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December 21, 1983


The opinion of the court was delivered by: GREEN

JUNE L. GREEN, District Judge:

 Plaintiff Gwyneth Y. Hughes, a black female, brought this action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq., and 42 U.S.C. § 1981, *fn1" alleging that her employer, Chesapeake and Potomac Telephone Company ("C & P") discriminated against her on the basis of her race by denying her an opportunity to take part in C & P's Mobility Application Plan, by denying her an opportunity to be transferred or reassigned to a position where she could do a combination of sitting, standing, and walking as recommended by C & P's Medical Department on September 2, 1981, and by forcing her to resign on October 19, 1981.

 A trial was held in this matter on December 9, 12, and 13, 1983. The Court heard testimony from the following witnesses: Gwyneth Y. Hughes; Ruth Caul, Group Manager, Operator Services at C & P; Shirley Montes deOca, Assistant Staff Manager at C & P; Linda Spencer, Manager, Operator Services at C & P, and Richard H. Shelley, District Staff Manager in charge of the Universal Directory Assistance Office at C & P. The Court submitted the section 1981 claim to the jury which found in favor of plaintiff and awarded her $7,000 in damages.

 After the jury was excused, defendant made a motion for judgment notwithstanding the verdict, pursuant to Rule 50 of the Federal Rules of Civil Procedure. The Court granted defendant's motion for judgment notwithstanding the verdict on plaintiff's section 1981 claim. Viewing the evidence in the light most favorable to plaintiff and giving her the advantage of every fair and reasonable inference justified by the evidence, see, e.g., Metrocare v. Washington Metropolitan Area Transit Authority, 220 U.S. App. D.C. 104, 679 F.2d 922, 924-25, 28 FEP Cases 1585 (D.C. Cir. 1982), the Court found that only one reasonable conclusion could be drawn from the evidence, i.e., that plaintiff was asked to resign or be terminated on October 19, 1981, not because of any racial animus on the part of C & P, but because of her unsatisfactory attendance record. The evidence does not show that C & P's actions with regard to plaintiff were motivated by purposeful race discrimination. General Building Contractors Association v. Pennsylvania, 458 U.S. 375, 390-91, 29 FEP Cases 139, 73 L. Ed. 2d 835, 102 S. Ct. 3141 (1982). Because the evidence does not establish a claim under section 1981, the Court granted defendant's motion for judgment notwithstanding the verdict. The Court also ruled that plaintiff had failed to carry her burden of proof under Title VII.


 In September 1980, Ms. Hughes began working at C & P of Maryland as a Directory Assistance Operator on a computerized switchboard system. In November 1980, plaintiff transferred to C & P in Washington, D.C., and was employed as a Directory Assistance Operator in the Universal Directory Assistance Office until October 19, 1981. C & P is a New York corporation doing business in the District of Columbia as a public utility providing telecommunication services.

 Plaintiff's supervisor during her tenure with C & P was Ms. Shirley Montes deOca, a white female. Ms. Linda Spencer, a white female, was plaintiff's second level supervisor and Mr. Richard H. Shelley, a white male, was her third level supervisor.

 C & P has an attendance policy that applies to all of its employees. Under this policy, an employee absent from work for more than twelve days during a twelve-month period is rated "unsatisfactory" in attendance. Absences caused by illness are counted against an employee's attendance record even if the employee obtains a doctor's letter.

 Between November 3, 1980, and October 19, 1981, plaintiff was absent from work a total of seventy and one-half days. Plaintiff was absent from February 2, 1981, to March 23, 1981, due to a flare-up of her back trouble. Plaintiff sustained a chronic back injury in an automobile accident in 1976. From March 23, 1981, to April 24, 1981, plaintiff worked part-time. She was charged with absences for the portions of the days she did not work full time or seven and one-half hours. Plaintiff also was absent from May 23, 1981, to June 29, 1981, due to an ectopic pregnancy, which required surgery. Finally, plaintiff was absent for two and one-half days in September 1981, and two days in October 1981.

 C & P attempted to accommodate plaintiff's chronic back problems. When plaintiff returned to work part-time in March and April 1981, she was allowed to leave her operator's station and stretch for five minutes every hour. In May 1981, plaintiff was given a temporary position in Mr. Shelley's office where she performed clerical duties while his secretary was on vacation. Although this position enabled plaintiff to get up and move around more freely than did the operator's position, Mr. Shelley indicated that her performance was "mediocre." In late May, plaintiff began a second extended period of absence and did not return to work until late June 1981.

 On July 7, 1981, Ms. Montes deOca put plaintiff on final warning because she had been absent from work for sixty-six days since November 1980. Plaintiff was advised that her attendance record was unsatisfactory and that she had to "improve or be suspended and or dismissed." Defendant's Exhibit 11. During this meeting, plaintiff indicated that she understood she was on final warning.

 In July 1981, C & P also compiled its "High Absence List." This list is compiled twice annually and indicates those employees that have unsatisfactory absence records. Plaintiff had the worst attendance record of any employee in Mr. Shelley's district. At that time, Mr. Shelley had supervisory authority over approximately 325 employees.

 C & P's Medical Department conducted physical examinations of plaintiff on July 30, 1981, and September 1, 1981. Plaintiff's back problem was determined to be aggravated by the postural requirements of her job as an operator. On September 2, 1981, C & P's Medical Director, Dr. Siza I. Mekky, issued a report, indicating in pertinent part:

It is the opinion of the Medical Dept. that Ms. Hughes be assigned a different job where she can do a combination of sitting, standing, and walking and be able to change positions as tolerated by her chronic ailment.
The prognosis for the future absenteeism if she remains as an operator is uncertain. Physically she should not do prolong [sic] sitting.

 Plaintiff's Exhibit 3.

 After Mr. Shelley received this report, he notified the Reasonable Accommodations Committee, to see if they could find another position for plaintiff. This Committee is a branch of Personnel which attempts to find new positions for employees with poor records. In late September, Mr. Shelley was informed that the Committee could not arrange a transfer for plaintiff.

 C & P also administers a program called the Mobility Application Plan ("M.A.P."). Under the M.A.P., employees are informed about career opportunities in the company and the necessary qualifications for specific positions. Any employee who wishes to learn about other jobs in the company may request such information from his or her immediate supervisor. Supervisors are required to furnish this information promptly. Plaintiff's Exhibit 20, Mobility Application Plan at para. 3.11. To be eligible for ...

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