Richard v. Bell Atlantic Corp., s. CIV.A.96-2168(RMU), CIV.A.99-2380(RMU).

• Decision Date: 27 February 2002
• Docket Number: Nos. CIV.A.96-2168(RMU), CIV.A.99-2380(RMU).,s. CIV.A.96-2168(RMU), CIV.A.99-2380(RMU).
• Parties: Iris RICHARD et al., Plaintiffs, v. BELL ATLANTIC CORP. et al., Defendants. Renee Arrington et al., Plaintiffs, v. Bell Atlantic Corp. et al., Defendants.
• Court: U.S. District Court — District of Columbia

209 F.Supp.2d 23

Iris RICHARD et al., Plaintiffs, v. BELL ATLANTIC CORP. et al., Defendants.

Renee Arrington et al., Plaintiffs, v. Bell Atlantic Corp. et al., Defendants.

Nos. CIV.A.96-2168(RMU), CIV.A.99-2380(RMU).

United States District Court, District of Columbia.

February 27, 2002.

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John W. Hermina, George W. Hermina, Hannibal G. Kemerer, Hermina Law Group, Laurel, MD, for Plaintiffs.

Vincent H. Cohen, Harry T. Jones, Jr., Hogan & Hartson, L.L.P., Washington, DC, for Defendants.

MEMORANDUM OPINION

DENYING IN PART AND GRANTING IN PART THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON THE CLAIMS OF PLAINTIFF DENISE WALTON

URBINA, District Judge.

I. INTRODUCTION

These race-discrimination and retaliation cases began with 132 current and former employees of Bell Atlantic Corp. (now Verizon) suing their employer and its subsidiaries (collectively, "the defendants" or "Bell Atlantic") under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), and 42 U.S.C. § 1981. Although the court has not consolidated these two cases, they have been mediated and briefed together because of the similarity in claims, counsel, and parties.¹ Through the diligence and persistence of the parties, the lawyers, and an Alternative Dispute Resolution firm, 132 plaintiffs became three.

On September 7, 2001 and September 14, 2001, this court issued Memorandum Opinions and Orders on the claims of two of the three remaining litigants. See Richard v. Bell Atlantic, 165 F.Supp.2d 1 (D.D.C.2001); Richard v. Bell Atlantic, 167 F.Supp.2d 34 (D.D.C.2001). In these Memorandum Opinions, the court granted the defendants' motion for summary judgment on all claims of Kay Young and Carolyn Green. See id. On September 24, 2001, at the parties' request, the court issued an order briefly staying the proceedings in this matter to give the parties additional time to reach a settlement on the claims of the one remaining plaintiff, Denise Walton. See Order dated September 24, 2001.

In early January, 2002, the parties informed the court that they could not reach a settlement and the court lifted the stay on the litigation. The court now turns to the defendants' motion for summary judgment on all claims of Denise Walton ("the plaintiff" or "Ms. Walton"). For the reasons that follow, the court will deny in part and grant in part the defendants' motion.

II. BACKGROUND

At the time of her termination on May 17, 1996, Ms. Walton, an African-American, had been a Bell Atlantic employee for more than 20 years. See Compl. ¶ 172; Pl.'s Opp'n to Mot. for Summ. J. ("Pl.'s Opp'n") at 2. During her tenure with Bell Atlantic, Ms. Walton held several different positions. She served as a General Clerk from 1987-1989 before a promotion to Service Representative on July 8, 1989. See Defs.' Mot. for Summ. J. ("Mot. for Summ. J.") at 3; Walton Dep. at 11. On November 27, 1993, the company promoted Ms. Walton a second time, to the position of Service Technician, where she served until the company fired her in 1996. See Mot. for Summ. J. at 3; Walton Dep. at 14-15.

On December 28, 1994, while employed as a Service Technician, Ms. Walton suffered an on-the-job injury when an unsecured shelf fell on her, injuring her head, neck, and shoulder. See Mot. for Summ. J. at 3; Walton Dep. at 18. The injury caused Ms. Walton to miss work from January 4, 1995 until July 5, 1995, when she returned to work on "light duty." See Mot. for Summ. J. at 4; Walton Dep. at 50. On September 15, 1995, Ms. Walton suffered a relapse of her injury, causing her to miss work until May 8, 1996. See Mot. for Summ. J. at 4; Walton Dep. at 27-29. The nature of the injury and the amount of work missed resulted in a dispute between Ms. Walton and Bell Atlantic's Health & Safety Management Center. See Mot. for Summ. J. at 5. During this dispute, Ms. Walton received a letter notifying her that if she did not return to work, the company would fire her for abandoning her job. See Mot. for Summ. J. at 5 (citing Def. Ex. 12); Walton Dep. 64-65, 67. Because of the dispute, Ms. Walton's supervisor recorded her absence from work as "time excused without pay." See Mot. for Summ. J. at 5 (citing Def. Ex. 16).

On April 30, 1996, Ms. Walton's physician notified Bell Atlantic that Ms. Walton could return to work on May 1, 1996, subject to specific restrictions such as no lifting, bending, or exposure to cold temperatures. See id. at 6 (citing Def. Ex. 17). In addition, the doctor's orders restricted Ms. Walton from driving for longer than 15 minutes at a time. See id. at 7 (citing Def. Ex. 21). At this time, the company again notified Ms. Walton that if she did not return to work by May 8, 1996, it would fire her for abandoning her job. See id. at 6 (citing Def. Ex. 18); Walton Dep. at 76-77. Ms. Walton did return to work on May 8, 1996 and immediately notified her supervisor that because of her driving restriction she did not have adequate transportation to work and would therefore miss work on May 10.² See id. Ms. Walton did not appear at work after May 10, 1996 and the company fired her on May 17, 1996. See id. at 7 (citing Def. Ex. 24).

The parties dispute the reason for the termination. Ms. Walton claims that Bell Atlantic discriminated against her because of her race "by failing to make an accommodation for her disability." See Pl.'s Opp'n at 3. Specifically, Ms. Walton claims that not only did she request an assignment closer to her home that the company denied, but also that Bell Atlantic accommodated a white employee, also on disability, and did not terminate her. See id. at 4-5. The defendants deny these allegations, asserting that they properly terminated Ms. Walton for job abandonment. See Mot. for Summ. J. at 10. The defendants state that they informed Ms. Walton that a transfer to a location closer to home was not "immediately possible." See id. at 9. The defendants declare that Bell Atlantic accommodated Ms. Walton's work restrictions while she was at work, but admit that they did not try to accommodate her disability during her commute to and from work. See id. at 9. The defendants submit that they are not required by law to make accommodations for an employee's commute to and from work. See id. at 10. Finally, the defendants dispute the claim that they treated a similarly situated white employee differently than Ms. Walton. See id.

In addition to her discriminatory termination claim, Ms. Walton makes several other allegations against Bell Atlantic. First, Ms. Walton claims that she was subjected to numerous actions that created a hostile work environment, which would never have occurred had she been white.³ See Pl.'s Opp'n at 6. Second, Ms. Walton alleges that her failed applications for Central Office Technician ("COT") positions constitute a discriminatory failure to promote. See id. Ms. Walton claims that she sat for the required Electronic Systems Minicourse ("ESMC") examination and received a qualifying score. See id. According to Ms. Walton, however, Bell Atlantic never contacted her for any interviews. See id. In addition, Ms. Walton charges that "she is aware of white individuals who were promoted to COT during the period when she was qualified." Id. (citing Walton Dep. at 109). Finally, Ms. Walton claims that the defendants discriminatorily denied her on-the-job training on the basis of her race. See Compl. ¶ 173.

Bell Atlantic denies all these allegations. In brief, the company argues that Ms. Walton's claims fail to meet the legal standard for a hostile work environment, that the statute of limitations bars her claims regarding the denial of promotions, that she did not receive a qualifying score on the ESMC, and that, to the extent Ms. Walton sought promotions to management, she did not take the proper tests required at the time.⁴ See Mot. for Summ. J. at 11-15. Finally, in terms of the discriminatory denial-of-training claim, Bell Atlantic contends that Ms. Walton makes no specific allegations about similarly situated white individuals who received training that she did not. See id. at 16.

The defendants now move for summary judgment on all claims of Denise Walton.

III. ANALYSIS

A. Legal Standard

Summary judgment is appropriate when "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 a judgment as a matter of law." FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C.Cir.1995). To determine which facts are "material," a court must look to the substantive law on which each claim rests. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. See id. at 252, 106 S.Ct. 2505. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party "fail[ed] 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." See Celotex, 477 U.S. at 322, 106 S.Ct. 2548. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. See id....