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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. “That Yudkovitz’s termination came within weeks of his disclosure, standing alone, is not sufficient evidence of pretext,” Davis wrote. 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 June 1999, Verizon hired Yudkovitz over five other candidates as a software manager. At the time, Yudkovitz did not disclose that he had MS. Davis found that Yudkovitz “presented himself as an experienced project manager who had worked for 22 different companies over 31 years” and that, when he was hired, he was “expected to come in the door and be, in a very, very quick period of time, if not immediately, very, very productive.” About three months into the job, Yudkovitz was assigned the task of recording minutes at weekly department meetings. On several occasions, he was unable to generate meeting minutes in a timely fashion. Managers also complained that when Yudkovitz was assigned an oral presentation, it was incomplete, factually incorrect and poorly organized. 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. After his performance was rated unsatisfactory, Yudkovitz was placed on a “performance improvement plan” in March 2000, which required him to satisfactorily complete two assignments by the end of that month and pursue some computer training. Davis found that Yudkovitz “struggled” with the two assignments and that the PIP was extended to give him more time to improve. 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 for failing to satisfy the requirements of the PIP. On May 1, 2000, Yudkovitz suffered another flare-up while at home. On May 8, 2000, three days after he returned to work, Yudkovitz was notified that his employment was terminated for performance reasons. Davis found that Yudkovitz requested after he was fired that he be allowed to “telecommute,” allowing him to work from home, as an accommodation for his MS but that Verizon declined to rehire him. EARLY-STAGE MS Davis also 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. … Therefore, the court, although sympathetic towards Yudkovitz’s condition, is satisfied that it does not substantially limit him in the relevant major life activities of walking and lifting.” 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. But even if Yudkovitz could have made out a prima facie case of discrimination, Davis found, his case nonetheless failed because he could not satisfy his burden to rebut Verizon’s explanation that he was fired for poor job performance. “Yudkovitz presented himself as an experienced project manager who could be expected to hit the ground running. Instead, he struggled, missing deadlines and making poor oral presentations,” Davis wrote. Managers, Davis said, “found that he lacked necessary computer skills, produced inaccurate documents, did not respond to feedback and was unable to handle multiple assignments at one time.” When Yudkovitz was placed on a performance improvement plan, Davis said, he “continued to struggle,” and his supervisor “extended the plan, giving him every opportunity to display any skills.” It was only when Yudkovitz failed to show significant improvement that he was fired, Davis found. As a result of that documented history of poor job performance, Davis found that Yudkovitz cannot rely on the proximity of his disclosure of his MS diagnosis and his firing to prove discrimination. “Even if Yudkovitz could establish a prime facie case of discrimination under the [ADA], which he cannot, he has not presented sufficient evidence to permit the trier of fact either to disbelieve Verizon’s reasons, or to conclude that disability discrimination was the real reason for Verizon’s adverse employment actions,” Davis wrote.

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