 Id. The Plaintiff has the initial
burden of establishing the prima facie case. Id. To do so at the summary
judgment stage, he must point to evidence in the record sufficient to create a
genuine factual dispute about each of the three elements of the retaliation
claim. Id. (citing Erdman v. Nationwide Ins. Co., 582 F.3d 500, 508-509 (3d Cir.
2009); Conoshenti, 364 F.3d at 146). If he is able to make this showing, the
burden of production shifts to the employer to “articulate some legitimate, non
discriminatory reason” for its decision. Id. (quoting McDonnell Douglas, 411
U.S. at 802). Once the employer meets this minimal burden, the Plaintiff must
point to some direct or circumstantial evidence from which a fact finder could
disbelieve [the employer’s] articulated legitimate reasons.” Id.
“reasonably
(quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)).
...
1. Plaintiff’s prima fade case of retaliation.
Reading the record in the light most favorable to the Plaintiff, I find
sufficient (albeit minimal) evidence to support a prima facie case of retaliation.
The first prong of Plaintiff’s retaliation claim is not in dispute: following the
October 2008 incident, Plaintiff invoked his rights under the FMLA and was
placed on FMLA leave concurrent with his short-term disability leave of
absence. Def. SUMF ¶J 5 1-52. It is also not disputed that Verizon terminated
Plaintiff’s employment in December 2008. Id. ¶ 62. The dispute concerns the
third prong: whether Plaintiff’s termination was causally related to his
invocation of FMLA rights.
Plaintiff argues that there was an “agenda to find an excuse to terminate”
him and that the Defendants acted without giving due consideration to his
medical issues. Opp. (Docket No. 47) at 8-9. Plaintiff makes several arguments
in support of that claim.
In contrast, claims relying on direct evidence of retaliation use the less taxing
mixed-motive framework set forth in Price Waterhouse v. Hopkins, 490 U.S. 228, 27677 (1989).
13
First, Plaintiff suggests that Verizon believed the leave granted to him
following the October 6, 2008 incident was unwarranted, and that the
termination was connected to that belief. Opp. at 7. As evidence of this,
Plaintiff proffers that Defendant Lopez prepared an “Absence Fraud Case
Summary” which stated that Plaintiff was perpetrating a fraud and should not
have received disability or FMLA leave. Opp. at 7. This assertion, however,
mischaracterizes Defendant Lopez’s deposition testimony. She was not the
author of the relevant report; as she testified in her deposition, it was prepared
by Maria Gonzalez and submitted to Verizon’s disability vendor, Met Life. E.
Lopez Dep. at 77-80. In any event, Met Life subsequently approved the
disability leave. Id. at 80.
Second, Plaintiff suggests that the investigation led by Heiser preceding
his termination was not done in good faith because Defendant Lopez and Perla
Lederman did not give Heiser the “necessary documentation and information”
pertaining to his FMLA and disability leave. Opp. at 8. Plaintiff also asserts that
information relating to Plaintiff’s disability and the earlier incident was not
submitted by Verizon during the grievance process. Id. at 9. Plaintiff does not
specify what information should have been submitted, but argues that Verizon
had “full knowledge” that “episodes” would occur that could damage property
or upset co-workers. Opp. at 8-9. He contends that Verizon management “failed
to discuss [Plaintiff’s] medical issues and accommodation granted,” thereby
“stone wall[ing] the medical causation” for the October 2008 incident. Id.
These arguments do not tend to establish a causal connection between
Plaintiff’s FMLA leave and his termination. Plaintiff’s conclusory allegations of
potential discrimination based on his medical condition do not obviate his
burden of establishing a prima facie case of FMLA retaliation. See Allia v. Target
Corp., Civ. No. 07-4 130 (NHL), 2010 WL 1050043 at *11 (D.N.J. March 17,
2010). Plaintiff’s argument that, even before the October 2008 incident
occurred, Verizon was on notice of his medical issues, see Opp. at 9, is
something of a non sequitur. Indeed, Plaintiff acknowledged at his deposition
that he was never demoted, terminated, or otherwise disciplined after taking
multiple FMLA leaves during his employment at Verizon. See Def. SUMF ¶ 32
(quoting J. Lopez Dep. at 190). The notion that Verizon had long known about
his medical condition tends, if anything, to detract from a finding of causation
as to FMLA retaliation.
Nevertheless, the timing of the termination bears consideration. Plaintiff
returned from his FMLA leave in November 2008, at which point he was
suspended pending the resolution of Verizon’s investigation. Def. SUMF ¶11 5814
61. He was terminated on December 12, 2008. Id. ¶ 62. The mere fact that a
protected activity preceded an adverse employment action is not ordinarily
sufficient to satisfy the plaintiff’s burden of demonstrating a causal link
*10 (granting
between the two. Allia v. Target Corp., 2010 WL 1050043 at
summary judgment for defendant where plaintiff failed to show causality for
FMLA claim); Farrell v. Planters Lfesavers Co., 206 F.3d 271, 279-80 (3d Cir.
2000); Robinson v. City of Pittsburgh, 120 F.3d 1286, 1302 (3d Cir.1997)
(abrogated on other grounds).
However, as Robinson clarified, a causal link may be inferred where the
timing of the alleged retaliation is “unusually suggestive”. 120 F. 3d at 1302
(discussing split in Third Circuit cases on whether timing by itself can support
finding of causation). The evidentiary value of temporal proximity depends on
the stage of the McDonnell Douglas analysis. When, as here, the plaintiff is
attempting to satisfy his prima facie burden on summary judgment, close
temporal proximity can, by itself, support a finding of causation. See Jalil v.
Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989). At this stage, after all, the court
is only assessing whether the employer may be required to explain itself. See
also Smith v. Allen Health Sys., 302 F.3d 827, 833 (8th Cir. 2002) (citation
omitted) (stating that McDonnell Douglas “requires only a minimal showing
before requiring the employer to explain its actions”); James v. New York Racing
Ass’n, 233 F.3d 149, 153 (2d Cir. 2000) (finding that a plaintiffs burden on
presenting a prima facie case under McDonnell Douglas is “minimal”).
Plaintiff did not expressly rely on the timing of the termination in his
Opposition. Nevertheless, I see that the temporal proximity of the termination
and leave is undisputed. Therefore, viewing the facts in the light most favorable
to the non-movant Plaintiff, as I must, I will assume arguendo that the Plaintiff
has satisfied the causality prong. I note, however, that there is little else in the
record to indicate that Plaintiff’s termination was causally connected to the
October 2008 FMLA-protected leave.
2. Verizon’s legitimate, non-retaliatory reason for terminating
the Plaintiff’s employment.
The second stage of the McDonnell Douglas shifts the burden of
production to the employer to “articulate some legitimate, non-discriminatory
reason” for its decision. Lichtenstein, 691 F.3d at 302. Verizon proffers that
Plaintiff’s termination was based on his violations of its Code of Conduct. Def.
Br. (Docket No. 38) at 9. This non-retaliatory explanation for the Plaintiff’s
15
termination satisfies the Defendant’s minimal burden of production. See
Lichtenstein, 691 F.3d at 302 (stating that defendant’s burden is minimal).
The Code of Conduct prohibits violent, hostile, and abusive behavior in
the workplace, as well as the destruction of Verizon’s property and computer
systems. Def. SUMF ¶J 6-7. The Defendants argue that Verizon was “entitled to
promulgate those policies and demand adherence thereto as a condition of
continuing employment.” Def. Br. at 9. They assert that Plaintiff’s conduct on
October 6, 2008 violated the Code of Conduct and was the basis for his
termination. Id.
The Parties do not dispute that on October 6, 2008 Plaintiff stood up at
his desk while on a customer call, shouted, and slammed his computer
monitor on his desk. Def. SUMF ¶J 40 44, 53, 57, 60. Plaintiff described his
conduct as having “lost control.” J. Lopez Dep. at 195. Witness statements
from three other Verizon employees are consistent with this account, as are
photos taken of Plaintiff’s workstation. See E. Lopez Decl. Exhs. 5-6 (Docket
No. 60-1) at 2-4, 15-16. While there may be a discrepancy as to the parties’
accounts of the extent of the damage, there is no doubt as to the existence of a
substantial breach of the Code of Conduct.
—
This explanation for Plaintiff’s termination is non-retaliatory and thus
satisfies the Defendants’ burden of articulating a legitimate reason for
Plaintiff’s termination.
3. There is no evidence that the articulated reason for the
Plaintifi’s termination is pretextual.
Because the Defendants have met their burden of proffering a legitimate,
non-retaliatory reason for terminating Plaintiff’s employment, Plaintiff must
persuade the Court that the Defendants were actually motivated by a
retaliatory motive. Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994);
Lichtenstein, 691 F. 3d at 310-11. Plaintiff’s evidence rebutting the employer’s
proffered legitimate reasons, which may be direct or circumstantial, must allow
a fact finder to reasonably infer that the proffered non-discriminatory reason
was either pretextual or a post hoc fabrication. Id.
The proffered reason for Plaintiff’s termination was not a post hac
fabrication. Plaintiff does not dispute that Defendants’ proffered reason for his
termination was his alleged violation of the Code of Conduct. Further, the
record is devoid of any evidence indicating that the Defendants gave any other
reason for Plaintiff’s termination at the time of his dismissal.
16
There is also no evidence in the record showing that Verizon’s reason for
the termination was pretextual. As established above, the Defendants’ position
that Plaintiff’s conduct violated the Code of Conduct is supported by the
record.
It is also undisputed that Plaintiff was aware of his obligations under the
Code of Conduct. He had previously been suspended for 15 days after a 2006
incident in which he allegedly “became aggressive and screamed profanities at
Verizon managers.” Def. Br. at 10; Def. SUMF ¶J 15-16. At that time, Plaintiff
was warned that his conduct violated Verizon’s Business Code of Conduct and
that further violations could result in termination. Def. Br. at 10; SUMF ¶ 18.
Nor was Verizon’s decision ill-considered or precipitate. After the October 2008
incident, Verizon conducted an investigation that included interviews of the
witnesses and of Plaintiff himself. Id. ¶J 52-62.
Plaintiff criticizes certain details of the Defendants’ account, such as the
photos taken showing damage to his workstation and Defendants’ failure to
turn over hand-written notes from Investigator Heiser as part of the record of
Verizon’s investigation following the incident. See P1. RSMF ¶{ 48, 55, 5710 I
disregard these issues; to the extent they may be contested, they are not
material to my decision. In light of the other evidence in the record, a jury
could not find that the failure to include photographic documentation or
handwritten notes made the difference between a retaliatory and nonretaliatory dismissal based on the making of a FMLA claim.
Plaintiff argues that the termination was actually based on the violation
of FMLA rights “afforded to him by his employer.” Opp. at 9. However, Plaintiff
puts forth no evidence supporting that view, or evidence showing that Verizon’s
stated reason for his termination was pretextual. In fact, the record, including
Plaintiff’s deposition testimony, is replete with references to Plaintiff’s
disruptive conduct. See also Polonsky v. Verizon Commc’ns Corp., Civ. No. 094756 (FLW), 2011 WL 5869585, at *12 (D.N.J. Nov. 22, 2011) (dismissing state
law wrongful termination claim where defendant Verizon’s proffered
explanation that plaintiff’s behavior was hostile and abusive was supported by
the record).
Taking an FMLA leave of absence does not, of course, shield a plaintiff
from discipline for misconduct. See Adams v. Fayette Home Care and Hospice,
452 Fed. App’x 137, 141 (3d Cir. 2011) (affirming summary judgment in FMLA
Heiser’s notes in typed form are included as part of his report. E. Lopez Decl.
Exh. 8 (Docket No. 60-1) at 20-2 1.
10
17
claim of employee terminated upon return from FMLA leave for misconduct
occurring prior to leave); Allia, 2010 WL 1050043, at *11 (D.N.J. 2010)
(dismissing FMLA claim of employee terminated for poor performance and
insensitivity prior to FMLA absence). Moreover, Plaintiff had taken numerous
other FMLA leaves without any adverse consequences. J. Lopez Dep. at 177,
189-190. For Plaintiff to prevail, he would have to point to evidence that his
termination was not based on his misconduct, or that it was based on his
invocation of his rights under FMLA. Such evidence is lacking.
As noted above, virtually the only evidence suggesting a retaliatory
reason for termination is the temporal proximity between Plaintiff’s leave and
his termination. While that was sufficient to meet Plaintiff’s minimal initial
burden, it is not enough to establish pretext or demonstrate retaliatory
motivation. See Farrell, 206 F.3d at 279-80 (cautioning that weight given to
temporal proximity depends on facts of the case and context in which issue
arises). Here, there is no additional evidence—direct or circumstantial—that
bolsters the weak inference from temporal proximity. The evidence of record
consistently supports the Defendants’ proffered explanation. It provides no
support for the view that the Defendants inexplicably, for reasons unrelated to
Plaintiff’s misconduct, decided to treat this FMLA leave differently from all of
the ones that preceded it.’
In sum, the facts here do not give rise to a genuine factual dispute
regarding the reason for Plaintiff’s termination. Although Plaintiff argues that
he was terminated for unlawful reasons, his conclusory allegations do not
create a jury issue. Plaintiff had knowledge of his obligations under the Code of
Conduct and substantially admitted to the conduct held to be in violation of it.
Simply put, there is not sufficient evidence in the record to support an
alternate explanation for his termination. Indeed, Plaintiff’s asserted
explanation for his termination is blatantly contradicted by the record.
“Where the record taken as a whole could not lead a rational trier of fact
to find for the nonmoving party, there is no ‘genuine issue for trial.” Matsushita
Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Scott v.
To some degree, Plaintiff’s arguments seem to suggest that his underlying
medical condition (as opposed to his invocation of his rights under the FMLA) was the
true basis for his termination. See Opp. at 8-9. This argument is better placed in
support of his LAD claim, and it is discussed there. See Section C, infra.
11
18
Harris, 550 U.S. 372, 380 (2007) (quoting same). The existence of some alleged
factual dispute between the Parties does not defeat the Defendants’ otherwise
properly supported motion for summary judgment. Scott, 550 U.s. at 380. The
minor factual disputes here are not material to the issue of FMLA retaliation.
C. LAD Claims (Counts 2 and 3)
Plaintiff has alleged two counts of disability discrimination in violation of
the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1: a failure to
accommodate claim (Count 2) and a hostile work environment claim (Count 3).
Compi. ¶IJ 33-45.
1. Plaintiff has failed to show a prima fade case of disability
discrimination under the LAD.
Discrimination claims pursuant to the LAD, like FMLA retaliation claims,
follow the McDonnell Douglas burden-shifting paradigm. Victor v. State, 203
N.J. 383, 4 A.3d 126, 140-4 1 (2010). To state a prima facie case of disability
discrimination under the LAD, Plaintiff must show that (1) he qualified as an
individual with a disability, or is perceived as having a disability, as defined by
statute; (2) he is qualified to perform the essential functions of the job, or was
performing those essential functions, either with or without a reasonable
accommodation; (3) he experienced an adverse employment action; and (4) the
employer sought another to perform the same work after he was removed from
the position. See Victor, 203 N.J. at 409-410.
The only disputed prong of the LAD claim is whether Plaintiff was
qualified to perform the essential functions of his job with or without a
reasonable accommodation. See Def. Br. at 12-13.
The Defendants argue that Plaintiff cannot state a claim for disability
discrimination or, in the alternative, that such a claim is judicially estopped by
the SSA’s finding that Plaintiff was disabled as of October 6, 2008. DeL Br. at
12-13. A failure of proof would be analyzed under the usual summary
judgment framework. The judicial estoppel aspect, however, requires some
explanation.
An application for Social Security Disability Insurance (“SSDI”) benefits
(particularly a successful one) may preclude a cognizable disability
ys.
discrimination claim. See Cleveland v. Policy Management 5 Corp., 526 U.S.
795, 119 S.Ct. 1597 (1999) (considering ADA claim). To survive a motion for
summary judgment, however, the plaintiff must explain why the prior SSDI
19
application or award is consistent with his current claim that he could
“perform the essential functions” of his previous job. Id. at 798.
Those two types of claims may coexist, for example, where a disabled
person cannot perform the “essential functions” of his job, but could do so with
a reasonable accommodation. Id. at 803. The SSA determination for SSDI
benefits does not take into account the possibility of a reasonable
accommodation. Id. Therefore a disability discrimination suit claiming that the
plaintiff can perform his job with the accommodation may be consistent with
an SSDI claim that the plaintiff could not perform his job (or other jobs in the
national economy) without it. Id.
a. Failure to Accommodate (Count 2)
This case does not resemble the typical failure to accommodate claim,
which may involve a request to be transferred to a position with different
duties. Plaintiff requested one type of accommodation here: to be transferred to
another chain of command under Julio Cirilo. See Opp. at 15; Def. SUMF
¶1{
38-39.
That accommodation was granted in 2007; Plaintiff was transferred to a
group supervised by Cirilo. Def. SUMF ¶ 34-35; J. Lopez Dep. at 183-84, 24344. In 2008, however, Cirilo himself was transferred to a different position. Id.
¶ 38; E. Lopez Dep. at 58. Plaintiff then requested again to be reassigned to
Cirilo’s supervisory group. Id. ¶ 39; E. Lopez Deci.
¶ 10. After consulting with
Verizon Labor Relations, Defendant Lopez advised Plaintiff that Cirilo no longer
occupied that kind of supervisory position. Id. Cirilo’s new staff job did not
have managers or associates in its chain of command. E. Lopez Deci.
¶ 9. In
particular, Cirilo did not have a Bilingual Sales and Service team reporting to
him. Def. SUMF ¶ 39; E. Lopez Deci. ¶ 10. The requested transfer was not
possible.
Verizon’s denial of Plaintiff’s second reassignment request, after granting
the first, does not suggest a cognizable claim that Plaintiff was denied a
reasonable accommodation. While Defendants had a duty under the LAD to
offer a reasonable accommodation, this duty does not “cloak the disable
d
employee with the right to demand a particular accommodation.” Victor, 203
N.J. 383, 4 A.3d at 149; see also Gaul v. Lucent Tech. Inc., 134 F.3d 576, 581
(3d Cir. 1998) (affirming summary judgment on ADA claim in favor of employer
where proposed accommodation to reduce exposure to coworkers causin
g
plaintiff “prolonged and inordinate stress” would impose impractical burden on
employer). The evidence is undisputed that the requested reassignment to
20
Cirilo was not possible or reasonable; Cirilo himself no longer occupied an
appropriate supervisory position. Plaintiff did not request any other
accommodation. Even now, he does not suggest any other accommodation.
On that score, the record of Plaintiff’s SSDI proceeding is revealing. If an
applicant cannot be accommodated in the particular position he occupied, he
must demonstrate that there was a vacant, funded position for which he was
qualified and to which he could have been transferred. Donahue v.
Consolidated Rail Corp., 224 F.3d 226, 229-230 (3d Cir. 2000) (Rehabilitation
Act claim); Castellani v. Bucks County Mun., 351 Fed. App’x 774, 777 (3d Cir.,
Nov. 10, 2009) (ADA claim) (citing Williams v. Philadelphia Housing Auth. Police
Dep’t., 380 F.3d 751, 770 (3d Cir. 2004). In Plaintiff’s case, the AU found,
such a transfer was unlikely if not impossible. Plaintiff “was not able to
respond appropriately to others in a work environment that requires even
limited interaction with supervisors and co-workers” and “is unable to tolerate
any interaction with the public.” Id. Def. SUMF ¶ 72. The AU determined that
Plaintiff would have been unable to return to his position at Verizon as of
October 6, 2008, because of the “skill level it required.” Id. ¶ 73. In fact,
because of Plaintiff’s concentration deficit and need for frequent work
absences, “there would be no jobs in the regional or national economies that he
would be capable of performing.” Id. ¶ 71.
The AU, to be sure, was not explicitly addressing the possibility of a
reasonable accommodation. But this is not an equivocal finding of disability, or
one that suggests the possibility of a work-around. I agree with the Defendants
that the AU’s finding strongly suggests that the Plaintiff could not have been
accommodated. If there is no job, anywhere, that the worker is capable of
performing, then it would be difficult to hold the company liable for failing to
design one for him. See Mengine v. Runyon, 114 F.3d 415, 4 17-20 (3d Cir.
1997). In order to so find, I would have to identify an effective accommodation
that would be reasonable, yet result in a position that does not correspond to
any position now existing in our economy.
Assuming there is such a case, I have not seen any evidence that this is
it. Plaintiff has not identified a viable alternative position, or a viable alteration
to the one he occupied (other than reassignment to Cirilo). I see no plausible
showing that Plaintiff’s position, or one reasonably available, could be tailored
to avoid the effects of his PTSD and bipolar disorder.
Accordingly, Plaintiff has failed to proffer an adequate explanation of how
he was totally disabled as of October 6, 2008, and yet able to perform the
21
essential functions of his job, or an alternative vacant job. See Cleveland, 526
U.S. at 806; Castellani, 351 Fed. App’x at 777. He has not drawn an adequate
distinction between his particular failure-to-accommodate claim and the SSA
AU’s finding that he is completely disabled. Therefore, there is no triable issue
of fact regarding Plaintiff’s reasonable accommodation claim. Summary
judgment must be granted in favor of the Defendants on this count.
b. Hostile Work Environment (Count 3)
To the extent that Plaintiff alleges a separate claim of LAD discrimination
on the basis of a hostile work environment, that claim also fails. To prove a
claim for a hostile work environment, Plaintiff must show that (1) he is in a
protected class; (2) he was subjected to conduct that would not have occurred
but for that protected status; and (3) that it was severe or pervasive enough to
alter the conditions of employment. Victor, 4 A.3d at 141. Plaintiff has not
made a facial showing that the second and third elements are met.
Plaintiff’s allegations of discriminatory conduct fall short. Plaintiff alleges
that Defendant Lopez would “openly taunt and provoke” him with statements
such as, “We are not going to have any problems, right?” Compl.
¶J 10-15.
Plaintiff also alleges that he was “in essence forced to resign as [union] Steward
in order to avoid contact with Estella Lopez...” Id. ¶ 11. When Plaintiff returned
to Defendant Lopez’s group in 2008 she “continued to harass and ride Mr.
Lopez, fully aware of his limitations and disabilities.” Id.
¶ 14. Plaintiff now
argues that it is “apparent” that Defendant Lopez was “out to hurt this
employee to ensure that his employment would be terminated.” Opp. at 18.
Defendants counter that Plaintiff admitted in his deposition that his
interactions with Lopez were “uneventful, nonremarkable.” Def. Br. at 20 (citing
Def. SUMF ¶ 13). They also point to a lack of evidence that Defendant Lopez
was aware of Plaintiff’s disabilities. Id. at 21. The record is not undisputed as to
the latter issue; Plaintiff alleges that his disabilities were generally known; his
letter to fellow employees after the October 2008 incident says as much; and
one supervisor, Pino, allegedly stated that he should be seeing a doctor. (See
pp. 7-8, supra.). The record is bereft, however, of any indication that Defendant
Lopez, or anyone else at Verizon, engaged in conduct based on Plaintiff’s
disabilities that altered the conditions of his employment.
Plaintiff does not identify any conduct or statements made by Defendant
Lopez indicating that her treatment of him was premised on, or at all related to,
his disability. During his deposition, Plaintiff stated that he had never directly
discussed his medical conditions with Defendant Lopez. J. Lopez Dep. at 136.
22
Further, when asked about the source of his discord with Defendant Lopez, he
identified the issues as relating to time off, scheduling, and fire safety. See id.
at 238-39. These issues all seem to relate generally to conditions of
employment, not to Plaintiff personally. Fairly emblematic of these is Plaintiff’s
statement that Dalia Perez told representatives generally (not Plaintiff
personally) that they should not “make a habit” of requesting time off. Id. at
237. When Plaintiff objected, Perez replied that she would not apologize unless
Defendant Lopez directed her to do so. Id. At best, this suggests that, in some
very general way, Defendant Lopez was the ultimate source of some of
Plaintiff’s on-the-job dissatisfaction.
In assessing a hostile environment claim, the Court must consider the
cumulative effect of the incidents identified by the Plaintiff. Lehmann v. Toys R
Us, Inc., 132 N.J. 587, 626 A.2d 445, 455 (1993). Even taking all of these
incidents together, however, no reasonable fact finder could find that this
conduct related to Plaintiff’s medical condition or that it impermissibly altered
the conditions of his employment for the worse. Plaintiff’s issues or conflicts
with Defendant Lopez are run-of-the-mill personality and administrative
conflicts. True, Plaintiff’s psychological condition might have made it more
difficult for him to negotiate these routine workplace frustrations. That does
not equate to Defendants’ creation of a hostile environment based on his
disability. Plaintiff has not met his burden of establishing a prima facie case of
LAD discrimination.
2. There is no evidence showing that Verizon’s articulated
reason for terminating the Plaintiff is pretext for
discrimination.
In addition, and in the alternative, the hostile environment claim must be
denied because there is no genuine factual issue as to whether Defendants’
proffered explanation for Plaintiff’s termination was a pretext. This “pretext”
issue essentially duplicates that under the FMLA, discussed above. See Section
II.B.3, supra.
The LAD prohibits adverse action based on an employee’s disability, but
does not “prevent adverse employment treatment premised upon the employee’s
conduct.” Barbera v. DiMartino, 702 A.2d 1370, 1379 (N.J. Super. App. Div.
1997). In Barbera, the plaintiff was terminated after he assaulted his
supervisor during a “temporary psychotic episode.” Id. at 1371. The Court
affirmed the trial jury’s finding that the termination did not violate the LAD,
applying the federal majority view that disability discrimination law is not
23
intended to prevent discrimination “upon egregious or criminal conduct even if
such conduct results from handicap or disability.” Id. at 138 1-82. See also
Iwanejko v. Cohen & Grigsby, 249 Fed. App’x 938, 943 (3d Cir. Oct. 11, 2007)
(affirming summary judgment on ADA claim where employer terminated an
employee who began to shout and use profanities during an acute psychotic
episode), cert. denied, 555 U.S. 829 (2008).12
Thus Plaintiff’s disability does not shield him from dismissal for reasons
related to his conduct. Plaintiff has failed to point to any support in the record
for his position that the Defendants’ proffered explanation was pretextual or
fabricated. For the reasons stated above, there is no material conflict in the
evidence: Plaintiff was dismissed for a clear violation of the employee Code of
Conduct.
In sum, there is no genuine issue of material fact regarding Plaintiff’s
LAD claims. Plaintiff has failed to show a genuine factual dispute regarding
both his reasonable accommodation and hostile work environment claims.
3. Aiding and Abetting Liability of Estella Lopez (Counts II and
III)
Even if Plaintiff had a meritorious LAD claim against his employer
Verizon, liability would not extend personally to Defendant Lopez. Under the
LAD, a supervisor does not constitute an employer. Cicchetti v. Morris Cnty
Sheriff’s Office, 947 A.2d 626, 645 (N.J. 2008). Individual liability can arise
only through “the aiding and abetting” mechanism of the statute. Id. To prove
an employee liable as an aider or abettor, Plaintiff must show (1) the party
whom the defendant aided performed a wrongful act causing an injury; (2) the
defendant was generally aware of his role as part of an overall illegal or tortious
activity at the time that he provided the assistance; and (3) the defendant
knowingly and substantially assisted the principal violation. Id.; Hurley v.
12
Additionally, the LAD recognizes that “certain handicapped persons could be
legitimately precluded from performing certain tasks due to their conditions.” Viscik v.
Fowler Equip. Co., 800 A.2d 826, 833, 173 N.J. 1(2002) (citing Anderson v. Exxon Co.,
89 N.J. 483, 493 (1982)). Thus, the LAD’s protections do not apply if “the nature and
extent of the handicap reasonably precludes the performance of the particular
employment.” Id. (quoting N.J.S.A. 10:5-4.1); N.J.S.A. 10:5-2.1 (the LAD does not
“prevent the termination.
of any person who in the opinion of the employer,
reasonably arrived at, is unable to perform adequately the duties of employment, nor
to preclude discrimination among individuals on the basis of competence,
performance, conduct, or any other reasonable standards.”).
.
.
24
Atlantic City Police Dep’t, 174 F.3d 95, 127 (3d Cir. 1999) (defining aiding and
abetting liability).
The liability of Defendant Lopez, then, depends on that of Verizon.
Because I find that Plaintiff has failed to carry the burden of persuasion under
McDonnell Douglas showing that Verizon acted unlawfully, an aiding and
abetting claim against Defendant Lopez cannot survive, either.
D. Contract Claims (Counts 5, 6, 7)
Plaintiff’s remaining claims are contract based: breach of duty (Count 5);
breach of contract (Count 6); and breach of the implied covenant of good faith
and fair dealing (Count 7). Compi. ¶{ 50-67. Plaintiff did not have an
employment contract. Accordingly, these claims are based on alleged
contractual duties in Verizon’s union agreements and/or Code of Conduct. See
Compi. ¶ 52, 58, 63.; Opp. at 20, 22. These claims are not supported by the
record and fail as a matter of law.
1. Code of Conduct
First, Plaintiff cannot premise his contract claims on the Code of
Conduct. In order to state a claim based on an employment manual or widely
distributed policy, the Plaintiff must point to a provision that contains “an
express or implied promise concerning the terms and conditions of
employment.” Witowski v. Thomas J. Lipton, 136 N.J. 385, 643 A.2d 546, 550
(1994) (citations omitted). An implied contract can only rest on the reasonable
expectations of employees. Id. (citing Woolley v. Hoffman LaRoche, 99 N.J. 284,
491 A.2d 1257, modffied, 101 N.J. 10, 499 A.2d 515 (1985)). Factors affecting
reasonable expectations include the comprehensiveness of the termination
policy and the context of the manual’s preparation and distribution. Id.
In any case, however, an implied contract based on an employment
manual may be negated by the inclusion of a “clear and prominent” disclaimer.
Id. at 554 (citing Woolley, 99 N.J. at 285).; see also Polonsky, 2011 WL
5869585 at *9; Nicosia v. Wakefem Food Corp., 136 N.J. 401, 643 A.2d 554,
559-60 (1994). An effective disclaimer must be “expressed in language such
that no one could reasonably have thought [the manual] was intended to create
legally binding obligations.” Nicosia, 643 A.2d at 560 (internal quotation
omitted).
Verizon’s Code of Conduct explicitly states that it is “not an employment
contract” and that it does not “give [employee] rights of any kind.” Code of
25
Conduct (Docket No. 76) at 10; Def. SUMF ¶ 3. The disclaimer is located in the
introductory section of the Code of Conduct under the heading “Legal Notice.”
Id. This district court, in fact, has held that the Verizon Code of Conduct’s
disclaimer is adequately clear and prominent. See Polonsky, 2011 WL 5869585
at *9 (granting summary judgment against plaintiff claims brought on basis of
Verizon’s Code of Conduct).
Plaintiff argues that the Verizon manual cited in Polonsky may or may
not be the same manual at issue here. Opp. at 20. He also points to the size of
the font and exclusion from the table of contents as further arguments against
the sufficiency of the disclaimer. Id. at 20-21. The cited language in the Code of
Conduct’s disclaimer closely resembles that analyzed by the Polonsky Court.
Compare Code of Conduct (Docket No. 76) at 10; 2011 WL 5869585 at *9•13 Ji
light of its language explicitly disclaiming any legal rights, a reasonable
employee could not think that the manual was intended to create a legally
binding obligation. I have inspected the Code of Conduct and find the
presentation of the disclaimer to be sufficiently conspicuous and clear as a
matter of law.
The disclaimer, then, is dispositive. The Code of Conduct is not an
employment contract and cannot furnish the basis for a contract claim.
2. Union Agreements
To the extent that Plaintiff’s contract claims are based on a breach of
union agreements, they also fail as a matter of law. First, Plaintiff has not
alleged that Verizon breached any provision of a Collective Bargaining
Agreement. Secondly, any such claim would be preempted by Section 301 of
the Labor Management Relations Act (“LMRA”). 29 U.S.C. § 185(a). Section 301
completely pre-empts state law claims created by or dependent upon a
collective bargaining agreement. Lingle v. Norge Div. of Magic Chef, Inc., 486
U.S. 399, 405-06 (1988); Wilkes-Barr Publishing Co. v. Newspaper Guild of
Wilkes-Barr, 647 F.2d 372, 380 (3d Cir. 1981), cert denied, 454 U.S. 1143
(1982); Pagano v. Bell Atlantic-New Jersey, 988 F. Supp. 841, 846-47 (D.N.J.
1997). A plaintiff’s claim will be pre-empted unless he simultaneously brings a
claim against the union for breach of a duty of fair representation, or proves
such a breach. DelCostello v. Int’l Brotherhood of Teamsters, 462 U.S. 151, 164
(1983) (quoting United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 66-67 (1981)
One distinction in the disclaimers is that the waiver’s language here regarding
at-will employment exempts those employees governed by a collective bargaining
agreement. Code of Conduct at 10. That distinction is not material here.
13
26
(Stewart, J. concurring in the judgment); Felice v. Sever, 985 F.2d 1221, 1226
(3d Cir. 1993).
Plaintiff asserts no claim against the union for breach of the duty of fair
representation. Plaintiff acknowledged in his deposition that he did not take
any action against the union. Def. SUMF ¶ 21. Plaintiff’s contract claims, to the
extent they may purport to rest on union agreements, are preempted as a
matter of law.
Summary judgment is therefore granted to the Defendants on the
contract claims, Counts 5, 6, and 7 of the Complaint.
III.
CONCLUSION
The Defendants have carried their burden of showing that no genuine
issue of material fact exists for each of the Counts in the Amended Complaint.
In response, Plaintiff has failed to put forth any actual evidence that any triable
issue of material fact remains. Accordingly, summary judgment will be
GRANTED for the Defendants on all Counts.
An Order will be entered in accordance with this Opinion.
Dated: February 4, 2014
(
H n. Kevin McNulty
United States District
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