MS Alone Not Grounds for Discrimination Claim

January 14, 2004 ( - Early-stage multiple sclerosis (MS) that is not found to affect major life activity, coupled with an employee's record of poor performance, does not point to signs of discrimination when the employee was terminated.

>US District Judge Legrome Davis of the US District Court for the Eastern District of Pennsylvania found the employer – Bell Atlantic Corp. – had a documented, long history of non-discriminatory complainants against the plaintiff – Louis Yudkovitz.   Bell Atlantic’s legitimate reasons for Yudkovitz’s dismissal, and the plaintiff’s failure to rebut the company’s reasoning, led to summary judgment on behalf of Bell Atlantic, according to a report in The Legal Intelligencer.

“There is nothing in the record to suggest that Yudkovitz’s condition played any role in [the employer’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,” the court said in the opinion in Yudkovitzv. Bell Atlantic Corp.

In fact, the plaintiff did not tell Bell Atlantic about his MS condition until April 2000, more than one month after Yudkovitz was placed on a performance improvement plan (PIP).  “That Yudkovitz’s termination came within weeks of his disclosure, standing alone, is not sufficient evidence of pretext,” the court ruled .

Perhaps more significant was Davis’ determination in the opinion that early-stage multiple sclerosis – Yudkovotz’s condition – that causes annual “flare-ups” does not qualify as a disability under the American with Disabilities Act (ADA) without proof that the condition substantially impaired a major life activity.

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.   This came after Yudkovitz’s lawyer 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.”

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.”

Similarly, Davis 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 [Bell Atlantic] noticed Yudkovitz walked with a ‘slight limp’ or knew of his physical impairment does not demonstrate that it perceived Yudkovitz as being disabled,” Davis penned.

All of which was for naught Davis said.   E ven if Yudkovitz could have made out a prima facie case of discrimination, the court found, thecase still failed to satisfy the burden to rebut the company ‘s explanation that he was fired for poor job performance.