HOLMES-MERGUCZ v. CELLCO PARTNERSHIP

*NOT FOR PUBLICATION*

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

BRIDGET HOLMES-MERGUCZ,

Plaintiff,

Civil Action No. 18-11816 (FLW)

v.

OPINION

CELLCO PARTNERSHIP d/b/a VERIZON,

Defendant.

WOLFSON, Chief Judge:

In this employment discrimination suit, Plaintiff Bridget Holmes-Mergucz (“Plaintiff” or

“Ms. Holmes-Mergucz”), alleges that her former employer, Defendant Cellco Partnership d/b/a

Verizon (“Defendant” or “Verizon”) discriminated and retaliated against her on the basis of her

disability and request for accommodation, in violation of the Family and Medical Leave Act

(“FMLA”), 29 U.S.C. § 2601 et seq.; the Americans with Disabilities Act, as amended (“ADA”),

42 U.S.C. § 12101 et seq.; and the New Jersey Law Against Discrimination, N.J.S.A. § 10:5-3, et

seq. (“NJLAD”). Verizon now moves for summary judgment pursuant to Fed. R. Civ. P. 56. For

the reasons set forth below, Verizon’s motion for summary judgment is GRANTED.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The following facts are undisputed, unless otherwise noted. This matter arises from

Verizon’s termination of Plaintiff in December 2017, from her Engineer I-RE/Regulatory position.

See generally ECF No. 16, Am. Compl. Initially, Plaintiff was hired as a Telesales Representative

by Verizon, a telecommunications company headquartered in Bedminster, New Jersey, on October

4, 2012; she began a new role1 in an Engineer I-RE/Regulatory position on or about June 7, 2015.

ECF No. 58-3, Def. SOMF ¶¶ 25 and 33. In her role as Telesales Representative, Plaintiff was

responsible for facilitating incoming sales calls. Pl. Dep., Pl. Opp. Ex. B at 29:10 to 20. As an

Engineer I-RE, Plaintiff’s role included the review of “abstracting contracts.” Id. at 70:19 to 21.

From October 2012 to June 2015, during her time as a Telesales Representative, Verizon

claims that Plaintiff’s supervisors, including Robert Cioffi and Brenden Collins, noted several

“performance issues” related to Plaintiff’s work, including missed quotas and difficulties

achieving customer satisfaction goals and other metrics. Id. at ¶¶ 26-33.2 For example, although

Plaintiff did not receive a performance review in 2012, because she was considered a new

employee at that time, her manager noted some performance concerns, including “Plaintiff’s call

efficiency issues and communication issues, such as being professional and courteous on calls.”

Id. at ¶ 26. In 2013, Plaintiff received a performance rating of “Developing” at her Year-End

Performance Review,3 which meant that her “[p]erformance did not meet objectives, requirements

and expectations; some or all objectives were not met and improvement is needed.” Id. at ¶ 28.

Two years later, in April 2015, Plaintiff was also placed on a thirty-day performance improvement

plan (“PIP”), because she was ranked 176 out of 180 Telesales Representatives on Verizon’s

Consumer Team. Id. at ¶ 30. This PIP was renewed for another thirty-day period in May 2015,

after Plaintiff was ranked 169 out of 176 Telesales Representatives. Id. at ¶ 31.

1 The Court notes that while Verizon characterizes this change in position as a “transfer,”

Plaintiff classifies it as a promotion.

2 Plaintiff does not contest the results of her yearly performance reviews from 2012 to 2014,

nor does she contest that she was placed on a performance improvement plan in 2015; however,

Plaintiff argues that her performance as a Telesales Representative is irrelevant to this case because

those performance reviews “did not factor into Defendant’s stated reason for terminating

Plaintiff’s employment in any way.” Pl. Resp. SOMF ¶¶ 26-33.

3 Employees are ranked in four potential categories: leading, performing, developing, or new

to role. DiSanto Dep., Pl. Opp. Ex. L at 49:15-22.

On June 7, 2015, Plaintiff began her new role as an Engineer I-RE, in which she provided

regional and area support for all network lease-related issues. Id. at ¶ 33. In this new position,

Plaintiff was supervised by David DiSanto (“DiSanto”) and Margaret Salemi (“Salemi”). Id.

According to Verizon, from June 2015 to May 2016, Plaintiff also performed poorly in this new

role. Id. at ¶ 34. Specifically, Verizon claims that Plaintiff exhibited “unprofessional tone and

behavior,” failed to submit her timesheet and other reports on several occasions, worked non-

approved overtime, left work early without notifying superiors, and received multiple notices

regarding the inappropriate streaming of audio and video at work. Id. at ¶¶ 35 and 38. On

September 15, 2015, DiSanto emailed Verizon’s Human Resources department, stating: “I am

seeing a continued pattern of behavior where [Plaintiff] is not meeting expectations with the team

nor communicating effectively with the managers and peer group.” Id. at ¶ 37. Several months

thereafter, at her 2015 Year-End Performance Review, Plaintiff received an overall rating of

“Performing.” Id. at ¶¶ 40-41.

A. Medical Leave and Receipt of Workplace Accommodation

On May 23, 2016, Plaintiff was injured in an automobile accident. Def. SOMF ¶ 42. As

a result of the accident, Plaintiff sustained a broken femur and other injuries, which required

hospitalization, surgery, and weeks of rehabilitation. Id. at 43. During the time following her

accident, Verizon granted Plaintiff’s requests for leave and accommodations, including twelve

weeks of medical leave from May 23, 2016 to August 16, 2016, under the FMLA and New Jersey

Family Leave Act, short-term disability benefits, an additional three and a half months, from

August 17, 2016 through December 5, 2016, of ADA-leave beyond Plaintiff’s FMLA entitlement,

and various degrees of work-from-home accommodation. Id. at 44.

As it relates to Plaintiff’s work-from-home accommodation, Plaintiff’s and Defendant’s

version of the facts diverge slightly. According to Plaintiff, she originally anticipated working

from home only until January 15, 2017; however, she requested at least two extensions of the

accommodation. ECF No. 62-1, Pl. Suppl. SOMF ¶¶ 10-13. Indeed, the parties agree that Plaintiff

was first permitted to work entirely from home at the conclusion of her medical leave, because

Plaintiff’s doctor indicated that she was limited in her ability to walk, drive, sit for extended

periods, and that Plaintiff’s leg needed to be elevated. Def. SOMF ¶ 44; Pl. Resp. SOMF ¶ 44.

Thereafter, in March 2017, Verizon modified Plaintiff’s work-from-home accommodation to

permit Plaintiff to work from home four days per week. Def. SOMF ¶ 44. Finally, in June 2017,

Verizon again modified Plaintiff’s work-from-home accommodation to permit Plaintiff to work

from home three days per week. Id. Plaintiff worked from home three day per week, in accordance

with the accommodation granted in June 2017, until she was terminated in December 2017. Id.

According to Plaintiff, however, these requests to work from home, while granted, were

not supported by her supervisors at Verizon. Pl. Suppl. SOMF ¶¶ 2-27. Specifically, Verizon’s

HR consultant, Jason Foeshel (“Foeshel”) testified at his deposition that Verizon was

“uncomfortable with the whole work from [home] process from the get-go,” and Plaintiff testified

that DiSanto informed her that Salemi felt as though Plaintiff was “milking the system” by not

coming to work on a daily basis. Id. at ¶¶ 9, 14, and 21; see also Ex. K to Pl. Opp. at 77:1 to 10;

Ex. B to Pl. Opp. at 156:20-157:14.

B. Plaintiff’s Performance Post-Medical Leave

Following Plaintiff’s accident, Verizon claims that her performance issues at work

continued. Def. SOMF ¶ 47. In that regard, Plaintiff’s 2016 Year-End Performance Review,

which gave her an overall rating of “Performing,” noted that Plaintiff “missed key Terminations

and Renewals which are critical to the business and her core work responsibilities,” that Plaintiff’s

supervisors held meetings with her in February and May 2016 to address “professionalism in the

workplace,” and that Plaintiff had attended team meetings unprepared or late. See 2016 Year-End

Performance Review, Declaration of Gregory T. Alvarez, Esq. in Support of Def.’s Motion for

Summary Judgment (“Alvarez Decl.”) at Ex. 34. Further, the 2016 Year-End Performance Review

identified that “[t]here is a systematic issue with missing, incorrect, or inaccurate work being

performed.” Id. Likewise, Plaintiff’s 2017 Mid-Year Evaluation noted that she continued to have

“communication issues with the team,” including issues with “respectful workplace

communications,” and her overall error rate of 19.25% was “significantly higher than the 6%

tolerable threshold.” See 2017 Mid-Year Evaluation, Alvarez Decl. at Ex. 35. In addition, the

2017 Mid-Year Evaluation also identified positive attributes displayed by Plaintiff in the

workplace, including that “[Plaintiff] has the ability to work with all levels of the organization and

has shown that she engages well with peers to foster [and] adopt a positive culture with the team.”

Id. Further, the 2017 Mid-Year evaluation commented: “If [Plaintiff] can demonstrate a mastery

of the subject matter she is assigned while contributing positively to the workplace, she can

improve upon the 1st half of the year and end the year more favorable.” Id. According to Plaintiff,

the negative comments made by DiSanto throughout her 2016 Year-End Performance Review and

her 2017 Mid-Year Evaluation were false and misrepresented her workplace performance. Pl.

Resp. SOMF ¶¶ 47-54.

Following her 2017 Mid-Year evaluation, Plaintiff was placed on a forty-five day Action

Plan in June 2017. Def. SOMF ¶ 55. The Action Plan included several “action items” or objectives

for Plaintiff during the Action Plan’s forty-five day period. See Action Plan, Alvarez Decl. at Ex.

37. For example, among other things, the Action Plan called for Plaintiff to “[m]aintain accurate

company records,” “[c]ommunicate professionally,” [m]aintain an error rate below 6% for work

submitted and reviewed by QC,” and “[c]omplete timesheets accurately per hours worked.” Id.

C. Verizon’s RIF and Plaintiff’s Termination

In October 2017, Verizon conducted a company-wide reduction in force (“RIF”). Def.

SOMF ¶ 65. In that regard, Salemi was advised that Verizon would need to reduce its workforce

to meet budgetary initiatives and that, as a result, she was required to reduce the number of

employees in the department where Plaintiff worked. Id. at ¶ 67. Following Verizon’s evaluation,

three employees, including Plaintiff, were identified as having scored the lowest in Plaintiff’s

department on Verizon’s RIF “Rate and Rank” evaluation. Id. at ¶ 72. On November 16, 2017,

Verizon notified the three lowest scoring employees, including Plaintiff, that they were impacted

by the RIF, and that their employment would be terminated on December 30, 2017, unless they

found a new position at the company by December 29, 2017. Id. at ¶ 80.

Following the news of her anticipated termination, Plaintiff applied for three positions at

Verizon; however, her candidacy was rejected with respect to each opening. Id. at ¶ 87. Thus,

because Plaintiff did not secure another position with Verizon, her employment was terminated

effective December 30, 2017. Id. at ¶ 88.

D. Procedural History

On July 19, 2018, Plaintiff filed a three-count Complaint against Defendant, asserting

claims of disability discrimination, retaliation, and hostile work environment under the ADA,

NJLAD, as well as retaliation and interference under the FMLA. See ECF No. 1.

On November 16, 2018, Plaintiff filed an Amended Complaint, asserting additional

allegations of refusal to hire in violation of the ADA, NJLAD and FMLA. See ECF No. 16.

Specifically, as it relates to her ADA and NJLAD claims, Plaintiff alleges she was subjected to

discrimination, retaliation and hostile work environment “because of: (1) her known and/or

perceived health problems; (2) her record of impairment; and/or (3) her requests for reasonable

accommodations.” Id. at ¶¶ 38-59.

On December 22, 2020, Verizon filed the instant Motion for Summary Judgment. ECF

No. 58. In response, Plaintiff filed opposition on January 29, 2021, in which she expressly

abandoned her claims for failure to rehire, hostile work environment and interference under the

FMLA. ECF No. 62. Accordingly, the following claims remain: (1) disability discrimination and

retaliation under the ADA, (2) disability discrimination and retaliation under the NJLAD, and (3)

retaliation under the FMLA. (Pl. Opp. Br. at 1.)

II. LEGAL STANDARD

Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter

of law.” Fed. R. Civ. P. 56(c). A factual dispute is genuine only if there is “a sufficient evidentiary

basis on which a reasonable [factfinder] could find for the non-moving party,” and it is material

only if it has the ability to “affect the outcome of the suit under governing law.” Kaucher v. Cty.

of Bucks, 455 F.3d 418, 423 (3d Cir. 2006); see also Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). Disputes over irrelevant or unnecessary facts will not preclude a grant of

summary judgment. Anderson, 477 U.S. at 248. “In considering a motion for summary judgment,

a district court may not make credibility determinations or engage in any weighing of the evidence;

instead, the non-moving party’s evidence ‘is to be believed and all justifiable inferences are to be

drawn in his favor.’” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting

Anderson, 477 U.S. at 255); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 587, (1986); Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002).

The party moving for summary judgment has the initial burden of showing the basis for its

motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “If the moving party will bear the

burden of persuasion at trial, that party must support its motion with credible evidence ... that

would entitle it to a directed verdict if not controverted at trial.” Id. at 331. On the other hand, if

the burden of persuasion at trial would be on the nonmoving party, the party moving for summary

judgment may satisfy Rule 56’s burden of production by either (1) “submit[ting] affirmative

evidence that negates an essential element of the nonmoving party’s claim” or (2) demonstrating

“that the nonmoving party’s evidence is insufficient to establish an essential element of the

nonmoving party’s claim.” Id. Once the movant adequately supports its motion pursuant to Rule

56(c), the burden shifts to the nonmoving party to “go beyond the pleadings and by her own

affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate

specific facts showing that there is a genuine issue for trial.” Id. at 324; see also Matsushita, 475

U.S. at 586; Ridgewood Bd. of Ed. v. Stokley, 172 F.3d 238, 252 (3d Cir. 1999). In deciding the

merits of a party’s motion for summary judgment, the court's role is not to evaluate the evidence

and decide the truth of the matter, but to determine whether there is a genuine issue for trial.

Anderson, 477 U.S. at 249. Credibility determinations are the province of the factfinder. Big

Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). There can be “no

genuine issue as to any material fact,” however, if a party 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, 477 U.S. at 322-23. “[A] complete failure of proof

concerning an essential element of the nonmoving party’s case necessarily renders all other facts

immaterial.” Id. at 323; Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992).

III. DISCUSSION

Each of Plaintiff’s state and federal claims are governed by the three-step burden shifting

framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Sulima

v. Tobyhanna Army Depot, 602 F.3d 177, 185 (3d Cir. 2010) (ADA discrimination); Victor v.

State, 203 N.J. 383, 408 (2010) (NJLAD discrimination); Stouch v. Twp. of Irvington, 354 F. App’x

660, 667 (3d Cir. 2009) (ADA retaliation); Craig v. Suburban Cablevision, Inc., 140 N.J. 623,

629-30 (1995) (NJLAD retaliation); Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294,

301-02 (3d Cir. 2012) (FMLA retaliation).

Under this framework, Plaintiff first bears the burden to establish a prima facie case of

discrimination or retaliation. “To establish a prima facie case of discrimination under the ADA

and NJLAD, a plaintiff must show: (1) he is a disabled person within the meaning of the ADA [or

NJLAD]; (2) he is otherwise qualified to perform the essential functions of the job, with or without

reasonable accommodations by the employer; and (3) he has suffered an otherwise adverse

employment decision as a result of discrimination.” Marino v. Adamar of Jersey, Inc., No. 05-

4528, 2009 U.S. Dist. LEXIS 7893, at *6-7 (D.N.J. Feb. 3, 2009) (internal quotations omitted).

Similarly, to establish a prima facie case of retaliation under the ADA and LAD, a plaintiff must

show: (1) she engaged in a protected activity; (2) she was thereafter subjected to an adverse

employment action; and (3) there was a causal connection or link between the two. Krouse v. Am.

Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997); Romano v. Brown & Williamson Tobacco Corp.,

284 N.J. Super. 543, 548-49 (App. Div. 1995). Lastly, to succeed on an FMLA retaliation claim,

a plaintiff must show that “(1) she invoked her right to FMLA-qualifying leave, (2) she suffered

an adverse employment decision, and (3) the adverse action was causally related to her invocation

of rights.” Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 301-02 (3d Cir. 2012).

Next, if Plaintiff establishes a prima facie case under the ADA, NJLAD, or FMLA, the

burden shifts to Defendant to articulate a legitimate business reason for the adverse employment

action. Dodson v. Coatesville Hosp. Corp., 773 F. App'x 78, 80 (3d Cir. 2019); Daniels v. Sch.

Dist. of Philadelphia, 776 F.3d 181, 193 (3d Cir. 2015). “The employer satisfies its burden of

production by introducing evidence which, taken as true, would permit the conclusion that there

was a nondiscriminatory reason for the unfavorable employment decision.” Fuentes v. Perskie, 32

F.3d 759, 763 (3d Cir. 1994).

Third, assuming Defendant articulates a legitimate, non-discriminatory explanation,

Plaintiff bears the final burden to demonstrate that Defendant’s proffered reasoning was a mere

pretext through evidence that the provided rationale was false or that the real reason for the adverse

action was discriminatory or retaliatory animus. Dodson, 773 F. App’x at 80; Daniels, 776 F.3d

at 193. To do so, the plaintiff must “point to some evidence…from which a factfinder could

reasonably either (1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that

an invidious discriminatory reason was more likely than not a motivating or determinative cause

of the employer’s action.” Id. (quoting Fuentes, 32 F.3d at 764).

At the outset, Verizon does not dispute that Plaintiff is disabled within the meaning of the

ADA or NJLAD. Moreover, while Verizon argues that Plaintiff cannot make a prima facie

showing of discrimination or retaliation under the ADA, NJLAD, or FMLA because negative

performance evaluations, action plans, and “nit-picking” by supervisors do not constitute legally

cognizable adverse employment actions, an element required for all claims, Plaintiff clarifies that

she is not asserting that these individual actions are standalone claims. Rather, Plaintiff asserts

that these actions provide “support to the causal connection in her claims that she was terminated

due to her disability and in retaliation for requesting accommodation/utilizing leave as well as to

show pretext.” (Pl. Opp. Br. at 4.) Therefore, the only adverse employment action which Plaintiff

bases her claims under the ADA, NJLAD, and FMLA is her termination. In that regard, Verizon

does not dispute that Plaintiff’s termination qualifies as an adverse employment action. Thus, on

this motion, the only basis on which Verizon challenges Plaintiff’s prima facie case is the causal

connection between her disability, request for leave, and accommodations and her termination—a

common element amongst claims for discrimination and retaliation under the ADA, NJLAD, and

FMLA. See Tielle v. Nutrition Grp., 810 F. App’x 160, 162-63 (3d Cir. 2020). Because each of

Plaintiff’s claims require a causal connection to establish a prima facie case, the Court will address

the claims together.

In Kachmar v. SunGard Data Sys., 109 F.3d 173, 177 (3d Cir. 1997), the Third Circuit

explained that proof of a causal connection between a protected activity and an adverse

employment action, like termination, involves a highly specific inquiry into the motives of an

employer and may be established in a number of ways. “Causation may depend on the temporal

proximity between the employee’s protected activity and the adverse employment action.” Jackson

v. Trump Ent. Resorts, Inc., 149 F. Supp. 3d 502, 509 (D.N.J. 2015) (citing Kachmar, 109 F.3d at

177). Temporal proximity can serve as circumstantial evidence “sufficient to raise the inference

that [the plaintiff’s] protected activity was the likely reason for the adverse action.” Kachmar, 109

F.3d at 177 (quoting Zanders v. Nat’l R.R. Passenger Corp., 898 F.2d 1127, 1135 (6th Cir.1990)).

Absent temporal proximity, “circumstantial evidence of a ‘pattern of antagonism’ following the

protected conduct can also give rise to the inference.” Id. Temporal proximity and a pattern of

antagonism, however, “are not the exclusive ways to show causation, as the proffered evidence,

looked at as a whole, may suffice to raise the inference.” Id.

The Court first looks to the temporal connection. “In certain narrow circumstances, an

‘unusually suggestive’ proximity in time between the protected activity and the adverse action may

be sufficient, on its own, to establish the requisite causal connection.” Wright v. Providence Care

Ctr., LLC, 822 F. App’x 85, 94–95 (3d Cir. 2020) (quoting Marra v. Philadelphia Hous. Auth.,

497 F.3d 286, 302 (3d Cir. 2007)). “Where the time between the protected activity and adverse

action is not so close as to be unusually suggestive of a causal connection standing alone, courts

may look to the intervening period for demonstrative proof, such as actual antagonistic conduct or

animus against the employee[.]” Marra, 497 F.3d at 302.

Here, Plaintiff does not dispute that the record lacks evidence of a temporal connection

between her leave and subsequent work-from-home accommodations and her termination. See Pl.

Opp. Br. at 8-9. Plaintiff was injured on May 23, 2016, and as a result, she took twelve weeks of

FMLA leave from May 23, 2016 to August 16, 2016. Thereafter, following an additional three

and a half months of ADA-leave, Plaintiff’s leave concluded on December 5, 2015. Shortly

thereafter, Verizon granted Plaintiff’s work-from-home request such that from December 2015

until her termination on December 30, 2017, Plaintiff worked from home in some capacity.

Clearly, this timing does not raise an inference of causation. See LeBoon v. Lancaster Jewish

Cmty. Ctr. Ass’n, 503 F.3d 217, 233 (3d Cir. 2007) (“Although there is no bright line rule as to

what constitutes unduly suggestive temporal proximity, a gap of three months between the

protected activity and the adverse action, without more, cannot create an inference of causation

and defeat summary judgment.”); see also Williams v. Philadelphia Hous. Auth. Police Dep’t, 380

F.3d 751, 760 (3d Cir. 2004), superseded by statute on other grounds as stated in Robinson v. First

State Cmty. Action Agency, 920 F.3d 182, 187-89 & n.30 (3d Cir. 2019) (holding that a lapse of

over two months between protected activity and adverse employment action “is not so close as to

be unduly suggestive” of retaliation) (citation omitted); Thomas v. Town of Hammonton, 351 F.3d

108, 114 (3d Cir. 2003) (finding a three week gap between protected activity and adverse

employment action not unduly suggestive of retaliation); Duncan v. Chester Cty. Hosp., 677 F.

App’x 58, 62 (3d Cir. 2017) (finding that a thirty-four day gap between requested FMLA leave

and termination was not unduly suggestive of retaliation).

Absent temporal connection, the Court considers whether Plaintiff has demonstrated a

sufficient period of “intervening antagonism,” or if whether the record, as a whole, establishes

causation. LeBoon, 503 F.3d at 232. To make this determination, “courts consider ‘a broad array

of evidence.’” Incorvati v. Best Buy Co., No. 10-1939, 2013 WL 3283956, at *5 (D.N.J. June 27,

2013). Importantly, “it is incumbent upon the employee to demonstrate that the antagonistic

behavior began after the FMLA request was made.” Id. (Comparing Randler v. Kountry Kraft

Kitchens, No. 11–474, 2012 WL 6561510 at *12 (M.D.Pa. Dec.17, 2012) (rejecting plaintiff’s

causation argument in part because the alleged antagonistic behavior towards plaintiff, taking the

form of “jokes and remarks,” was “not markedly different from the incidents [the plaintiff]

experienced prior to her” engaging in protected activity) with Abramson v. William Paterson

College of New Jersey, 260 F.3d 265, 289 (3d Cir. 2001) (crediting plaintiff’s evidence of ongoing

antagonism in light of evidence of plaintiff’s superior’s “change in demeanor after [plaintiff

engaged in protected activity]”). In addition, inconsistencies or discrepancies in the employer’s

articulated reasons for terminating the employee may be sufficient to support an inference of

causation. LeBoon, 503 F.3d at 232; Abramson, 260 F.3d at 290. When considering any

circumstantial evidence of causation, the Court is to lend “a careful eye to the specific facts and

circumstances encountered.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 n. 5 (3d Cir.

2000); see also Robinson v. Southeastern Pennsylvania Transp. Auth., Red Arrow Div., 982 F.2d

892, 895 (3d Cir. 1993) (deeming trial court’s finding of a causal link not to be clearly erroneous

when evidence was presented that the plaintiff was subjected to “a constant barrage of written and

verbal warnings ..., inaccurate point totalings, and disciplinary action, all of which occurred soon

after plaintiff’s initial complaints and continued until his discharge”) (Title VII discrimination

case); Marra, 497 F.3d at 304-05 (finding causation based on pattern of antagonism when, after

engaging in protected activity, plaintiff’s computer was vandalized and never adequately

investigated, plaintiff was excluded from an important meeting, one of his subordinates was

assigned away from him against his will, and plaintiff’s superior gave him a look of disgust upon

learning of his participation in the protected activity).

In support of her argument that a causal connection has been established through a “pattern

of antagonism,” Plaintiff highlights evidence of purported “discriminatory remarks from

management,” including “resistance and pushback” from DiSanto and Salemi regarding her work-

from-home accommodation; denied overtime due to Plaintiff’s FMLA leave;4 attempts by DiSanto

to “discipline Plaintiff directly in the context of her work-from-home accommodation;” and

general harassing and hostile behavior by DiSanto following Plaintiff’s return from medical leave

and immediately upon the commencement of her work-from-home accommodation. Having

reviewed the evidence, however, the Court finds that no reasonable jury could find a causal

4 Plaintiff argues that Salemi precluded her from working overtime because she was on

FMLA. However, the record is clear that Salemi and DiSanto had concerns about Plaintiff working

overtime to complete work that should have been completed during regular hours. Salemi Dep.,

Pl. Opp. Ex. D at 113:5-114:2; 114:17-23. Notably, documentary evidence also shows that these

overtime issues existed prior to her disability, leave, and accommodation. See Def. SOMF ¶¶

35(d), 38; Alvarez Decl. at Ex. 20.

connection between Plaintiff’s medical leave and subsequent work-from-home accommodations

and her eventual termination.

Initially, Plaintiff relies on email correspondence between DiSanto and Verizon’s Human

Resources Department, as well as testimony from Foeshel regarding Verizon’s internal

impressions of Plaintiff’s work-from-home request, to show a general lack of support from the

company for her accommodations. Specifically, Plaintiff relies solely on an email dated August

16, 2016, from DiSanto to Kelly Cruz (“Cruz”), a member of Verizon’s Human Resources

Department, in which DiSanto wrote that his initial reaction to Plaintiff’s work-from-home

accommodation was “no.” DiSanto Dep., Pl. Opp. Ex. L at 151:16 to 153:13. The record

demonstrates, however, that Plaintiff mischaracterizes this email and that on its face, DiSanto’s

reaction was innocuous. Instead, his initial reaction was founded in legitimate, practical business

concerns related to the proposed work-from-home accommodation, including logistical5 and

performance monitoring concerns. DiSanto Dep., Pl. Opp. Ex. L at 153:18 to 20. Indeed, in the

email to Cruz, DiSanto expressly states that he was “open to hav[ing] [a] conversation [about her

working from home],” so long as a plan existed to address his concerns regarding the inability to

mail and print letters, and the ability to measure, control or report on the progress of Plaintiff’s

work. This sentiment is also consistent with DiSanto’s testimony, in which he explained: “[P]rior

to [Plaintiff] going out [on medical leave], we had difficulties measuring, monitoring and

controlling her work and her performance,” and as such, “if I have that limitation in the office, I’m

5 With respect to logistical concerns, Plaintiff’s job as an Engineer-I often required her to

submit renewals using a specific mode of transport, i.e., US Postal Service, FedEx, or UPS.

DiSanto testified that initially he had concerns about Plaintiff’s ability to access these shipping

providers, particularly given that her medical disability limited her mobility and ability to drive a

car. DiSanto Dep., Pl. Opp. Ex. L at 130:4 to 15.118:3 to 17; see also Foeshel Dep., Pl. Opp. Ex.

K at 67:1 to 68:24.

going to have a further limitation to the ability to measure, monitor and control” with Plaintiff

working from home. Id. at 114:15 to 115:10. DiSanto further testified, and Plaintiff’s performance

reviews corroborate, that Verizon had “difficulties reaching [Plaintiff] on instant messenger when

she was in the office,” and therefore, he was concerned that these same issues would be

exacerbated if Plaintiff worked from home.6 Id. at 119:10 to 18.

Indeed, Plaintiff’s prior performance record, including her year-end reviews from 2012

through 2015, supports DiSanto’s concerns. For example, in 2013, Plaintiff received a

performance rating of “Developing,” which meant that her “[p]erformance did not meet objectives,

requirements and expectations; some or all objectives were not met and improvement is needed.”

Thereafter, approximately one year prior to her medical leave, Plaintiff was placed on a thirty-day

performance improvement plan, because she was ranked 176 out of 180 Telesales Representatives

on Verizon’s Consumer Team. This PIP was then renewed for another thirty-day period in May

2015, after Plaintiff’s rank only marginally improved. Moreover, the record includes numerous

pre-medical leave emails which show a pre-existing pattern of performance-related issues,

including Plaintiff’s failure to submit her timesheet on time, failure to obtain approval before

working overtime, failure to provide appropriate documentation for overtime hours, failure to meet

key performance indicators (“KPIs”),7 and instances of “aggressive” or “disrespectful”

communication. See Def. SOMF ¶¶ 35-38. In one instance, prior to Plaintiff’s medical leave,

DiSanto emailed Verizon’s Human Resources Department in September 2015, stating, in part: “I

6 The Court also notes that it appears Verizon did, in fact, have issues with Plaintiff checking

in, being accessible, and appearing online while working from home during her accommodation

period. DiSanto Dep., Pl. Opp. Ex. L at 130:4 to 15.

7 Regarding the KPIs, an objective metric used by Verizon to track employee performance,

Plaintiff only closed one item in October 2015 and thirty-five between November 19, 2015 and

December 16, 2015, both of which did not meet Verizon’s KPI expectation of five per day. See

Alvarez Decl., Ex. 19 at D-1958, D-2007.

am seeing a continued pattern of behavior where [Plaintiff] is not meeting expectations with the

team nor communicating effectively with the managers and peers.” See DiSanto September 15,

2015 Email, Alvarez Decl. at Ex. 20. In that same email, DiSanto also lists occasions when he

met or had discussions with Plaintiff, as well as several specific concerns surrounding Plaintiff’s

performance. Id. These performance-related issues were the same issues that concerned DiSanto

about Plaintiff’s ability to effectively work from home. Indeed, DiSanto testified that “[e]very

concern that I had before her [medical leave] was the same concern that I had there. There was

nothing transformative about what had taken place. Her working from home was just as

problematic as her working in the office.” DiSanto Dep., Pl. Opp. Ex. L at 120:14 to 18. Thus, it

is clear from the evidence in the record that DiSanto’s apprehensions related to Plaintiff’s

accommodation were based solely on legitimate performance-related concerns, not a hostile or

discriminatory intent as a result of Plaintiff’s medical disability. As a matter of law, Plaintiff

cannot rely on her impression of Defendant’s hostility. Rather, she must present objective

evidence to show that DiSanto’s exhibition of hostility towards her medical leave and

accommodation such that one could raise a genuine issue of material fact. Solomon v. Soc’y of

Auto. Engineers, 41 F. App’x 585, 586 (3d Cir. 2002) (affirming summary judgment because the

only evidence to support Plaintiff’s claim of reverse gender discrimination was his own testimony);

Rouse v. Hudson Cty. Dep’t of Fam. Servs., No. 15-1511, 2019 WL 2083301, at *6 (D.N.J. May

13, 2019).

In addition, Plaintiff emphasizes Foeshel’s testimony that Verizon’s management was

“uncomfortable” with the arrangement for the entire time Plaintiff worked from home, see Foeshel

Dep., Pl. Opp. Ex. K at 77:20-78:2, and that once it became clear that the accommodation was not

going to be temporary, Verizon expressed that it would not support the accommodation long-term.

Id. at 47:12-20; 60:5-63:1-15; 65:21-66:5. This testimony, alone, however, is insufficient to find a

pattern of antagonism, because the record is clear that Verizon approved Plaintiff’s request to

work-from-home, as well as several subsequent extensions of the accommodation, following her

return from medical leave. See Jones v. Serv. Elec. Cable TV, Inc., 809 F. App’x 105, 111 (3d Cir.

2020) (affirming summary judgment on plaintiff’s 2015 retaliation claim and finding that plaintiff

could not show causal connection, noting, inter alia, that “despite any frustrations that Jones’s

supervisors voiced to one another, Service Electric consistently granted Jones’s prior requests for

leave, so we discern no pattern of antagonism”). And, to be sure, when asked whether he ever

questioned Plaintiff’s need for accommodation or the duration of the accommodation, DiSanto

clarified, “[m]y only concern[s] that I ever vocalized were the ability to measure, monitor and

control her work, not the duration [of the accommodation],” “if she needs it and she’s working

with tools and HR, that’s what she should get.” Id. at 124:18 to 125:1; 126:5 to 8. In that same

connection, Tiffany Uriarte, a Senior Human Resources Manager at Verizon during Plaintiff’s

employment, testified that “[A]t some point [Plaintiff’s supervisors] became somewhat indifferent

because her performance was similar whether she was at the office or at home. […] [T]he same

performance concerns existed regardless of where she was working.” Uriarte Dep., Pl. Opp. Ex. E

at 48:17 to 49:4.

Next, Plaintiff claims that DiSanto “made it difficult every single day with the constant

harassment of her.” See Pl. Opp. Br. at 11-12. Specifically, Plaintiff testified that DiSanto

questioned why she could not come to work more days per week, informed her that Salemi felt as

though Plaintiff was “milking the system” by not returning to the office on a daily basis, and that

her relationship with DiSanto changed as a result of her accident and her work-from-home

accommodation. Pl. Dep., Pl. Opp. Ex. B at 156:12-157:23. With respect to their changed

relationship, Plaintiff testified that DiSanto became demeaning, rude, aggressive, abrasive, and

unprofessional toward Plaintiff. Id. at 233:4 to 20; 234:23 to 24; 235:4-236:5; 237:6 to 9.

However, this evidence is undermined by Plaintiff’s own testimony. Indeed, although Plaintiff

initially testified that DiSanto yelled at her, she retreated from that testimony, clarifying that “he

didn’t scream, he just raised his voice to let me know in a stern way.” Pl. Dep., Pl. Opp. Ex. B at

244:8-246:12. Further, Plaintiff testified that DiSanto did not use vulgar language and other

workers similarly complained that DiSanto’s “management style was very barbaric.” Id. at 233:21

to 23; 243:24 to 244:3. Specifically, she admitted that “[e]veryone on the team that [Plaintiff]

worked on, pretty much, experienced David,” see id. at 246:1 to 15, demonstrating that DiSanto’s

attitude and demeanor were products of his personality and management style, rather than a

response to Plaintiff’s medical leave and need for accommodation. Cf. Abramson, 260 F.3d at 288

(holding that an inference of discrimination existed where a supervisor’s demeanor toward the

plaintiff “changed dramatically” after the plaintiff’s complaint). Moreover, regardless of how

DiSanto treated Verizon’s other employees, Plaintiff was subject to several disciplinary actions by

her supervisors prior to her medical leave and accommodations request, and “[a]n employee cannot

easily establish a causal connection between [her] protected activity and the alleged retaliation

when [she] has received significant negative evaluations before engaging in the protected activity.”

Ross v. Gilhuly, 755 F.3d 185, 194 (3d Cir. 2014). Here, Plaintiff can point to nothing else in the

record to substantiate DiSanto’s purportedly rude, harassing, and demeaning behavior toward

Plaintiff, other than her own self-serving opinions and beliefs. Gonzalez v. Sec’y of Dep’t of

Homeland Sec., 678 F.3d 254, 263 (3d Cir. 2012) (finding that “[a]s a general proposition,

conclusory, self-serving affidavits are insufficient to withstand a motion for summary judgment.”).

In fact, Cruz testified that she believed DiSanto “wanted to accommodate [Plaintiff’s] request[,]

but he was concerned about how it was going to work.” Cruz Dep., Pl. Opp. Ex. A at 52:18 to 24.

Accordingly, Plaintiff’s statements, alone, are insufficient to defeat summary judgment,

particularly since on this issue, Plaintiff’s testimony was inconsistent.

Finally, to the extent that Plaintiff points to correspondence from DiSanto to Verizon’s

Human Resources Department in the early stages of Plaintiff’s work-from-home accommodation,

which inquired whether DiSanto could issue a formal written warning to Plaintiff, as evidence of

antagonistic behavior, the Court rejects that argument. See DiSanto Dep., Pl. Opp. Ex. L at 156:2-

158:2. That correspondence is tied directly to Plaintiff’s unsatisfactory job performance both

before her medical leave and in the earlier days of her return to work. Indeed, the email dated

December 15, 2016, from DiSanto to Cruz, shows that when Plaintiff was beginning her work-

from-home accommodation, she already disregarded DiSanto’s instructions and requests. DiSanto

Dep., Pl. Opp. Ex. L at 156:2-161:20; DiSanto Email Dated December 15, 2016, Alvarez Decl. at

Ex. 30. As part of her return to work plan, DiSanto asked Plaintiff to (1) log on to her computer

when she was beginning work (since he could no longer see her physically arrive for work), and

(2) provide him with a daily roll up (a list of work items performed that day). DiSanto Dep., Pl.

Opp. Ex. L at 156:2-161:20. An email exchange between Plaintiff and DiSanto indicated that

Plaintiff did not comply with these requests, and as a result, DiSanto raised the idea to Human

Resources of a formal written warning. Alvarez Decl. at Ex. 30. Notwithstanding DiSanto’s

inquiry, no actual warning was ever even issued. Pl. Suppl. SOMF ¶¶ 27-28. But, even if one had

been issued, Plaintiff cannot rely on it to defeat summary judgment. See McCormick v. Allegheny

Valley Sch., No. 06-3332, 2008 U.S. Dist. LEXIS 8533, at *49-51 (E.D. Pa. Feb. 4, 2008) (“While

Ms. McCormick’s written warning certainly occurred close to the date she requested FLMA leave,

one disciplinary event, i.e., the receipt of written discipline, does not constitute harassment or

antagonism”).

Similarly, around that same time, in December 2016, DiSanto also requested that Verizon’s

Human Resources Department permit him to assign Plaintiff a “Developing” rating on her 2016

Year-End Review. Cruz Dep., Pl. Opp. Ex. A at 57:2-3, 70:3-71:2. While Plaintiff points to this

request as evidence of antagonistic conduct, the Court disagrees. Put simply, there is no evidence

showing that DiSanto’s basis for classifying Plaintiff as “Developing” was because of her medical

leave nor her work-from-home accommodation. Rather, the evidence is quite clear that DiSanto

sought to assign Plaintiff a “Developing” rating based on her unsatisfactory job performance,

which was supported by prior performance evaluations, email correspondence, and the testimony

of DiSanto and Plaintiff’s own version of the facts.

In sum, a reasonable jury could not conclude that a causal link existed between Plaintiff’s

termination and her request for medical leave under the FMLA or ADA, nor her request for

accommodation related to her disability. Rather, the record bore out that Verizon provided

Plaintiff with three months of FMLA leave, as well as an additional three and a half months of

ADA-leave, following her accident. It is also undisputed that Verizon granted Plaintiff’s request

to work from home as a reasonable accommodation to her ongoing medical disability -- an

accommodation which was then extended twice and lasted a total of thirteen months. Stripping

away Plaintiff’s self-serving testimony and impression regarding management’s hostility and the

rude or demeaning conduct of her supervisor, the record is devoid of any evidence that her

termination was a result of her request for leave or accommodation. Rather, Verizon had

considerable performance-based concerns with Plaintiff’s work, which existed in advance of her

disability, such that the company was reasonably apprehensive about the logistics and feasibility

of a work-from-home arrangement. Further, these same performance-based issues continued after

Plaintiff’s medical leave and during her work-from-home accommodation period, culminating in

her termination as part of a reduction in force initiative.8 As a result, Plaintiff cannot establish a

prima facie claim for discrimination and retaliation under the ADA or NJLAD, nor can she

establish a claim of retaliation under the FMLA. Verizon is entitled to summary judgment.

IV. CONCLUSION

For the reasons set forth above, Verizon’s motion for summary judgment is GRANTED.

Dated: July 27, 2021 /s/ Freda L. Wolfson

Freda L. Wolfson

U.S. Chief District Judge

8 The Court also notes that even if Plaintiff established a prima facie case of discrimination

and retaliation under the ADA and the NJLAD and retaliation under the FMLA, Verizon has

presented a legitimate business reason for Plaintiff’s termination, which Plaintiff has not rebutted.

Notably, Plaintiff admits that she was terminated by Defendant as part of a RIF that impacted

hundreds of Verizon employees. Def. SOMF ¶ 80. Indeed, the evidence demonstrates that Verizon

followed the same “Rate and Rank” program and utilized the same neutral business-related criteria

for Plaintiff that it used for all employees to determine who would be negatively impacted.

Specifically, as part of the Rate and Rank process, employees were assigned numerical scores from

1 to 5 in various categories including, but not limited to job performance, skill, technical

knowledge, adherence to company policy and prior corrective actions. Plaintiff and two other

employees from her functional group were selected for the RIF because they scored the lowest in

their respective rate and ranks. With respect to Plaintiff’s functional group, the Rate and Rank

process compared three employees: Plaintiff, Diane Hudack and Gail Sussman. Of these three

employees, Hudack and Plaintiff received the lowest overall scores, and were notified of their

termination unless they found another role within the company. Sussman was not negatively

impacted by the RIF; however, Plaintiff acknowledges that she was not at the same “mastery level”

as Sussman. Pl. Dep., Pl. Opp. Ex. B at 201:12-24. Further undermining Plaintiff’s argument, the

record shows that Sussman and another similarly situated employee, comparable to Plaintiff, had

also taken medical leave during their employment with Verizon; however, neither of those

employees were negatively impacted/terminated by the RIF. Def. SOMF ¶ 84.