Bissell v. Reno

• Citation: 74 F.Supp.2d 521
• Decision Date: 16 November 1999
• Docket Number: No. Civ. AMD 97-1274.,Civ. AMD 97-1274.
• Parties: Mary Linda BISSELL, Plaintiff, v. Janet RENO, Gilbert Brown, and Douglas F. Cureton, Defendants.
• Court: U.S. District Court — District of Maryland

74 F.Supp.2d 521

Mary Linda BISSELL, Plaintiff, v. Janet RENO, Gilbert Brown, and Douglas F. Cureton, Defendants.

No. Civ. AMD 97-1274.

United States District Court, D. Maryland.

November 16, 1999.

COPYRIGHT MATERIAL OMITTED

Christine Saverda Nielson, Towson, MD, for plaintiff.

Tamera Lynn Fine, Assistant U.S. Attorney, Baltimore, MD, for defendants.

MEMORANDUM

DAVIS, District Judge.

The plaintiff, Mary Linda Bissell, a Caucasian woman who is dyslexic, worked from mid-1992 until her resignation in August 1995 as a Computer Operator/GS-6 at the Department of Justice ("DOJ") in the Justice Management Division's Computer Operations Department. She alleges claims under § 501 of the Rehabilitation Act of 1972, 29 U.S.C. § 791, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

Specifically, Bissell alleges that from 1993 until she resigned, DOJ failed to accord her reasonable accommodation for her dyslexia disability in respect to the performance of her duties as a GS-6 Computer Operator, and thereby discriminatorily denied her a promotion to a level GS-7 Computer Operator. In the alternative, she alleges that DOJ failed to accord her reasonable accommodation in respect to her opportunity for promotion to a GS-7 position. In addition, she alleges that DOJ tolerated the actions of a fellow worker, an African-American, who targeted her for harassment because of her race and/or disability, and thereby created a hostile work-place environment. Finally, Bissell alleges that DOJ retaliated against her for filing a complaint with EEOC. Bissell seeks back pay, compensatory damages for pain and suffering and attorney's fees.¹

Pending before the court are DOJ's Motion to Dismiss and/or Motion for Summary Judgment on all counts of the complaint, as well as Bissell's Cross Motion for Summary Judgment. A hearing was held on November 12, 1999. I have considered the parties' arguments, memoranda and exhibits. For the reasons stated below, I shall dismiss the complaint as against the individual defendant supervisors and I shall grant summary judgment to DOJ on all counts. Bissell's cross motion shall be denied.

(i)

Pursuant to Fed.R.Civ.P. 56(c), 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 judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material for purposes of summary judgment, if when applied to the substantive law, it affects the outcome of the litigation. Id. at 248, 106 S.Ct. 2505. Summary judgment is also appropriate when 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 Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

A party opposing a properly supported motion for summary judgment bears the burden of establishing the existence of a genuine issue of material fact. Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505. "When a motion for summary judgment is made and supported as provided in [Rule 56], an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavit or as otherwise provided in [Rule 56] must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). See Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548; Anderson, 477 U.S. at 252, 106 S.Ct. 2505; Shealy v. Winston, 929 F.2d 1009, 1012 (4th Cir.1991). Of course, the facts, as well as the justifiable inferences to be drawn therefrom, must be viewed in the light most favorable to the nonmoving party. See Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The court, however, has an affirmative obligation to prevent factually unsupported claims and defenses from proceeding to trial. See Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987).

When both parties file motions for summary judgment, as here, the court applies the same standards of review. Taft Broadcasting Co. v. United States, 929 F.2d 240, 248 (6th Cir.1991); ITCO Corp. v. Michelin Tire Corp., 722 F.2d 42, 45 n. 3 (4th Cir.1983) ("The court is not permitted to resolve genuine issues of material facts on a motion for summary judgment — even where ... both parties have filed cross motions for summary judgment.") (emphasis omitted), cert. denied, 469 U.S. 1215, 105 S.Ct. 1191, 84 L.Ed.2d 337 (1985).

The role of the court is to "rule on each party's motion on an individual and separate basis, determining, in each case, whether a judgment may be entered in accordance with the Rule 56 standard." Towne Mgmt. Corp. v. Hartford Acc. & Indem. Co., 627 F.Supp. 170, 172 (D.Md. 1985) (quoting Charles A. Wright, Arthur R. Miller & Mary Kay 10A Kane, Federal Practice and Procedure: Civil 2d § 2720). See also Federal Sav. & Loan Ins. Corp. v. Heidrick, 774 F.Supp. 352, 356 (D.Md. 1991). "[C]ross-motions for summary judgment do not automatically empower the court to dispense with the determination whether questions of material fact exist." Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341, 349 (7th Cir.), cert. denied, 464 U.S. 805, 104 S.Ct. 53, 78 L.Ed.2d 72 (1983). "Rather, the court must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration." Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed.Cir.1987). Both motions may be denied. See Shook v. United States, 713 F.2d 662, 665 (11th Cir.1983).

"[B]y the filing of a motion [for summary judgment] a party concedes that no issue of fact exists under the theory he is advancing, but he does not thereby so concede that no issues remain in the event his adversary's theory is adopted." Nafco Oil & Gas, Inc. v. Appleman, 380 F.2d 323, 325 (10th Cir.1967). See also McKenzie v. Sawyer, 684 F.2d 62, 68 n. 3 (D.C.Cir.1982) ("neither party waives the right to a full trial on the merits by filing its own motion"). However, when cross-motions for summary judgment demonstrate a basic agreement concerning what legal theories and material facts are dispositive, they "may be probative of the non-existence of a factual dispute." Shook, 713 F.2d at 665.

(ii)

I shall accept Bissell's account of the facts as true wherever her version of events differs from that relied on by DOJ. While I provide a more complete recounting as I analyze each of Bissell's claims, I summarize the factual context here.

Bissell transferred from a secretarial job in DOJ's Justice Management Division, Bissell I² at 21, and began working in Computer Operations in "approximately 1992." Id. at 159-60. Computer Operations consisted of four areas, located in separate adjoining rooms: Micrographics, Printing, Console and Tape. Cureton I at 19; Brown at 21-26. Computer operators would rotate through each of these four areas, spending generally a week in the Console Area every eight or nine weeks, and somewhat longer periods in each of the other areas. Cureton at 66-67; Bissell II at 129; Brown at 32-33, 37.

The Console Area was the "brain" of Computer Operations. Brown at 26. It was a room with 15 computer monitors, upon which would appear codes indicating problems that operators needed to fix, or commands that operators needed to carry out. Id. at 25-27. Generally, the Shift Supervisor for all of Computer Operations, an Assistant Shift Supervisor and one or two Computer Operators would be assigned to the Console Area at any one time. Brown at 28; Lewis at 12-13. The Shift Supervisors were responsible for the entire staff of Computer Operations, Lewis at 12-13, so one or the other or both were sometimes called into the other areas to assist employees. Bissell I at 83. In addition to the task of responding to the messages displayed on the computer monitors, the duties of the operator assigned to the Console Area included reception for all incoming phone calls to Computer Operations. Bissell I at 623-24.

Bissell began working on the night shift and then transferred some nine months later, "in early to mid-1993," to the day shift. Bissell I at 159-60. In April or May 1993, she had her first evaluation meeting with her supervisors. Cureton I at 83. They informed her that she was performing successfully in all six categories of evaluation, but that her skills on the console needed improvement. Cureton I at 88-90. For the first time in this meeting, Bissell requested extra training on the console as an accommodation of her disability of dyslexia. Cureton I at 83.³

At about this time, her supervisors informed Bissell that she would not be "promoted" from a grade GS-6 to a grade GS-7 Computer Operator. Cureton I at 90. Under the relevant work rules, supervisors were free to "promote" computer operators from a grade GS-6 to a grade GS-7 whenever they concluded that an operator's skills and abilities justified such a "promotion." Upon "promotion," an operator's duties remained the same; however, the "promotion" to grade GS-7 provided at least two important benefits: (1) an increase in pay, and (2) eligibility for further promotions to supervisory positions at GS-8 and above.

Soon after the evaluation meeting, DOJ management requested that Bissell be tested to verify her disability. Cureton I at 45, 48, 51; Brown at 113. Bissell contacted the Maryland Division of Vocational Rehabilitation and was tested.⁴ Bissell II at 181. Bissell presented the results of this testing to DOJ management in March 1994. Cureton I at 147-48; Brown at 141-45. The test results confirmed that Bissell was dyslexic. Brown at...