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August 13, 2002


The opinion of the court was delivered by: Spatt, District Judge


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 Local 153.


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 indemnity.

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 transactions.

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 Expediting Department.

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 ladders constantly.

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.

Because Covello had periodically acted as a COD Clerk, Smith, her supervisor. believed the new position would be a natural progression for Covello. Between August 1997 and November 10, 1997, Covello performed the tasks required by her new position without complaining to her supervisors at Depository Trust. She never gave Smith any indication that she was suffering from an ankle condition that limited her physical abilities. However, in papers she submitted to the Court, Covello states that she began experiencing extreme pain in her left ankle in the summer of 1997.

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 fracture."

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 limitation.

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 that she was unable to perform the climbing function of her job due to an ankle injury.

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 ...

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