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McBurrows v. Verizon

United States District Court, D. New Jersey

December 18, 2019

LEON MCBURROWS, Plaintiff,
v.
VERIZON, et al., Defendants.

          OPINION

          KEVIN MCNULTY. U.S.D.J.

         Plaintiff 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")[1] under the New Jersey Law Against Discrimination ("NJLAD"), N.J. Stat. Ann. § 10:5-12.

         On October 12, 2018, the Plan Committees filed a motion for summary judgment pursuant to Fed. R. Civ. P. 56 (DE 74),[2] 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 Committees.

         Mr. 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.

         For the 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 reconsideration.

         I. Summary

         A. Procedural History

         Mr. 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.)

         Defendants 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) .[3] McBurrows v. Verizon, No. 15-cv-6321 (KM), 2017 WL 1243145, at *1 (D.N.J. Feb. 17, 2017).

         On 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.[4] (DE 109, 110.)

         Now 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.)

         A. Facts [5]

         Mr. 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. (Id.¶7.)

         On 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. ¶ 12.)

         By 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." (Id.)

         Mr. 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.[6] (Id. ¶ 35-41.)

         By an 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 413:12-414:10.)

         In a 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.)

         Nevertheless, 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. ¶¶ 56-60.)

         In 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, Ex. 33.)

         By 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, Ex. 36.)

         Plaintiff 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.)

         Plaintiff 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, 2015. (Id.)

         In a 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.)

         On 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.)

         II. Motion for Summary Judgment

         A. Legal 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." 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.

         Once 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).

         Unsupported 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).

         Moreover, 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 party." Id.

         When 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).

         B. Plaintiffs Accommodation Claim

         Defendant 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.[7] See McBurrows v. Verizon, No. 15-CV-6321 (KM), 2017 WL 1243145, at *4 (D.N.J. Feb. 17, 2017).

         A 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 § 13:13-2.5.

         An 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.

         A 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 ...


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