The opinion of the court was delivered by: Spatt, District Judge
AMENDED MEMORANDUM OF
DECISION AND ORDER
On July 21, 1999, Jean Covello ("Covello" or the "plaintiff') filed an
amended complaint in which she alleges that the Depository Trust Company
("Depository Trust" or a "defendant"), her former employer, discriminated
against her on the basis of a disability in violation of the Americans
With Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. ("ADA").
The amended complaint also contends that Local 153, Office and
Professional Employees International Union, AFL-CIO ("Local 153" or a
"defendant") breached the duty of fair representation owed to her
pursuant to Section 301 of the Labor Management Relation Act of 1947
("LMRA"), 29 U.S.C. § 185. Presently before the Court are two motions
for summary judgment, one filed by the Depository Trust and the other by
A. As to the Claims Against Depository Trust
The following facts are undisputed unless otherwise indicated.
Depository Trust is a large securities depository that acts as a national
clearinghouse and as a custodian of over $20 trillion of securities for
its participant banks and broker-dealers. Depository Trust has a main
office in New York, New York, and a satellite office in Garden City, New
York. At the Garden City location, the company maintains a Registered
Vault in which securities are processed and stored.
Covello worked for Depository Trust from October 1987 until May 1998,
during which time she worked in the Garden City office. Throughout her
employment Covello was a member of Local 153. Accordingly, the terms and
conditions of her employment were governed by a collective bargaining
agreement ("CBA") between Depository Trust and Local 153.
In January 1987, prior to her employment by Depository Trust, the
plaintiff fractured her left ankle and required "open reduction and
internal fixation surgery," which means that metal hardware was inserted
into her leg to stabilize her ankle.
From 1987 until 1990, Covello worked as a Clerk in the Clipping
Department of the Bearer Vault. In this position, she removed coupons
from bearer bonds and prepared them for further processing.
From 1990 to 1992, Covello worked as an Intermediate Clerk in the
Verification Department of the Bearer Vault. Her responsibilities
included receiving bearer coupons from the coupon clipping department;
proofreading the coupons and envelopes; counting the coupons; calculating
the dollar values; and preparing the mutilated coupons for letters of
In January 1991, Covello had a second surgery on her ankle, during
which the metal hardware was removed. She was permitted a paid leave of
absence, and returned to work approximately six weeks after the surgery.
From 1992 through the summer of 1997, Covello worked in the Expediting
Department of the Registered Vault as an Intermediate Clerk. During this
time, her responsibilities included answering telephone calls from banks
and brokerage houses; requesting inventory from the Philadelphia
Depository; monitoring vault reports; completing paperwork; performing
various recordkeeping tasks; and comparing certificates and
In the summer of 1997, Covello's position as an Intermediate Clerk in
the Expediting Department was phased out due to the merger of Depository
Trust and the Philadelphia Depository. Meanwhile, a person who was
working as a Certificate on Demand ("COD") Clerk transferred to the New
York City office. Therefore, on July 31, 1997, Eugenia Smith ("Smith"),
Covello's supervisor, informed the plaintiff that she would be
transferred to the position of COD Clerk, which was a job within the
The principal functions of a COD Clerk are research; microfilming
securities; preparing route slips; keeping logs; stamping certificates
with endorsements; and using the computer. of these responsibilities, the
primary one is research. When a brokerage house or bank calls to request
securities certificates, the COD Clerk locates the securities within the
Registered Vault. The vault contains millions of securities certificates
that are stored in open-shelved wall units that rise fourteen feet into
the air. The COD Clerk retreives the securities certificates from the
higher shelves by using platform staircase ladders. The Depository Trust
maintains that the staircase ladders are approximately eight feet high,
have deep steps, secure handrails, locking wheels, and a platform on
their top level. Covello states that some of the ladders are broken, have
bent frames, and have been taped. She also comments that COD Clerks climb
Between 1995 and 1997, Covello occasionally performed the tasks of a
COD Clerk when their workload was heavy. On these occasions, she used the
staircase ladders without an incident. She never stated that she was
unable to perform the research function of the job due to her ankle.
In a note dated August 28, 1997, Dr. Harcharan K. Bhatia wrote that the
plaintiff "is under my medical care and has been advised not to climb
stairs or ladders." In a note dated October 9, 1997, Dr. Harvey Levine,
an orthopedist wrote that Covello is "unable to climb at work because of
degenerative arthritis in the left ankle 5 years after surgery for
From September 1997 to November 1997, Covello asked the Human Resources
Administrator for assistance in obtaining a transfer to a different
position in the Garden City office. There were no vacant available
positions for which Covello was qualified. There may have been vacancies
in the New York City office, but Covello did not want to commute to
Manhattan. Covello also asked Smith to transfer her to another position,
but Smith did not assist her.
Smith believed that Covello's performance as a COD Clerk was not
satisfactory during the period from August 1997 to November 1997. On two
occasions in October 1997, Smith spoke with Covello about the quality of
her work. Smith focused on Covello's failure to follow-up on
assignments, failure to communicate the status of her work, and failure
to prioritize her tasks. During these discussions, Covello never
mentioned that her performance was affected by a physical condition or
In November 1997, the plaintiff was still experiencing severe pain in
her left ankle. She testified at her deposition that, "The longer I stood
on my feet the more painful it was. And it caused me to be a little bit
slower in walking." Covello met with Deirdre O'Connell in Human
Resources, who gave her a Family Medical Leave Act certification form
which was completed by Dr. Levine. On November 3, 1997, Dr. Levine wrote
that Covello suffered from "Degenerative arthritis of the left ankle.
Patient experiences severe exacerbation of symptoms upon excessive
ambulation and climbing stairs, climbing ladders should strongly be
avoided." Dr. Levine also wrote that Covello's condition commenced
several years earlier and had an indefinite duration. Dr. Levine stated
that Covello "is advised not to climb ladders at work." He did not write
anything in the section on the form that allows doctors to set forth the
patient's treatment program.
In a written annual performance evaluation given to Covello on November
6, 1997, Smith gave Covello an overall rating of "Needs Improvement."
This was Covello's first unfavorable review during her ten years with
Depository Trust, and on the same day, November 6, 1997, Covello
submitted a four-page rebuttal to it. In the rebuttal, Covello explains
her inability to meet performance standards by stating that "my two
co-workers have been in the COD area longer then I have been"; "I am
trying to learn as much as I can within the short time I have been doing
COD's"; "I am trying not to make any errors"; "I feel I am trying to do
the best I can under sometimes difficult circumstances"; "due to the
unreasonable production sheet, which I feel needs to be simplified, I may
not be given credit for everything I do"; "I have never been the cause of
any failed delivery"; "I feel I do not have a good working relationship
with . . . Smith, who at times is unapproachable"; and "I feel that Genie
Smith sometimes lets her personal feelings take over and cannot give a
fair evaluation". Covello's November 6, 1997 rebuttal does not mention
was unable to perform the climbing function of her job due to an ankle
On November 7, 1997, Covello submitted the August 28, 1997 and October
9, 1997 notes from Dr. Bhatian and Dr. Levine to an unidentified
individual at Depository Trust.
On November 10, 1997, Smith and one Patrick O'Donnell ("O'Donnell"), a
manager and Smith's superior, met with Covello to discuss her
evaluation. O'Donnell said that Covello's rebuttal demonstrated that she
was still learning the new responsibilities of her job. Therefore, he
offered to set aside the poor performance evaluation and to re-evaluate
her in six months, so she would have more time to learn the skills
associated with her new job.
Covello responded to O'Donnell's offer by stating that she could not
perform her job because it involved a great deal of climbing on the
staircase ladders, and her doctors had advised her not to do any climbing
at work. Covello also handed O'Donnell the Family and Medical Leave Act
form prepared by Dr. Levine, as well as the two notes from her doctors.
O'Donnell informed Covello that although there were no available
positions in Garden City, the New York City office might have vacancies.
O'Donnell then adjourned the meeting. Prior to this meeting, neither
Smith nor O'Donnell was aware that Covello had problems with her left
ankle that prevented her from climbing ladders at work.
O'Donnell consulted Depository Trust's labor relations department about
Covello's medical condition and was advised to place her on a medical
leave of absence. Smith informed Covello that since she could not perform
her job, she must go home until her doctors told her she could do her job
or another situation could be worked out.
Pursuant to the terms of the collective bargaining agreement, Covello
was paid during her leave of absence. She also received all of the
benefits she would have received had she continued to work, including her
1997 year-end bonus. In addition, her position was left open so that she
could return to work if she obtained medical clearance.
The collective bargaining agreement also provides that any employee who
is on medical leave for more than six months, and who is not receiving
benefits pursuant to Depository Trust's long-term disability benefit
policy, will be terminated. On April 15, 1998, Depository Trust provided
Covello with the long-term disability forms, and advised her that in
order for her to remain out of work beyond the six-month shortterm
disability leave, she had to qualify for long-term disability benefits.
Covello was also informed that if she did not qualify for long-term
disability benefits, she had to return to work on May 11, 1998.
Covello did not return to work, reply to Depository Trust's
correspondence, or request an extension of her medical leave period. In
addition, Covello did not apply for long-term disability benefits because
she did not view herself as being sick or disabled. She testified that
her doctor did not want to complete the ...