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HYMAN v. FIRST UNION CORP.

October 9, 1997

SONDRA W. HYMAN, et al., Plaintiffs,
v.
FIRST UNION CORP., et al., Defendants.



The opinion of the court was delivered by: LAMBERTH

 I. Background

 This matter comes before the court on defendants' various motions for summary judgment on the discrimination claims of plaintiffs Hymavathi Nair, Donna L. Diewald, and Luther Dorsey. Plaintiffs are members of a group of employees and applicants permitted to proceed collectively against defendants *fn1" by this court pursuant to a memorandum opinion issued August 12, 1997 ("Hyman I"). The factual and procedural background of this case is set out fully in the court's September 26, 1997 memorandum opinion ("Hyman IV"), granting First Union's motion to dismiss plaintiffs' disparate impact claims under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621 et seq. First Union's motions for summary judgment presently before the court address individual plaintiffs' claims of discrimination brought under the ADEA, the District of Columbia Human Rights Act of 1977 ("DCHRA"), D.C. Code §§ 1-2501 et seq., and in the case of one plaintiff, Hymavathi Nair, a claim under 42 U.S.C. § 1981. Upon consideration of the written submissions of parties and the relevant law, the court will deny First Union's motions for summary judgment on these plaintiffs' ADEA and DCHRA claims and grant First Union's motion for summary judgment on the Section 1981 claim of Hymavathi Nair.

 II. Discussion

 A. Summary Judgment

 Summary judgment is appropriate where there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In this regard, "materiality is . . . a function of the applicable legal standard." Kowalczyk v. Department of Justice, 315 U.S. App. D.C. 286, 73 F.3d 386, 389 (D.C. Cir. 1996). Inferences drawn from the facts must be viewed in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). If summary judgment is to be denied, there must be evidence on which the jury could reasonably find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). If the non-moving 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," summary judgment may be granted. Celotex, 477 U.S. at 322.

 1. The Joint Scheduling Order

 On August 12, 1996, this court entered a Joint Scheduling Order providing guidelines for the parties with respect to both discovery and dispositive motions. Paragraph 4 of this Order provides:

 
4. Discovery. Until the trial or trials of common issues, discovery will be limited to determination of common issues. The Court contemplates individualized discovery, if necessary, following the completion of the discovery on common issues and the trial[] or trials on those issues. Nothing in this Order shall be deemed to abridge or alter in any way the right of either party to conduct discovery concerning individualized liability and damages issues and defenses to those matters after the conclusion of the trial or trials of common issues. The trial or trials of individualized liability and damages issues and defenses to those matters shall be deferred until after the initial phase(s) of trial.

 In accordance with this Order, neither party is permitted to conduct discovery concerning any of the plaintiffs' individualized claims until after resolution of the common issues trial. Therefore, the Joint Scheduling Order greatly limits the ability to file summary judgment motions concerning individual claims until this time. Paragraph 17 provides:

 
17. Dispositive Motions. Dispositive motions shall be filed sixty (60) days before the trial commencement date to be selected. . . . As the Court does not contemplate that individualized discovery of Plaintiffs' claims or damages and defenses to those matters will be conducted until following the trial or trials of common issues, additional dispositive motions, by either party, shall be filed pursuant to a schedule to be established following the determinations at that trial or trials. Nothing in this paragraph shall be deemed to prevent any party from filing such motions prior to such trial.

 When taken together, Paragraphs 4 and 17 permit either party to file dispositive motions concerning individualized claims or defenses only if the non-moving party would not need individualized discovery to oppose such a motion. As plaintiffs have not had an adequate opportunity for discovery with respect to the individualized claims in this case, First Union's motions for summary judgment on the individual ...


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