Bridget Holmes-Mergucz v. Cellco Partnership

• Court: Court of Appeals for the Third Circuit
• Decided: October 31, 2022
• Docket: 21-2617
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 21-2617 _______________

BRIDGET HOLMES-MERGUCZ, Appellant v.

CELLCO PARTNERSHIP, d/b/a VERIZON; ECKERT, SEAMANS, CHERIN & MELLOTT LLC _______________

On appeal from the United States District Court for the District of New Jersey (D.C. No. 3:18-cv-11816) U.S. Chief District Judge: Honorable Freda L. Wolfson _______________

Submitted Under Third Circuit L.A.R. 34.1(a) on September 15, 2022

Before: KRAUSE, BIBAS, and RENDELL, Circuit Judges

(Filed: October 31, 2022) _______________

OPINION* _______________

BIBAS, Circuit Judge.

Bridget Holmes-Mergucz worked for Verizon. She was a poor employee: She missed

deadlines, fell short of quotas, and dissatisfied customers. She came off as unprofessional

* This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent. and combative over the phone and in meetings, sparking complaints by her peers. Plus, she

often worked unapproved overtime and left work early. In 2015, she was ranked 176th out

of 180 customer-service representatives. Her productivity was much too low and her error

rate way too high. So she was often put on plans to improve her performance.

In May 2016, Holmes-Mergucz was seriously injured in a car accident. Verizon gave

her medical leave from work and then, starting in December, a work-from-home accom-

modation. But she kept making errors, missing deadlines, and disrespecting both clients

and colleagues. In mid-2017, Verizon again put her on an action plan to improve.

In late 2017, Verizon sought to cut costs by firing its lowest-scoring employees. As part

of this downsizing, it fired Holmes-Mergucz. Her division was one of two selected by her

boss for layoffs. Of the three employees in her division, she and one other were cut. She

now sues, claiming disability discrimination and retaliation. The District Court granted

summary judgment for Verizon. Holmes-Mergucz v. Cellco P’ship, 2021 WL 3163985, at

*9–10 (D.N.J. July 27, 2021). We review de novo, drawing every reasonable inference in

her favor. Crosbie v. Highmark Inc., 47 F.4th 140, 144 (3d Cir. 2022). Because there is no

genuine factual dispute over causation or pretext, we will affirm. Fed. R. Civ. P. 56(a).

Holmes-Mergucz relies on circumstantial rather than direct evidence. Thus, as the par-

ties agree, her claims are governed by the familiar three-step burden-shifting framework

under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801–05 (1973). See Canada v.

Samuel Grossi & Sons, Inc., 49 F.4th 340, 346–49 (3d Cir. 2022). At step one, her prima

facie case fails for lack of causation. Her firing came two months after her last request to

extend her disability accommodation. That was not suspiciously close in time, particularly

2 because her first request came more than a year earlier. See, e.g., Thomas v. Town of Ham-

monton, 351 F.3d 108, 114 (3d Cir. 2003) (holding that a three-week interval was not un-

duly suspicious). And she was fired as part of Verizon’s blanket decision to cut costs, which

had nothing to do with her injury. She tries to patch this hole by claiming that, after she

started working from home, her bosses showed a pattern of antagonism. But the District

Court adeptly dissected and rejected each of her conclusory, self-serving claims of antag-

onism. 2021 WL 3163985, at *6–9. We need not duplicate that analysis here.

Even if Holmes-Mergucz made out a prima facie case, she would still fail at step three.

At step two, Verizon gave a legitimate reason for firing her: she was not good enough at

her job to survive the company-wide cost cutting. So at step three, she must show that this

explanation was pretextual. She cannot. She has neither directly rebutted Verizon’s expla-

nation nor produced evidence beyond her prima facie case. Verizon’s neutral policy and

her poor performance explain her firing. Her low rating included her objectively poor out-

put, error rate, and company-wide rank, plus being on improvement plans. All of these

were persistent problems before her injury. Indeed, even she admits that she was less

skilled than the sole employee in her division who was kept on. That admission alone sinks

her already leaky argument. Cf. Ross v. Gilhuly, 755 F.3d 185, 193–94 (3d Cir. 2014) (find-

ing plaintiff’s pretext argument “belied by the record” because he had “admitted to his sub-

par performance”).

*****

Holmes-Mergucz suffered twice, first in a car crash and then being fired. Both hardships

were surely difficult. But especially considering her poor job performance before her

3 injury, no reasonable jury could conclude that Verizon would have made a different deci-

sion if she had never asked for disability accommodations. Cf. Sarullo v. U.S. Postal Serv.,

352 F.3d 789, 801 (3d Cir. 2003). So the District Court correctly granted summary judg-

ment. We will affirm.