United States District Court, D. New Jersey
Leon McBurrows asserts claims against Verizon Employee
Benefits committee ("VEBC") and the Verizon Claims
Review Committee ("VCRC") (together, the "Plan
Committees") under the Employee Retirement Income
Security Act of 1974 ("ERISA"), 29 U.S.C. §
1001, et. seq., for the alleged wrongful denial of
disability benefits. He sues Verizon New Jersey, Inc.
("Verizon") under the New Jersey Law Against
Discrimination ("NJLAD"), N.J. Stat. Ann. §
October 12, 2018, the Plan Committees filed a motion for
summary judgment pursuant to Fed. R. Civ. P. 56 (DE
74), which I granted by Order (DE 110) and
Opinion ("Plan Opinion", DE 109). Now before the
Court is Verizon's motion for summary judgment pursuant
to Fed. R. Civ. P. 56 (DE 103); Mr. McBurrows's
cross-motion for summary judgment (DE 111); and Mr.
McBurrows's motion for reconsideration (DE 120) of my
Order and Plan Opinion granting summary judgment to the Plan
McBurrows alleges credibly that he currently suffers from a
long-term disability. While employed by Verizon, however, he
never opted to purchase long-term disability insurance,
despite being given the annual opportunity to do so. This
lawsuit, I reluctantly hold, cannot be used as a backdoor
means of obtaining such long-term benefits retroactively. For
the reasons expressed herein, I must conclude that Verizon
acted reasonably in offering the option to purchase long-term
disability insurance, in granting and extending short-term
disability benefits, and in attempting to accommodate Mr.
McBurrows's disability to permit continued employment.
reasons explained in this opinion, I will grant Verizon's
motion for summary judgment and deny Mr. McBurrows's
cross-motion for summary judgment and motion for
McBurrows originally filed this action in state court against
Verizon and a number of other defendants. Verizon removed the
case to federal court based on federal question jurisdiction
because the claims were based on the denial of disability and
health insurance benefits, and hence were preempted by ERISA.
See 29 U.S.C. §§ 1132 and 1144. The
defendants subsequently moved to dismiss the complaint for
failure to state a claim pursuant to Fed. R. Civ. P.
12(b)(6). (DE 7.) I granted defendants' motion to dismiss
without prejudice to amendment. (DE 15.) On May 11, 2016,
Plaintiff filed his first amended complaint
("FAC"), which added the Plan Committees as
additional defendants. (DE 16.)
then moved to dismiss the FAC pursuant to Rule 12(b)(6). (DE
21; DE 23). In an Opinion dated February 17, 2017, I
dismissed without prejudice Count 1 of the FAC, which I
interpreted as a NJLAD claim of disability discrimination
asserted against Verizon, and denied the motion to dismiss
with respect to the remaining Counts. (DE 33, 34)
. McBurrows v. Verizon, No.
15-cv-6321 (KM), 2017 WL 1243145, at *1 (D.N.J. Feb. 17,
March 20, 2017, Plaintiff filed a motion for leave to amend
the FAC. (DE 39; DE 42.) In a Letter Order dated October 31,
2017, Magistrate Judge Dickson granted Plaintiffs motion for
leave to file a second amended complaint with respect to FAC
Counts 2-6, but denied Plaintiffs motion with respect to FAC
Count 1, which appeared to be a compound claim of age, race,
and disability discrimination pursuant to NJLAD (with some
indications of a claim for breach of express and implied
contract). Consistent with Judge Dickson's Letter Order,
Plaintiff filed his SAC, which omitted the claim for age,
race, and disability discrimination under NJLAD, and is the
current operative pleading. (DE 53.) As stated above, the
Plan Committees subsequently filed a motion for summary
judgment, which I granted. (DE 109, 110.)
before the Court is Verizon's motion for summary judgment
on Count 1 of the SAC, Plaintiffs cross-motion for summary
judgment, and Plaintiffs motion for reconsideration of my
prior order granting summary judgment to the Plan Committees.
(DE 103, DE 117, DE 120.)
McBurrows was employed by Verizon in various capacities from
approximately 1986 through June 2015. (DE 79-2 at 4.) In
2012, Plaintiff became the Senior Process Engineer in the
Company's Lean Six Sigma Program. (DE 103-8 ¶ 5.) In
that position, Plaintiff was responsible for reviewing and
improving the efficacy of Verizon's business processes.
(Id. ¶ 6.) Plaintiff held the position of
Senior Process Engineer as of August 13, 2013.
August 13, 2013, while at work, Plaintiff suffered a stroke.
(Id. ¶ 8.) He was subsequently diagnosed with
an intracerebral hemorrhage and cerebral venous thrombosis.
(Id. ¶ 10.) Because Plaintiff was unable to
return to work, he applied for a Family Medical Leave Act
("FMLA") leave of absence and for short-term
disability ("STD") benefits. (Id. ¶
11.) Verizon's third-party benefits administrator,
Metropolitan Life Insurance Company ("MetLife")
approved Plaintiffs FMLA leave of absence effective from
August 14, 2013 through November 5, 2013, and his request for
STD benefits from August 14, 2013 through February 23, 2014.
(Id. ¶¶ 13, 15.) Plaintiff testified that
as of February 23, 2014, his physical condition still
rendered him unable to return to work. (Id. ¶
16.) Plaintiff also applied to receive long-term disability
("LTD") benefits with MetLife, but his application
was denied because he had failed to opt in for LTD benefits
under Verizon's Disability Benefits Plan. (Id.
letter dated June 17, 2014, MetLife informed Plaintiff that
his claim for STD benefits was terminated as of May 25, 2014.
The medical information they reviewed, said MetLife, no
longer supported a finding that Plaintiff was unable to
perform the "sedentary duties of [Plaintiffs] own
job." (DE 103-3, Ex. 10.) Through another letter, also
dated June 17, 2014, Tom Nugent, Director of Operations at
Verizon, informed Plaintiff that pursuant to MetLife's
termination of his STD benefits, Plaintiff was on an
unauthorized absence and expected to return to work.
(Id., Ex. 12.) Mr. Nugent's letter also informed
Plaintiff that if there was a workplace arrangement or
accommodation that would enable Plaintiff to return to work,
he should contact Verizon or complete and return an
Accommodation Request form no later than Friday, June 20,
2014. (Id.) Plaintiff submitted the Accommodation
Request form requesting to return to work on a part-time work
schedule. Plaintiffs neurologist, Dr. Olajide Williams,
thereafter submitted a completed medical questionnaire as
part of Plaintiffs accommodation request. (DE 103-6, Ex. 6.)
However, MetLife denied the accommodation request, finding
that it was not medically substantiated. (DE 103-3, Ex. 18.)
The email notifying Plaintiff of the denial also instructed
him that if he disagreed with MetLife's determination
that he should have his "health care provider respond to
MetLife directly to address these concerns."
McBurrows attempted to return to work on a full-time basis on
July 14, 2014. (DE 103-8 ¶ 25.) Upon his return, he was
no longer employed as a Senior Process Engineer, but was
given a different role as the JEP Desk Manager. (Id.
¶ 27.) Plaintiff was not required to take a reduction in
pay when he was moved to the new position. (Id.
¶ 31.) In his new role, Plaintiff reported directly to
James Dacey, and was expected to work on a full-time basis.
(Id. ¶¶ 33-34.) From July 14 - August 4,
2014, Plaintiff either left work early or missed workdays due
to his physical condition. (Id. ¶ 35-41.)
email dated July 23, 2014, Plaintiff informed Mr. Dacey of
the days that he would be taking off due to his physical
condition, and that during that time he would be gathering
the required medical documents to request for a workplace
accommodation. (Id. ¶ 42.) On July 24, 2014,
Ms. Linda Cerminaro, a member of Verizon's Workplace
Accommodations Team informed Mr. McBurrows that Verizon would
permit him to work half days until August 6, 2014, so that he
would have more time to submit additional information
regarding his workplace accommodation request. (DE 103-3, Ex.
18.) Plaintiff did not submit any additional documents for
his workplace accommodation request. (DE 103-3, Ex. 15.)
Plaintiff testified at his deposition that he did not submit
additional medical documentation because he felt that he had
already provided a sufficient amount of information to
Verizon and MetLife. (DE 103-3, PI. Dep. Tr. at
261:18-264:15.) Plaintiff also testified that he believed
that as of July 23, 2014, he was unable to work given his
physical condition. (Id. at 292:10-297:24.)
Plaintiff informed Mr. Dacey that because of his physical
limitations, he was unable to perform the essential functions
of the JEP Desk Manager job. (DE 103-4, PI. Dep. Tr. at
letter dated July 23, 2014, Plaintiffs attorney informed
MetLife, that according to Dr. Williams, Mr. McBurrows would
not be able "to resume regular employment until at least
June 2015 and that he may be under permanent lifetime
disability and/or care." (DE 103-3, Ex. 23.) In response
to this letter, Anthony DiVito, Human Resources Business
Partner at Verizon, sent a letter in which he requested
Plaintiffs counsel to clarify whether Plaintiff would be
reporting to work as scheduled on August 5, 2014. If he was
unable to do so, Mr. DiVito wrote, he should contact Ms.
Cerminaro to provide the necessary paperwork for review. Mr.
DiVito's letter also informed Plaintiffs attorney that to
date, Plaintiff had not submitted any additional paperwork to
support his workplace accommodation request to work on a
part-time basis. (DE 103-8 ¶ 50-51.)
Plaintiff returned to work on August 5, 2014. He was informed
that because his request to work on a part-time basis had
been denied, he was expected to work on a full-time schedule.
(Id. ¶ 55.) That day, and for the rest of the
week, Plaintiff either left work early or was unable to go to
work because of his physical condition, which included head
pain, fogginess, headaches, and at times feeling
"slightly incoherent." (Id. ¶¶
response to Plaintiffs sporadic work attendance, Mr. DiVito
sent an email to Plaintiff on August 11, 2014, again
requesting that Plaintiff provide additional medical
documentation for his part-time workplace accommodation
request. (DE 103-4, Ex. 28.) That email also reminded
Plaintiff that his position was a full-time one, where
"regular and predictable attendance is an essential
function of the job." (Id.) During an in-person
meeting between Plaintiff and Mr. DiVito on August 13, 2014,
Plaintiff stated that he felt his workplace accommodation
request was futile because even if it was approved, he would
not be able to work, even on a part-time basis. (Id.
¶ 63.) In an email to Plaintiff dated August 14, 2014,
Mr. DiVito recommended that Plaintiff make an accommodation
request for an additional unpaid leave of absence, and that
any unplanned absences would be unpaid. (DE 103-4, Ex. 31.)
In a subsequent email to Plaintiff dated August 28, 2014, Mr.
DiVito again requested that Plaintiff provide documentation
for any workplace accommodation request. In that letter,
DiVito warned that should Plaintiff choose not to provide
such documents any "further unplanned absences or
unapproved schedule changes will not be permitted" and
that should Plaintiff refuse to engage in the interactive
process with Human Resources, he would be "subject to
discipline up to and including termination." (DE 103-4,
letter dated October 3, 2014, Mr. DiVito again informed
Plaintiff that his continued practice of only working a few
hours a day was negatively impacting his department. As a
result, DiVito wrote, Verizon would be placing Plaintiff on
unpaid personal leave beginning October 6, 2014. (DE 103-4,
testified that at that time, there was no accommodation that
would enable him to return to work to perform the essential
functions of his job. (Id. ¶ 64.) Plaintiff,
through his attorney, provided Verizon's outside counsel
with letters from his medical providers regarding his
physical condition and his inability to work given his
stroke-related "permanent disability." (DE 103-8;
¶¶ 73-80.) By letter dated October 23, 2014, Mr.
DiVito informed Plaintiff that Verizon considered these
documents as a request for an accommodation for an unpaid
leave of absence through June 2015, which Verizon granted.
(DE 103-4, Exs. 37, 43.) Plaintiffs counsel also provided
Verizon another letter from Dr. Robert Latimer, another of
Plaintiffs medical providers, which stated that he considered
Plaintiff to be "totally and permanently disabled"
and unable to work. (DE 103-8 ¶ 82.) Plaintiff testified
in his deposition that he agreed with this diagnosis. (DE
103-4, Pl. Dep. Tr. 411:7-10.)
took a leave of absence from October 6, 2014 - May 2015. (DE
103-8 ¶ 84.) On June 1, 2015, Plaintiff was informed
that following a successful appeal, his STD benefits were
extended until August 12, 2014 (Id. ¶ 85.) On
June 5, 2015, Ms. Louise Hand, Human Resources Business
Partner at Verizon, sent a letter to Plaintiff informing him
of the various employment options available to him, which
included: (1) returning to work at Verizon; (2) requesting a
workplace accommodation; (3) requesting an applicable leave
of absence; (4) applying for disability or service pension,
if eligible; or (5) terminating his employment with Verizon.
(DE 103-4, Ex. 43.) The letter stated that Plaintiff had to
decide his next step regarding his employment by June 19,
2015, or else the Company would assume that Plaintiff
voluntarily resigned from the company effective June 22,
letter dated June 18, 2015, to Verizon's outside counsel,
Plaintiffs attorney requested that Mr. McBurrows receive an
extension for an additional year on his leave of absence
(presumably until June 2016). (DE 103-4, Ex. 44.) Plaintiffs
counsel provided supporting documentation of Plaintiffs
physical condition, stating that Plaintiff was currently
physically unable to work. (DE 103-8 ¶¶ 90-91.) Dr.
Williams reported that at best, he would hope that "with
appropriate counseling and therapy . . . [Plaintiffs]
symptoms will improve over time." (DE 103-8 ¶ 91.)
Dr. Williams's letter, however, did not provide any
assurance that Plaintiffs symptoms would improve or any
estimate of when that might occur. (Id. ¶ 92.)
Given Plaintiffs total disability and inability to provide an
anticipated return-to-work date, Verizon denied Plaintiffs
request for a one-year extension of his leave of absence. (DE
103-4, Ex. 45.) Verizon terminated Plaintiffs employment
effective June 25, 2015 (Id., Ex. 46.)
April 2, 2015, Plaintiff applied for disability benefits from
the United States Social Security Administration
("SSA"), He was awarded such benefits in September
2017. (DE 103-8 ¶¶ 101, 104.) In the administrative
decision granting Plaintiff his SSA benefits, the
administrative law judge determined that Plaintiff was not
able to perform his past relevant work at Verizon, and that
there were no jobs in the national economy that he was able
to perform. (Id. ¶¶ 106-07.) Plaintiff
testified that from the day of his stroke until his
deposition, which spanned approximately four years, he has
not applied for any jobs because he is not physically capable
of working. (DE 103-4, PI. Dep. Tr. at 285:1-22.)
Motion for Summary Judgment
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." See
Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d
Cir. 2000); Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). In 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. Cnty. of Allegheny Pennsylvania, 139 F.3d 386,
393 (3d Cir. 1998) (citing Peters v. Delaware River
PortAuth. of Pa. 8s 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 parry may be discharged by 'showing- that is,
pointing out to die district court-that there is an absence
of evidence to support the nonmoving party's case."
Id. at 325.
the moving party has met that threshold burden, die
non-moving party "must do more dian 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, 106 S. Ct. 1348, 89 L. Ed. 2d
538 (1986). The opposing parry 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 parry
must rely to support its assertion that genuine issues of
material fact exist).
allegations, subjective beliefs, or argument alone, however,
cannot forestall summary judgment. See Lujan v. Nat'l
Wildlife Fed'n, 497 U.S. 871, 888, 111 L. Ed. 2d
695, 110 S. Ct. 3177 (1988) (nonmoving party may not
successfully oppose summary judgment motion by simply
replacing "conclusory allegations of the complaint or
answer with conclusory allegations of an affidavit.");
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."). Thus, if the nonmoving parry 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 . . . 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 Cos. & Sur.
Co., 972 F.2d 53, 55 (3d Cir. 1992) (quoting
Celotex, 477 U.S. at 322-23).
the "mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact."
Anderson, 477 U.S. at 247-48. A fact is only
"material" for purposes of a summary judgment
motion if a dispute over that fact "might affect the
outcome of the suit under the governing law."
Id. at 248. A dispute about a material fact is
"genuine" if "the evidence is such that a
reasonable jury could return a verdict for the nonmoving
the parties file cross-motions for summary judgment, the
governing standard "does not change." Clevenger
v. First Option Health Plan of N.J., 208 F.Supp. 2d 463,
468-69 (D.N.J. 2002) (citing Weissman v. U.S.P.S.,
19 F.Supp. 2d 254 (D.N.J. 1998)). The court must consider the
motions independently, in accordance with the principles
outlined above. Goldwell of N.J., Inc. v. KPSS,
Inc., 622 F.Supp. 2d 168, 184 (D.N.J. 2009);
Williams v. Philadelphia Housing Auth., 834 F.Supp.
794, 797 (E.D. Pa. 1993), affd, 27 F.3d 560 (3d
Cir.1994). That one of the cross-motions is denied does not
imply that the other must be granted. For each motion,
"the court construes facts and draws inferences in favor
of the parry against whom the motion under consideration is
made" but does not "weigh the evidence or make
credibility determinations" because "these tasks
are left for the fact-finder." Pichler v.
UNITE, 542 F.3d 380, 386 (3d Cir. 2008) (internal
quotation and citations omitted).
Plaintiffs Accommodation Claim
Verizon moves for summary judgment on Count 1 of Plaintiffs
SAC. Although the Complaint fails to clearly specify the
particular cause of action being pled, I have previously
interpreted that count as a claim of failure to accommodate a
disability, in violation of NJLAD. See McBurrows v.
Verizon, No. 15-CV-6321 (KM), 2017 WL 1243145, at *4
(D.N.J. Feb. 17, 2017).
failure to accommodate claim is "one of two distinct
categories of disability discrimination claims; the other
claim being disparate treatment discrimination, which is not
present in this case." Tynan v. Vicinage 13 of
Superior Court, 351 N.J. Super. 385, 397, 798 A.2d 648,
655 (App. Div. 2002) (citing Viscik v. Fowler Equip.
Co., 173 N.J. 1, 19, 800 A.2d 826, 837 (2002)). Here,
too, no disparate treatment claim is made. New Jersey's
Department of Law and Public Safety regulations require
employers to make "make a reasonable accommodation to
the limitations of an employee or applicant who is a person
with a disability, unless the employer can demonstrate that
the accommodation would impose an undue hardship on the
operation of its business." N.J. Admin. Code §
employer is required to accommodate an employee's
disability, but it is not an insurer. A plaintiff asserting a
failure to accommodate claim must "prove that at all
material times he was able to perform the essential functions
of his job, with or without accommodation." Van de
Pol v. Caesars Hotel Casino, 979 F.Supp. 308, 312
(D.N.J. 1997) (citing McNemarv. The Disney Store,
Inc., 91 F.3d 610, 618 (3d Cir.1996)). An employer's
duty to accommodate "extends only so far as necessary to
allow a disabled employee to perform the essential functions
of his job. It does not require acquiescence to the
employee's every demand." Tynan, 351 N.J.
Super, at 397 (internal citation and quotation marks
omitted). "If an employer reasonably determines that an
employee because of handicap cannot presently perform the job
even with an accommodation, then the employer need not
attempt reasonable accommodation." Id.
(internal citation omitted). The employer is responsible for
initiating an "informal interaction process" with
the employee in order to determine what appropriate
accommodation is necessary. Id. at 400.
plaintiff asserting a claim for failure to accommodate a
disability under the NJLAD must prove that: "1) the
employer knew about the employee's disability; 2) the
employee requested accommodations or assistance for his or
her disability; 3) the employer did not make a good faith
effort to assist the employee in seeking accommodations; and
4) the employee could have been reasonably accommodated but
for the ...