VCOM INTERNATIONAL MULTI-MEDIA CORP. et al v. GLUCK et al

Filing 75

OPINION. Signed by Judge John Michael Vazquez on 03/27/2017. (ek)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

VCOM INTERNATIONAL MULTI-MEDIA
CORP. U/b/a PROJECTORSCREEN.COM,
PROJECTORSCREENSTORE.COM,
ALLTECSTORES.COM, and ALLTEC
STORES,

Civil Action No. 14-3398
OPINION

Plaintiff,
V.

BRIAN ROBERT GLUCK a/k/a BRIAN
GLUCK, PROJECTORSCREEN.COM,
OPTIMIZING, LLC d/b/a,
PROJECTORSCREENCO.COM, JOHN DOES
1-10, and ABC COMPANIES 1-10,

Defendants.

John Michael Vazguei, U.S.D.J.
I.

INTRODUCTION
This matter comes before the Court on Plaintiff Vcom International Multi-Media Corp.’s

(“Vcom”) motion for summary judgment as to Defendant Brian Gluck’s counterclaims. D.E. 33.
Gluck’s counterclaims concern allegations of adverse employment action due to his rheumatoid
arthritis. The Court considered the written submissions of the parties and considered the motion
without oral argument pursuant to Federal Rule of Civil Procedure 78(b) and Local Civil Rule
78.1(b). For the reasons that follow, Vcom’s motion is granted.
II.

FACTS AND PROCEDURAL HISTORY

The facts of this matter are derived from the record. They are presented in the light most
favorable to the non-moving party, Defendant. See Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014)
(noting that in motion for summary judgment, “a court must view the evidence in the light most
favorable to the opposing party” (internal quotation marks omitted)). However, as to Gluck’s
counterstatement of material facts, any paragraphs which do not cite to the record will not be
considered as creating a genuine issue of material fact.1
Vcom is a multi-divisional company specializing in the manufacturing and distribution of
technology products and services for schools, churches, government agencies, industry, and
general consumers. Second Amended Complaint (“Compl.”)

¶ 3.

Vcom sells popular brands of

electronics, including its own brands, through catalogues on the internet. Id.

¶ 4.

Vcorn operates

a group of specialty websites that sell projector screens, white boards, furniture, headphones, and
other popular specialty technology products through one if its divisions known as “Alltec.” Id.
One

of the

website

domains

maintained by Vcom under

its

Alltec Division is

proj ectorscreenstore.com. Id.

In Gluck’s counterstatement of material facts, many paragraphs fail to include citations to the
record when denying paragraphs of Vcom’s statement of material facts. Pursuant to Local Rule
of Civil Procedure 56.1, the opponent of a summary judgment motion shall furnish a responsive
statement of material facts addressing whether the opponent agrees or disagrees with each
paragraph of the movant’s statement of material facts. When addressing any facts in disagreement,
the opponent is required to provide citations “to the affidavits and other documents submitted in
connection with the motion.” L. Civ. R. 56.1. Failure to provide citations to the record results in
those facts being deemed undisputed for purposes of the summary judgment motion. Gaviria e.
Colitmbtts Bakery, Inc., 11-6999, 2013 WL 6008495, at *1 n.l (D.N.J. Nov. 12, 2013) (“As
Defendants have failed to provide such citations to the record in support of their disagreement,
many of Plaintiffs’ facts are deemed undisputed for purposes of this summary judgment motion.”);
Friedman v. Bank ofAm., NA., No. 09—2214,2012 WL 1019220, at *6 n.2 (D.N.J. Mar. 26, 2012)
(“[Tjhe court will consider any statement of fact which was not denied by the Plaintiffs with a
citation to the record as undisputed for the purposes of this motion for summary judgment.”).
Accordingly, those paragraphs in Gluck’s counterstatement of material facts that lack citations to
the record will not create a genuine issue of material fact for purposes of this motion.
2

Gluck was hired in May 2005 by Vcom as an at-will employee with a starting salary of
$35,000. Certification of David M. Walsh (“Walsh Cert.”), Ex. E (“Gluck Dep. Day 2”) at 47:1748:8. At all relevant times during Gluck’s employment, he reported to Sheldon Goldstein, the
President and part-owner of Vcom. Id. at 55:7-22; Walsh Cert. Ex. F. (“Goldstein Dep.”) at 6:17. Throughout Gluck’s employment with Vcom, Goldstein provided Gluck only with positive
performance reviews and Gluck received multiple substantial increases in his salary. Gluck Dep.
Day 2 at 55:23 to 56:18; Walsh Cert., Ex. D, (“Gluck Dep. Day 1”) at 125:5 to 129:10. During
Gluck’s employment with Vcorn he also had his own business as an independent consultant,
although the record is not clear exactly what his business consisted of or how often Gluck worked,
on average, as a consultant.
According to Gluck, Vcom found out sometime in 2006 that he had a medical condition
related to his wrists. Gluck Dep. Day 2 at 176:23 to 178:17. On or about April 4, 2012, Gluck
was diagnosed with rheumatoid arthritis. Declaration of Brian Gluck (“Gluck Dec.”) ¶ 4 (D.E. 531), Ex. A.

Gluck’s physician wrote a prescription that Gluck should be excused from work for

four weeks. Id. According to Gluck, he provided the note to Goldstein and “explained the
particulars of the condition,” but Goldstein responded that he was not going to put the note in
Gluck’s personnel file because it could be detrimental to Gluck’s career. Id.

¶ 5. Nonetheless,

Goldstein offered, and Gluck accepted, a reduced four-day work week and the ability to work from
home.2 Id. ¶6.

2

The record is not clear as to the limitations or terms, if any, of Gluck’s ability to work from home.
In his declaration, Gluck provides a citation to “time and attendance records from April until June
2012” of “his revised schedule and work from home [schedule].” Gluck Dec. ¶ 6, Ex. B. The
material cited, however, does not contain Gluck’s time and attendance records. Instead, the
documents cited are 2013 emails between Vcom’s human resources employees indicating that
Gluck worked 11.5 days from home between January 1,2012 through May 31, 2012. Id.
3

Sometime in mid-2012, Vcom became concerned that its Alitec Division was financially
underperforming and began considering whether it should sell or downsize the division. Goldstein
Dep. at 97:21 to 99:20; Walsh Cert. Ex. G, Deposition of Randall Cole (“Cole Dep”) (D.E. 33-11)
at 16:2 to 17:25; Certification of Sheldon Goldstein (“Goldstein Cert.”)

¶ 10-11 (D.E. 3).

According to Goldstein, Gluck informed Goldstein that he believed Alltec and Vcom were not a
good fit together but that Alltec could be very successful under different ownership. Goldstein
Dep. 98:10-15; Goldstein Cert.

¶ 12. Vcom decided that it would first

try to sell Alltec, and if

unsuccessful, it would begin downsizing the division. Goldstein Dep. at 97:21 to 98:14. To assist
with the prospective sale, Vcom hired an investment banker, Sonenshine Partners, at the cost of
$40,000. Goldstein Cert.

¶ 14.

Goldstein asked Gluck to head the attempted sale of Alitec. Goldstein Cert.

¶ 13. In May

2012, Goldstein and Gluck entered into negotiations through email regarding Gluck’s salary and
work schedule if he were to take the position of “Managing Director of Ailtec
Stores/Headphones.com.” Walsh Cert., Ex. M. Gluck was concerned that if he took the position
as Managing Director of Alitec and the division was subsequently sold, he would have no
assurances that the new owner of Ailtec would continue to employ him. Goldstein Cert.

¶ 15.

During their negotiations, Gluck, who was earning $100,000 at the time, represented that he should
receive a salary increase because he claimed that was able to make $200,000 annually working 40
hours per week if he were to engage solely in his independent consulting business. Walsh Cert.
Ex. M.
On June 4, 2012, Vcom and Gluck entered into a written agreement where Vcom agreed
to reduce Gluck’s work week and increase his salary. Walsh Cert., Ex. N. Gluck’s salary was
increased to $160,000 annually and he was not permitted to work more than three days per week

4

(21.75 hours) without Vcom’s prior authorization. Id. Gluck’s increase in salary combined with
the reduction in number of days worked resulted in Gluck’s prorated salary being the same as his
prior earnings had he been working full time. Id. Goldstein stated that he understood that Gluck
would use the other two days seeking possible alternate employment if Alitec was sold and
working in his (Gluck’s) consulting business. Id.; Goldstein Cert.

¶

17. Notably, nowhere in the

email negotiations or in the written employment agreement3 is there any indication that Gluck’s
reduced workweek was a result of his rheumatoid arthritis. Additionally, the email negotiations
and employment agreement are silent as to whether Gluck was permitted to work from home
during the days he was working for Vcom.
By the end of 2012, Vcom had not found a viable purchaser for Alitec and Gluck had made
only one presentation to a potential buyer. Gluck Dep. Day 2 at 83:11 to 85:10; Walsh Cert. Ex.
L; Goldstein Cert.

¶

19. As a result, Vcorn’s Board of Directors began considering selling the

Alltec Division directly to Gluck. Id. In January 2013, Gluck offered to purchase Ailtec for
$650,000. Gluck did not have sufficient funds to pay the full amount, so he would have to raise
$245,000 by offering preferred stock of Alltec to outside investors. Gluck Dec.
does not indicate that Gluck raised the additional capital.

¶

13. The record

Gluck’s offer of $650,000 was

significantly less than $1.2 million that Vcom was seeking for Ailtec. Id.

¶

10.

By April 2013, Vcom realized that it would not be able to sell Alltec to a viable purchaser.
Id.

Without a legitimate purchaser, Vcom decided to make personnel adjustments to Alltec.

During an April 12, 2013 Board meeting, Alltec concluded that “[a]ction will be taken involving

The employment agreement stated that Gluck would remain an at-will employee of Vcom that
could be terminated “at any time and for any or no reason.” Walsh Cert. Ex. N.
5

the downsizing of Brian Gluck and the restructuring of his group.” Id. It was at this meeting that
Goldstein told the Board that he planned to terminate Gluck. Gluck Dec.

¶ 13.

At some point in early 2013, Vcorn learned about a competing website to its
projectorscreenstores.corn website. Goldstein Cert. ¶23; Cole Dep. 6$:17 to 69:7. The competing
website was operating as projectorscreen.com. The competing website had a similar appearance
and offered the same products as Vcom’s projectorscreenstores.com. Goldstein Cert.

¶ 23. In

April 2013, Vcorn’s Vice President of finance, Randall Cole, asked Gluck if he was familiar with
the competing website. Cole Dep. 106:20 to 107:24; Goldstein Cert.

¶ 26. Gluck responded that

he was not aware of projectorscreen.corn and that he would look into it and get back to Cole,
which, according to Cole, Gluck never did. Cole Dep. 106:20 to 107:24. Within a day or two of
Cole asking Gluck about projectorscreen.com, the website changed to a blog about projector
screens. Goldstein Cert.
offices.4 Id.

¶ 27. Shortly thereafter, Gluck ceased reporting to work at Vcom’s

¶ 30.

On April 15, 2013, Gluck activated his “out of office” automatic reply, which indicated he
would be out for the next two business days. Walsh Cert. Ex. 0. On April 17, 2013, Gluck lodged
a harassment complaint by email to Ellen Hart, Vcom’s Human Resources Administrator, against
a co-worker related to an anonymous posting Gluck received on his personal website,
Briangluck.com, which read “You F#ck’n suck you no good rat. Karma will get you.” Id.;
Goldstein Cert.

¶ 31. In his April 17 email, Gluck stated that because he was concerned for his

own safety, he was going to work from home “[u]ntil Vcom has demonstrated that they are taking
this incident seriously, and that there is action being taken with an acceptable resolution in sight.”

Vcom eventually learned that Gluck had created and operated the competing projectorscreen.com
website, which is the subject matter of Vcom’s complaint against Gluck. D.E. 13; Cole Dep. at
68:17 to 69:7.
6

Walsh Cert. Ex. 0. On or about April 22, 2013, Gluck began a two-week vacation. Id.; Goldstein
Cert.

¶ 32.

On May 6,2013, the day before Gluck was scheduled to return from vacation, he sent

an email stating that he was “having [his] kitchen redone” that week, that he was going to work
from home, and that he would be back in the office the following Tuesday (May 14, 2013). Walsh
Cert. Ex. 0; Goldstein Cert.

¶ 33.

On May 14, and for half a day on May 15, Gluck returned to

the office.
On May 15, Goldstein emailed Gluck and stated that Gluck was required to be in the office
the following week on May 21, 22, and 23, 2013 for his full three-day schedule. Walsh Cert., Ex.
0. Vcom had prepared a termination letter on May 17, 2013 and planned to provide it to Gluck
the following week when he was in the office. Walsh Cert. Ex.

Q;

Goldstein Cert.

¶ 34.

On May

20, Gluck emailed Goldstein stating that he was changing his work schedule to May 22, 23, and
24. Walsh Cert. Ex. 0. Then, on May 22, Gluck took the day off Id. On the morning of May
23, 2013, Gluck left a voicemail message for Human Resources Administrator Hart advising that
he needed to schedule a doctor’s appointment related to his rheumatoid arthritis. Wash Cert. Ex.
H, Deposition of Ellen Hart (“Hart Dep.”)

¶

12:12 to 13:6. Later on May 23, 2013, Gluck called

Hart and informed her that he possessed a doctor’s note indicating that he could not work for the

next two months. Id. Gluck also emailed Goldstein advising that “[a]s Ellen [Hart] likely told
you, my doctor has prescribed that I take a 2 month leave of absence from work.” Walsh Cert.,
Ex. 0; Goldstein Cert.

¶ 36.

That same day, around 3:30

p.m.,

Vcom sent an email to Gluck granting his request for a

leave of absence pursuant to the Family and Medical Leave Act (“fMLA”). Goldstein Cert.

¶ 38;

Gluck Dec. ¶ 1$. Vcom granted Gluck’s request even though he never submitted the doctor’s note.
Gluck Dep. Day 2 at 152:11 to 153:11. According to Gluck, he was “immediately disconnected

7

from [Vcom’s] computer system, from [its] email system and locked out of the building.” Gluck
Dec.

¶

18. Gluck stated that “outside contacts” were told that he would not be available because

he was going on sick leave. Id. Gluck was also required to return the Vcom equipment in his
possession. Id.
The day after requesting the two-month FMLA leave, Gluck retracted his request claiming
that his doctor’s note did not state that he had to be out of work for two months. Hart Dep. 41:817. Gluck claims that over the next couple of weeks, he attempted on multiple occasions to discuss
some accommodation that would permit him to return to work, but Vcom refused to have any
discussions with him on the topic. Id.

¶ 19.

In June 2013, Vcom determined that Gluck was ineligible for FMLA leave because he had
not worked the requisite number of hours in the previous year to qualify. Gluck Dep. Day 2 at
153:12 to 154:3; Goldstein Cert.

¶ 39.

On June 27, 2013, Vcom infonned Gluck bytelephone that

his employment was terminated and his position as Alitec Manager had been eliminated. Gluck
Dep. Day 2 155:21 to 158:14. According to Goldstein, Vcom has not replaced Gluck and no
employee has held the Ailtec Manager position since Gluck’s termination. Goldstein Cert.

¶ 42.

Instead, all staff members that had been reporting to Gluck began reporting to Goldstein. Id.

¶ 43.

In response to a lawsuit filed against Gluck by Vcom, Gluck asserted two counterclaims
against Vcom under the New Jersey Law Against Discrimination (“LAD”).5 D.E. 71. Gluck
alleged that he was discriminated against and discharged due to his rheumatoid arthritis and that

This opinion only addresses Gluck’s counterclaims. The Court has supplemental subject matter
jurisdiction over Gluck’s state law counterclaims by virtue of the federal claims asserted by
Vcom in its complaint.
8

Vcom failed to accommodate his disability. Id. Vcom moved for summary judgment, which
Gluck opposed.6
III. LAW AND ANALYSIS
A. Standard of Review

A moving party is entitled to summary judgment where “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). A fact is “material” when a dispute over that fact “might affect the outcome
of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Importantly, “[fjactual disputes that are irrelevant or unnecessary will not be counted.” Id. A
material fact raises a “genuine” dispute “if the evidence is such that a reasonable jury could return
a verdict for the non-moving party.” Williams v. Borough of W Chester, 891 f.2d 458, 459 (3d
Cir. 1989) (quoting Liberty Lobby, 477 U.S. at 248). “Where the record taken as a whole could
not lead a reasonable trier of fact to find for the non-moving party, there is no genuine issue for
trial.” Matsttshita Elec. Indus. Co. v. Zenith Radio Coip., 475 U.S. 574, 587 (1986) (internal
quotation marks omitted). “When analyzing the sufficiency of the evidence, the court must view
the facts and any reasonable inferences drawn therefrom in the light most favorable to the party
opposing summary judgment.” Inter Vest, Inc. v. Bloomberg, L.F., 340 f.3d 144, 159-60 (3d Cir.
2003) (citing Eastman Kodak Co.

V.

Image Technical Sen’s., Inc., 504 U.S. 451, 456 (1992)).

Summary judgment is appropriate “against a party who fails 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Under those

6

Vcom’s initial brief (D.E. 33-1) will be referred to as “Vcom Br.” and its reply (D.E. 56) as
“Vcom Reply.” Gluck’s opposition brief(D.E. 53) will be known as “Gluck Opp.”
9

circumstances, “there can be ‘no genuine issue as to any material fact,’ since a complete failure of
proof concerning an essential element of the nonmoving party’s case necessarily renders all other
facts immaterial.” Id. at 322-23. However, to withstand a motion for summary judgment, the
nonmoving party need only “come forward with evidence which, if believed, would support a
finding in its favor.” In re Bressman, 327 F.3d 229, 237 (3d Cir. 2003).
B. New Jersey Law Against Discrimination

The LAD provides, in part, that it shall be an unlawful employment practice for an
employer to discriminate against an employee because of his or her disability. N.J.S.A. 10:5-12.
“The essential purpose of the LAD is the eradication of the cancer of discrimination.” Quintan v.
Curtiss-Wrigltt Corp., 204 N.J. 239, 258 (2010) (internal quotation marks omitted). “The LAD
was enacted to protect not only the civil rights of individual aggrieved employees but also to
protect the public’s strong interest in a discrimination-free workplace.” Lehmann v. Toys R Us,
Inc., 132 N.J. 587, 600 (1993) (citing Fuchilla vLayman, 109 N.J. 319, 335 (1988)). In this matter,
Gluck alleges that he was discharged due to his rheumatoid arthritis and that Vcom failed to
provide him a reasonable accommodation.

for the reasons discussed below, Gluck fails to

demonstrate a genuine issue of material fact and Vcom is entitled to judgment as a matter of law.
i. Discriminatory Discharge

In a claim for discriminatory discharge under the LAD, an employee is required to present
evidence that: “(1) he was in the protected group; (2) he was performing his job at a level that met
his employer’s legitimate expectations; (3) he nevertheless was fired; and (4) the employer sought
someone to perform the same work after he left.” Zive

V.

Stanley Roberts, Inc., 182 N.J. 436, 450

(2005); see also Victor v. State, 203 N.J. 383, 409 (2010). If an employee satisfies these elements
there is a presumption that the employee’s discharge was discriminatory. Zive, 182 N.J. at 458.
10

“The defendant then bears the burden of rebutting that presumption by articulating a legitimate
and non-discriminatory reason for the termination, and the plaintiff is entitled to show that the
reasons advanced by the defendant are a pretext for discrimination.” Id. The parties do not contest
that Gluck’s rheumatoid arthritis is a recognized disability under the LAD. See Connolly v. Mitsui
0.5K. Lines (Am.), Inc., No. 04-5 127, 2007 WL 4207836, at *6 (D.N.J. Nov. 21, 2007).
Here, Gluck fails to present evidence that Vcom replaced him as Alitec Division Manager.
According to Goldstein, Gluck’s position has not been filled and all employees previously
reporting to Gluck have been reporting to Goldstein. Gluck argues that he was replaced by Robert
Carroll, another Vcom employee. See, e.g., Gluck Opp. at 13; D.E. 53-4

¶

49-50. Critically,

however, Gluck fails to provide any citations to the record demonstrating that Carroll replaced
Gluck. Goldstein certified that Carroll was hired by Vcorn on June 11, 2012 as an eCommerce
Manager, and still holds this position. Reply Certification of Sheldon Goldstein (D.E. 56-2)

¶ 9.

Vcom staff does not report to Carroll and he has no management authority regarding Alltec. Id.
Without evidence that Carroll, or anyone else, took on the role of Alitec Division Manager, Gluck
fails to meet the fourth element in showing aprirnafacie case of discrimination.
But even assuming that Gluck presented aprimafacie case, Vcom presented evidence of a
legitimate and non-discriminatory reason for Gluck’s termination, which Gluck has not rebutted.
In mid-2012, Vcom began considering selling Alltec due to its financial underperformance,
downsizing the division altogether if it could not be sold. Vcom made a legitimate effort in selling
AlItec, which included hiring an investment banker for $40,000 to assist in the prospective sale.
Although Gluck offered to purchase Vcorn himself for $650,000, Gluck needed to raise $245,000
from outside investors by offering preferred stock of Ailtec. Gluck presented no evidence that he
raised this capital and was capable of purchasing Alitec. Moreover, Vcom was seeking to sell

11

Ailtec at a much higher price, around $1.2 million, as evidenced by its offers to other potential
purchasers. To this end, Gluck has not submitted competent evidence that $650,000 was a fair and
reasonable price for Alltec. After Alltec was not sold to a viable purchaser, Vcom proceeded with
the next step of its plan and began downsizing Alitec, which included the elimination of Gluck’s
position. The decision to terminate Gluck was made on April 12, 2013, which was over a month
before Gluck claimed that he needed prescribed time off (and also before Gluck decided that he
could work from home while his kitchen was remodeled).
The above-mentioned facts demonstrate that Vcom had legitimate non-discriminatory
reasons for Gluck’s termination.

further, Gluck has not come forward with any competent

evidence to support an inference that Vcom’s reasons for termination were pretext for
discrimination. Therefore, summary judgrn ent is granted in favor of Vcom as to Gluck’s claim of
discriminatory discharge.
ii. Failure to Accommodate

In a failure to accommodate case of LAD disability discrimination, an employee makes a
prima fade showing by presenting evidence that: “(1) [the employee] was disabled and his

employer knew it; (2) [the employee] requested an accommodation or assistance; (3) his employer
did not make a good faith effort to assist; and (4) [the employee] could have been reasonably
accommodated.” Armstrong v. Burdette Tomlin Mem ‘1 Hosp., 438 F.3d 240, 246 (3d Cir. 2006).
Essential to the success of such a claim is that the employee make a request for accommodation.
However, the request need not be in writing nor does the employee have to use the term
“reasonable accommodation.” Tynan e. Vicinage 13 of Superior Court, 351 N.J. Super. 385, 400
(App. Div. 2002); see also Photis v. Sears Holding Corp., No. 11-6799, 2013 WL 3872519, at *8

12

(D.N.J. July 25, 2013) (granting summary judgment to employer where employee never requested
an accommodation).
In this case, Gluck’s failure to accommodate claim does not survive summary judgment
because he did not request an accommodation until after Vcom made the decision to fire him. It
is undisputed that in April 2012, Vcom provided Gluck with a reduced four-day workweek and
the ability to work from home after he informed Goldstein that he was diagnosed with rheumatoid
arthritis.

‘

On June 4, 2012, Gluck was promoted to Alitec Manager receiving a 60% increase in salary
while working only three days per week at Vcorn. Nowhere in the email negotiations for Gluck’s
new position or the June 4, 2012 employment agreement was there any mention that the three-day
workweek was put in place due to Gluck’s rheumatoid arthritis. To the contrary, immediately
before Gluck received his promotion and reduced three-day workweek in June 2012, Gluck
indicated that he did not need an accommodation for his arthritis. In order to negotiate a higher
salary, Gluck stated that he was capable of making more money in his private consulting business
working forty hours per week. Those facts indicate that, as of June 4, 2012, Gluck’s reduced threeday workweek was unrelated to his disability because Gluck himself represented he was able to
work a full week and did not need an accommodation at that time. Therefore, Gluck has presented
insufficient evidence that as of June 4, 2012, he required an accommodation.
After June 4, 2012, Gluck did not claim that he needed an accommodation for his disability
until May 23, 2013, when he requested a two-month leave of absence from work. Importantly,

“

The record is not clear regarding the precise dialogue that led to Gluck receiving the initial one
day reduction in work in 2012 after Gluck was diagnosed with Rheumatoid Arthritis. That fact,
however, is immaterial because Gluck does not argue that the one-day reduction was unsatisfactory
in accommodating his disability.

however, it is undisputed that Vcom’s decision to terminate Gluck was made before Gluck’s
request. Vcom decided to terminate Gluck on April 12, 2013. Walsh Cert. Ex. L; D.E. 53-4 ¶ 13.
Vcom’s intent to terminate Gluck is further evidenced by the termination letter prepared on May
17,2013. As noted, Gluck was not physically in the office of Vcom starting April 15, 2013. Gluck
did not request to go on FMLA leave or request any fonri of accommodation until six days after
the letter was finalized.
Therefore, Gluck cannot sustain his claim that Vcom failed to accommodate his request for
leave when the request was made after Vcom already decided to terminate him for a reason
unrelated to his disability. Gluck points to no evidence in the record that Vcom’s decision to
terminate Gluck on April 12 was motivated by, or related to, his rheumatoid arthritis in any way.
Vcom was downsizing its Alitec Division after ten months of unsuccessful attempts to sell it,
which was Vcom’s plan all along if the sale could not be completed. Goldstein Dep. at 97:21 to
98:14. Without any evidence that Vcom terminated Gluck because of his disability, or that Vcom
ignored any request to accommodate his disability prior to its decision to terminate him, Gluck’s
failure to accommodate claim cannot survive summary judgment. Therefore, summary judgment
is granted in favor of Vcorn as to Gluck’s failure to accommodate claim.

IV.

CONCLUSION

For the reasons set forth above, Vcom’s motion for summary judgment as to Gluck’s
counterclaims is granted. An appropriate Order accompanies this Opinion.

Dated: March 27, 2017

/

John Michael Vazqu 1jS.D.J.

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