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June 7, 1985


Penn, J.

The opinion of the court was delivered by: PENN

The plaintiff filed this action pursuant to the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. She contends that the defendant discriminated against her because of her race (black) and her sex.

 Plaintiff alleges that she was employed by defendant for a period of nine years and that on or about May 1, 1983, she was involved in an automobile accident which resulted in her hospitalization for serious bodily injury. She states that, by virtue of her employment with the defendant, she was entitled to health benefits that included medical coverage and similar pay benefits and that the defendant demanded medical records from the plaintiff which it did not demand of other persons similarly employed, persons who are male caucasians. Complaint para. 9. She further contends that the defendant denied her medical and sick pay benefits because of her race and sex and that the defendant retaliated against her by suspending her and thereafter terminating her employment on August 25, 1983.

 The case is now before the Court on defendant's motion for summary judgment.


 The underlying facts are as follows: The plaintiff was employed by the defendant as a Customer Service Representative in the Customer Credit Department for approximately nine years. Defendant's Statement of Undisputed Facts (Defendant's Statement) para. 1. On or about May 1, 1983, she was involved in an automobile accident in which the driver of the other automobile was killed. Id. para. 2. As the result of that accident, the plaintiff received serious injuries for which she was hospitalized. Id. para. 3. The plaintiff applied for and received such pay as was provided for by Article 13 of the Agreement between the defendant, Potomac Electric Power Company (PEPCO) and Local 1900 of the International Brotherhood of Electrical Workers (Agreement). Id. para. 4. and Motion Exhibit 2 (Wolverton Affidavit, Attachment E.)

 Shortly after the accident, a PEPCO employee read a newspaper article which reported that plaintiff was intoxicated while driving on the day of the accident. Id. para. 5. On July 13, 1983, the plaintiff was contacted by a representative of the defendant and told to release the medical records containing her level of intoxication at the time she was taken to the emergency room after the accident. Id. para. 6. Mr. Wolverton, the Manager of Industrial Relations at PEPCO was advised by one employee of PEPCO that a newspaper article had reported that the plaintiff had been drinking at the time of the accident, and another employee had reported that her husband had been at the scene of the accident and had seen "a lot of beer cans" there. *fn1" The plaintiff was given until July 18, 1983, to produce the necessary report or to sign a release which would allow the defendant to have access to the report. Wolverton Affidavit para. 6. Mr. Wolverton spoke with the union representative on July 18, 1983, and explained why PEPCO requested the report. Id. para. 7. When the plaintiff did not sign the release or produce the report by July 18th her disability pay was discontinued. Id. para. 8. The Union filed a grievance on July 19, 1983, in which it protested the termination of disability pay and on July 20, PEPCO suspended the plaintiff for one day for her continued refusal to sign a medical release. Id. para. 9 and Attachments B and C. On July 28, 1983, Wolverton spoke with the plaintiff on the telephone and explained why PEPCO was seeking medical records concerning her blood alcohol level on the day of the accident. He explained that under the terms of the collective bargaining agreement, employees are ineligible for sick leave if they are injured due to "general acts of misconduct". He advised her that if her state of intoxication led to her injury, PEPCO felt she would not be entitled to sick leave. Id. para. 10. The plaintiff became belligerent and stated that she was refusing to provide the information on the advice of her doctor and lawyer. Wolverton informed her that, due to her failure to supply the information, he was preparing a Notice of Disciplinary Action suspending her for three days. Id. para. 11.

 On August 1, 1983, the plaintiff was suspended for three days and warned that she was likely to be terminated if she persisted in her refusal to provide the information. Id. para. 12 and Attachment D. PEPCO instituted its procedures for termination under Article 16 of the Agreement on August 17, 1983. Plaintiff was suspended for a period of five days during which she could seek a hearing. Such a hearing was held on August 23, 1983, at which plaintiff was represented by the Union. Id. para. 13. On September 2, PEPCO decided that the plaintiff should be terminated. Id. para. 14. The Union exercised its right to demand arbitration on September 9, 1983. Id. para. 15. On September 14, 1983, the plaintiff filed a charge of discrimination alleging that she had been discriminated against because of her race and sex. The Union demanded arbitration under the American Arbitration Association Expedited Labor Arbitration Rules on December 7, 1983. Id. para. 17.

 Arbitration was held in September 1984, in a hearing that lasted five days, during which the arbitrator heard the sworn testimony of plaintiff, her supporting witnesses, and witnesses called by the defendant. Id. para. 18. On October 5 the arbitrator issued a decision finding that PEPCO had just cause to terminate the plaintiff due to her refusal to supply the medical information. Id. para. 19 and Attachment E. *fn2"

 The company "frequently" asks employees to submit medical evidence in support of their claim for sick pay and other medical benefits, and it is believed that no other employee has refused to supply this information to the point where discipline was necessary. Id. para. 20.

 At the time the plaintiff was present at the fact finding conference held by the Equal Employment Opportunity Commission, she denied that she had been drinking at the time of the accident which resulted in her injuries. Id. para. 5. During the nine years the plaintiff was employed by PEPCO, she received at least fourteen formal disciplinary actions for various kinds of conduct involving dishonesty, rudeness and excessive absenteeism. Id. para. 6.

 The plaintiff's problems did not end with the termination of her job. She was tried and convicted of negligent homicide with an automobile and on March 8, 1985, she was sentenced to serve not less than 18 months nor more than five years on that charge. Statement para. 19 and Motion Exhibit 1 (Transcript of Sentencing Hearing before Judge Joseph M. Hannon, Associate Judge, Superior Court of the District of Columbia). Evidence presented at her trial established that the plaintiff caused the accident and that she had a blood alcohol content of .259 upon admission of the hospital. Id. para. 20. Throughout the trial, and the arbitration proceeding, the plaintiff denied that she was drunk at the time of the accident. Id. Her blood alcohol level of .259 was five times the quantity of alcohol as would be prima facie case that the plaintiff was driving under the influence of intoxicating liquor. D.C. Code Ann. § 40-717.1 (Supp. 1984).

 The judge in the criminal case noted that the plaintiff approached a controlled intersection and that at an "outrageously excessive speed" she "thundered into the intersection at speeds in excess of forty to forty-five miles per hour to bring about the death of Mr. Leroy Beasley". The court noted that ...

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