Crabbed ADA interpretation of the year (month?)
Shannon P. Duffy writes in The Legal Intelligencer: “Early-Stage MS Ruled Not a Disability”
A worker who was fired soon after telling his bosses that he suffers from multiple sclerosis cannot rely on the close timing of his announcement and the firing to prove that it was the result of discrimination if the employer had already documented months of substandard job performance prior to learning of his condition, a federal judge has ruled.
In Yudkovitz v. Bell Atlantic Corp., U.S. District Judge Legrome D. Davis granted summary judgment in favor of Bell Atlantic after concluding that plaintiff Louis Yudkovitz had failed to rebut the employer’s legitimate, non-discriminatory reason for firing him.
Significantly, Davis also held that Yudkovitz could not even make a prima facie case of discrimination under the Americans with Disabilities Act because a case of early-stage multiple sclerosis that causes annual “flare-ups” does not qualify as a disability under the ADA without proof that the condition substantially impaired a major life activity.
Yudkovitz also failed to prove his alternate theory that he was “perceived as” disabled, Davis found, because his disclosure of his diagnosis came after months of criticism of his work performance.
“There is nothing in the record to suggest that Yudkovitz’s condition played any role in Verizon’s criticism of his performance or its decision to terminate his employment. To the contrary, the record demonstrates that Yudkovitz’s managers perceived his work to be deficient and were critical of Yudkovitz’s performance beginning at least nine months before his termination,” Davis wrote.
Davis found that Bell Atlantic managers were complaining about Yudkovitz’s poor performance “long before they knew he had MS” and that Yudkovitz did not disclose the diagnosis until April 2000 — more than one month after he was placed on a performance improvement plan. . . .
But long before that, they knew he had a neurological disorder and qualified for short term disability because of it (see below), facts the judge recites but seems not to find significant. (Admittedly, my assessment here is based on the article, not the opinion itself.)
According to court papers, Yudkovitz suffers from “relapsing-remitting multiple sclerosis” and to date suffers “flare-ups” about once a year that last from one week to one month during which he gets dizzy, loses control over his left side and has difficulty climbing steps.
When his MS is in remission, Yudkovitz testified, he still experiences problems in his left leg and left arm, and therefore walks slower, has difficulty climbing steps, lacks the mobility he had in his youth and is unable to lift or move things around the house.
Yudkovitz also testified that, while working for Verizon, his MS never affected his job performance. . . .In November 1999, Yudkovitz was hospitalized after suffering an MS flare-up while walking through a shopping mall. He testified that he called his immediate supervisor to inform her that he would be out sick because his “neurological disorder ha[d] flared up.”
Yudkovitz was referred to CORE Inc., a third-party company that provides Verizon with employee disability management. CORE later told Verizon that Yudkovitz qualified for short-term disability, but it did not share with Verizon any information about the nature of Yudkovitz’s condition.
After he returned to work in December 1999, managers began complaining that Yudkovitz’s work was late and disorganized and that they were concerned about its accuracy and about his ability to react to feedback. . . .
On April 18, 2000, Yudkovitz asked if there would be any consequences if he missed any more time from work and was told that it would probably cost him his job. At that point, Davis found, Yudkovitz disclosed for the first time that he had MS.
In late April, managers decided that Yudkovitz should be fired . . . .
EARLY-STAGE MS
Davis . . . found that Yudkovitz could not make a prima facie case of discrimination under the ADA because he could not show that his early-stage MS substantially affected a major life activity.
Yudkovitz’s lawyer, Andrew Abramson, argued that “MS greatly affects the left side of his body in general and greatly restricts his left leg, causing [him] to have trouble with his balance, great difficulty in walking and prevents him from carrying heavy objects.”
But Davis found that when Yudkovitz was questioned in his deposition about his limitations, he testified that he “walks slower, has difficulty climbing steps, uses a quad-based cane as needed, and is unable to carry things in his left hand.”
A doctor also testified that Yudkovitz experiences left-sided weakness, fatigue and an altered gait.
That evidence, Davis found, fell short of establishing a disability.
“Yudkovitz … presented no evidence that the restriction on his ability to walk is more than moderate. …
I’m sorry, judge, but it sure don’t sound like no picnic. Apparently this judge thinks you have to be in a wheelchair or comatose to be disabled. I bet if he had this condition he’d feel substantially limited.
Davis also rejected Yudkovitz’s claim that he was “perceived as” disabled.
“The mere fact that an employer is aware of an employee’s impairment, however, does not demonstrate that the employer regarded the employee as disabled. … That Verizon noticed Yudkovitz walked with a ‘slight limp’ or knew of his physical impairment does not demonstrate that it perceived Yudkovitz as being disabled,” Davis wrote. . . .
As an employers’ attorney, I like being able to win ADA cases on summary judgment by arguing a plaintiff is not really disabled, and sometimes that’s a sensible approach for the judge to take, but when a person really has a serious illness like this, which has marked impact on mobility and continuity of work availability, it would appear better for the judge to acknowledge the disability and rule on the merits.
Here the judge wanted to protect himself on appeal with this alternative rationale, in case his holding on the intentional discrimination issue was overruled. But he may have just invited appeal by going too far on the disability issue.
