JANIS VAN MEERVELD, Magistrate Judge.
Before the Court is the Motion for Reconsideration filed by plaintiff Jaleana Stevenson (Rec. Doc. 62) and the Motion to Strike certain evidence submitted by plaintiff in connection therewith (Rec. Doc. 65). For the following reasons, the Motion for Reconsideration is DENIED and the Motion to Strike is DENIED as moot.
Plaintiff Jaleana Stevenson was employed by Delta Airlines, Inc. ("Delta") from February 27, 2007 until June 19, 2013, when she sent an email to Delta stating her decision to resign. She had begun working as a ticket agent and was eventually promoted to the position of "Red Coat." In this lawsuit, she alleges that she was diagnosed with shingles in March 2012 and, as a result, she called in sick. When a co-worker texted her within the following week to see if she was "alright because she heard Plaintiff had shingles," Ms. Stevenson alleged that she wrote a letter to her station manager protesting the disclosure of her personal information to co-workers without her knowledge or approval. Ms. Stevenson returned from sick leave in August 2012.
In September 2012, she applied for a flight attendant position. Prior to doing so, she alleges that she checked her personnel file and found that it was empty. Ms. Stevenson was turned down for in-flight service. When she re-checked her personnel file, she found "several unknown writeups" added by Kyla Singleton. Ms. Stevenson alleges that she was written up in October 2012 by Steve Washington for "mismanaging her personal relationships." Ms. Stevenson believes this was in retaliation for writing a letter protesting the disclosure of her personal information.
Ms. Stevenson alleges that in February 2013, while in a meeting with Ms. Singleton and another employee concerning a disciplinary infraction by the other employee, the other employee threatened to punch Ms. Stevenson in the face, but no action was taken against the employee. Ms. Stevenson alleges that she filed a police report "to ensure her safety at work."
Ms. Stevenson alleges that her shingles returned and that on February 15, 2013, she sought help from Dr. Mimi Jalenka. She alleges that another physician, Dr. Baig, "wrote Plaintiff out for two weeks with Shingles." She alleges she was demoted from her position as Red Coat on March 2, 2013. She asserts she was constructively discharged on June 19, 2013.
The record reflects that on May 21, 2014, she filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") asserting discrimination against her on the basis of race, disability, and retaliation. Therein, she asserted that on March 2, 2013, she had been demoted and on June 19, 2013, she had been constructively discharged. On March 31, 2016, the EEOC issued a determination that it was "unable to conclude that the information obtained establishes violations of the statutes."
Ms. Stevenson filed the present lawsuit on July 1, 2016, in the United States District Court for the District of Columbia. She alleged claims for unlawful race discrimination, retaliation, and hostile work environment under Title VII of the Civil Rights Act, discrimination under the Americans with Disabilities Act ("ADA"), and violation of the Family Medical Leave Act ("FMLA"). On May 5, 2016, the court in the District of Columbia dismissed Ms. Stevenson's retaliation, hostile work environment,
The parties consented to proceed before the undersigned magistrate judge. Following discovery, Delta moved for summary judgment arguing that Ms. Stevenson's race discrimination claim fails as a matter of law because she cannot prove that she suffered an adverse employment action because of her race, because she failed to establish working conditions sufficiently intolerable to support a claim of constructive discharge, because Delta has articulated a legitimate, non-discriminatory reason for why Ms. Stevenson did not work some days during 2013 and for her demotion, and because her claims are untimely. On November 13, 2018, the court granted summary judgment on the grounds that Ms. Stevenson's claim was untimely because she had not filed her EEOC charge until more than 300 days after the occurrence of any of the alleged unlawful employment practices. The court noted that Ms. Stevenson had not addressed the untimeliness issue in her opposition to the motion for summary judgment. Having found the claim untimely, the court did not address the remaining arguments favoring dismissal.
On December 11, 2018, Ms. Stevenson filed the present motion for reconsideration. For the first time, she argues that her claim was timely because she sought administrative relief from the EEOC within 300 days of Delta's adverse employment actions and that the EEOC mislead Ms. Stevenson regarding her complaint. Ms. Stevenson attaches an "Affidavit," unnotarized but made under penalty of perjury, in which she asserts that on some unspecified date, she went to the EEOC to file a charge of discrimination against Delta and was given a form to fill out and fax back. (Rec. Doc. 62-3). She asserts that on December 26, 2013, she faxed the form back to the EEOC. She attaches the EEOC Questionnaire that she says she faxed. (Rec. Doc. 62-5). There is no fax confirmation sheet or evidence of faxing. The form explains that the person must file a charge of job discrimination within 300 days from the day she knew about the discrimination and that if she does not do so, she will lose her rights. It explains that she can check Box 1 to indicate that she wants to talk to an EEOC employee before deciding to file a charge, or she can check Box 2 to indicate that she wants to file a charge of discrimination and authorizes the EEOC to look into the discrimination she describes. Ms. Stevenson checked neither Box 1 nor Box 2.
Ms. Stevenson asserts that she called her attorney Charlene Hardnett at some unspecified time to tell her she had faxed in the form and was told that she should confirm the EEOC received her form. She attaches the affidavit of Ms. Hardnett, who confirms that assertion. (Rec. Doc. 62-4). Ms. Stevenson asserts that she called the EEOC on January 7, 2014 concerning the status of a "complaint filed previously on March 18, 2013
Instead, she asserts that at some unspecified time, she called Ms. Johnson and notified her that under her March 18, 2013, claim, she was still within her 300-day limit. She says that Ms. Johnson agreed to file the charges. In her affidavit, Ms. Hardnett says that on January 16, 2014, Ms. Stevenson told her that Ms. Johnson recalculated the dates and determined that the March 2, 2013 incident was outside of the 300-day period but the March 18, 2013, incident
The one charge verified to have been filed with the EEOC is Charge Number 461-2014-00477, signed by Ms. Stevenson on May 21, 2014, and stamped "Received" on June 5, 2014. (Rec. Doc. 62-7, at 2). Notably, Ms. Stevenson fails to mention this Charge at all in her Affidavit. Nor does Ms. Hardnett. However, in her Motion for New Trial, Ms. Stevenson claims that "[a]fter not receiving a response from the EEOC for more than four months, Ms. Stevenson filed a second complaint against Delta on May 21, 2014." (Rec. Doc. 62-1, at 2). The "complaint" (actually a Charge of Discrimination) conspicuously does not mention any allegedly earlier filed Charge. (Rec. Doc. 62-7, at 2). Additionally, while her Complaint filed with the United States District Court for the District of Columbia alleges "Plaintiff was not given proper intake assistance by the EEOC office in New Orleans," she highlights specifically that the resulting omission was that "Hostile work environment was not included in her charge,"
Along with its opposition to the motion for reconsideration, Delta has moved to strike some of the evidence submitted by Ms. Stevenson. Delta complains that Ms. Stevenson's "affidavit" is not notarized. However, that document includes a declaration under penalty of perjury and is not excludable simply because it is not notarized.
"The Federal Rules of Civil Procedure do not provide for a `Motion for Reconsideration' but such motions may properly be considered either a Rule 59(e) motion to alter or amend judgment or a Rule 60(b) motion for relief from judgment."
"A party may bring a motion under [Rule 59(e)] on three possible grounds: (1) an intervening change in controlling law; (2) the availability of new evidence not previously available; or (3) the need to correct a clear error of law or prevent manifest injustice."
Reconsidering a judgment is extraordinary, and the court "must balance between two competing interests: the desire to achieve and maintain a final judgment and the desire to reach a just decision based upon the evidence."
Ms. Stevenson's Motion for Reconsideration is predicated on additional evidence that was not before the Court at the time it decided the Motion for Summary Judgment. She does not appear to contend that the evidence is newly discovered; she presumably argues that the motion for summary judgment should be reconsidered to prevent manifest injustice. The court turns to the factors considered when determining whether to grant a motion for reconsideration.
Ms. Stevenson submits that the reason she failed to submit these documents earlier is because Delta waived any objections to the timeliness of Ms. Stevenson's EEOC complaint by appearing, answering, transferring venue, and participating in discovery.
Delta opposes this explanation, first pointing out that a plaintiff's failure to exhaust administrative remedies operates as a jurisdictional bar.
The court finds that the reasons for Ms. Stevenson's failure to argue her theory of waiver and present evidence purporting to show timeliness weigh against granting the motion for reconsideration. Ms. Stevenson fails to explain why she completely failed to address Delta's timeliness argument in opposing Delta's motion for summary judgment. If she was taking the position that Delta had waived the timeliness argument, she does not explain why she failed to make that argument earlier. At best, it appears that her failure to address Delta's timeliness argument is a result of inadvertence or a mistaken assumption that her waiver argument was so obvious from the face of the pleadings that she did not need to address it.
The court next considers the importance of the evidence to Ms. Stevenson's case. The new evidence purports to show that Ms. Stevenson submitted an EEOC intake questionnaire on December 26, 2013, and that on January 16, 2014, Ms. Stevenson communicated to the EEOC that she wanted to file a Charge of Discrimination and was told that the EEOC had done so. Ms. Stevenson points out that an intake questionnaire can be sufficient to constitute a charge.
Unlike in the
Ms. Stevenson also argues that equitable tolling applies because the EEOC misrepresented to her in January 2014 that a charge would be filed.
Delta submits that Ms. Stevenson has failed to establish that she actually filed or faxed the December 26, 2013, intake forms because she has not included a fax confirmation page or any evidence from the EEOC verifying receipt. It argues that
Delta argues that equitable tolling is inapplicable here because this case does not present extreme circumstances warranting such relief. It points out that after the purported phone call on January 16, 2014, Ms. Stevenson took no other affirmative steps to pursue her claim, nor did she seek confirmation of her filing. For example, in the
Delta also cites
Assuming that the intake form was actually submitted on December 26, 2013, it is insufficient to constitute the filing of a charge of discrimination because unlike the plaintiff in
The court next considers whether the evidence was available to Ms. Stevenson before she responded to the summary judgment motion. There is no dispute that the evidence was available, and as discussed above, she has provided no reasonable explanation for why she failed to present it earlier.
Finally, the court considers the likelihood that the defendants would suffer unfair prejudice if the case is reopened. Defendants make no argument that they would be prejudiced by the reconsideration of the court's judgment. This factor weighs in favor of granting the motion for reconsideration.
On balance, the court finds the factors overwhelmingly weigh against granting the motion for reconsideration. Importantly, there is no doubt that the evidence was previously available to Ms. Stevenson and she has not provided any reasonable explanation for her failure to even address Delta's argument in its motion for summary judgment. It must be noted that much of the evidence is of highly dubious validity—an allegedly earlier filed EEOC Charge of which there is no record and which plaintiff herself did not mention for years; self-serving alleged discussions with the EEOC which are completely unsupported by any documentation; an allegedly faxed Intake Questionnaire for which no proof of faxing was provided, such as a confirmation page, etc. The authenticity of the letter to President Obama is suspect for a number of reasons. It is dated January 10, 2014. Yet it references discussions Ms. Stevenson allegedly had with Ms. Johnson of the EEOC on January 7, 2014, a mere three days before the letter. Furthermore, the letter references that Ms. Johnson instructed Ms. Stevenson to call her EEOC supervisor on January 14, 2014. Did Ms. Stevenson not even wait to speak to the supervisor on January 14 before sending this letter to President Obama? The letter further references without date that "subsequently,"
Additionally, regardless of its dubious validity, the supplemental evidence itself is of no importance because the intake form does not qualify as a charge and the facts she now alleges do not rise to the exceptional level for equitable tolling to apply. Further, as the court addresses below, even if the evidence were considered now and the court could find that Ms. Stevenson's claim is timely, her claims cannot survive summary judgment on the merits.
Summary judgment under Federal Rule of Civil Procedure 56 must be granted where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. Proc. 56. The movant has the initial burden of "showing the absence of a genuine issue as to any material fact."
"An issue is material if its resolution could affect the outcome of the action."
"Summary judgment is appropriate where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant, or where it is so overwhelming that it mandates judgment in favor of the movant."
Ms. Stevenson began working for Delta as a customer service agent on February 27, 2007 at the Louis Armstrong International Airport in New Orleans. Delta promoted Ms. Stevenson to the passenger service agent position known as "Red Coat" on March 16, 2010. As a Red Coat, Ms. Stevenson oversaw the work of the customer service agents, resolved conflicts, and addressed customer service related issues. As a Red Coat, Ms. Stevenson was supervised by Kyla Singleton and Chris Cristina, both performance leaders. She also reported to Stephen "Steve" Washington, the station manager.
On October 24, 2008, Ms. Stevenson received a Warning Letter for an unsatisfactory attendance record. The letter required Ms. Stevenson to submit a doctor's certification for each absence due to illness for a period of six months. On February 17, 2009, a Probationary Letter was issued to Ms. Stevenson citing five examples of absences since the October 2008 letter and stating that Ms. Stevenson was "not meeting Delta's standards in the area of attendance and dependability." She was placed on a probationary period of at least six months during which salary increases and promotions would not be possible. She was again required to submit a doctor's certification for any absences due to illness or injury.
According to Ms. Stevenson, on December 26, 2010, co-workers verbally attacked her. She cites an email dated December 28, 2010, describing the incident to her station manager at the time, Glynda Pace, with a carbon copy to Kyla Singleton. (Rec. Doc. 55-2, at 10-11). She reported that she felt like "I am consistently under attack and some individuals may be conspiring against me."
On December 28, 2010, Ms. Stevenson says her supervisor Chris Cristina threatened and intimidated her. She cites an email dated December 29, 2010, in which she reported the incident to Pace. She stated that Mr. Cristina came and stood behind her while she was typing an email in the office; he asked what she was doing, and then he stated that "this has to stop," "this thing with you and you know who," and that Ms. Stevenson "can't go around threatening people." (Rec. Doc. 55-2, at 12). She reported that she felt threatened by Mr. Cristina's actions.
On January 30, 2011, Ms. Stevenson reported an incident that had occurred on January 27, 2011, to Ms. Pace with a copy to Ms. Singleton. (Rec. Doc. 55-2, at 13). Ms. Stevenson said that a co-worker had snatched her clipboard from her hands. Ms. Pace responded "you are a leader, advise [the co-worker] you'd like to speak to him and professionally tell him how that made you feel. IF you still need someone to talk to [him] afterwards, let us know."
In February 2012, Ms. Stevenson was diagnosed with shingles. According to Ms. Stevenson's testimony, the condition prevented her from working because it was contagious at first, and then she suffered from nerve pain. (Rec. Doc. 50-3, at 12-14). As she was provided with return-to-work dates by her doctors, she would provide those directly to Sedgwick, a third-party company that administers short-term disability for Delta.
On or about February 10, 2013, there was a verbal altercation between Ms. Stevenson and her co-worker Altonvice Louding. (Stevenson Depo., Rec. Doc. 503, at 30). Ms. Louding and a few other people left the ticket counter where Ms. Stevenson was working as a Red Coat ticket counter agent.
Once there, Ms. Stevenson spoke to Ms. Singleton and said "[y]ou really need to talk to her, I have never seen her like this."
According to the declaration of station manager Mr. Washington, he, Tameka Williams (a human-resources representative), and Ms. Pace investigated the incident. (Washington Decl., Rec. Doc. 50-6, at 3). Each of Ms. Stevenson, Ms. Singleton, and Ms. Louding submitted written statements about the incident.
In her statement of material facts, Ms. Stevenson disputes that she was terminated as a result of the altercation. As support, she cites her own deposition testimony describing the incident, which is summarized above. She also points out that Ms. Singleton did not identify who started the incident in her statement.
Meanwhile, on February 14, 2013, Ms. Stevenson emailed Ms. Singleton with a copy to Ms. Stevenson stating that:
(Rec. Doc. 50-4, at 92). Ms. Stevenson contacted the Delta Employee Assistance Program, which referred her to therapist Mimi Jalanek. (Stevenson Depo., Rec. Doc. 50-3, at 56-57). Jalanek's records indicate that Ms. Stevenson visited her on February 14, 2013. (Jalanek Records, Rec. Doc. 50-11). Ms. Stevenson visited her physician, Dr. Steven Barnes, on February 18, 2013. (Stevenson Depo., Rec. Doc. 50-3, at 60). Dr. Barnes prescribed Lyrica to treat shingles.
On February 20, 2013, Ms. Stevenson reported to Ms. Jalanek that she "felt `drugged' from Lyrica." (Jalenek Records. Rec. Doc. 50-11, at 6). Sedgwick's records indicate that on February 21, 2013, Ms. Stevenson reported that the Lyrica was "making her severely tired so she is not able to work." (Stevenson Depo., Rec. Doc. 50-3, at 65). Delta's notes indicate that Mr. Washington spoke with Ms. Stevenson on February 22, 2013, at which time Ms. Stevenson advised that she was not feeling well and would not be at work on February 23, 2013. (Rec. Doc. 50-6, at 110). Mr. Washington advised Ms. Stevenson that she must contact Sedgwick to have her medical leave approved.
Ms. Stevenson treated with Dr. Mirza Baig for shingles on February 22, 2013. (Stevenson Depo., Rec. Doc. 50-3, 66-68). Dr. Baig increased Ms. Stevenson's dosage of Lyrica.
Ms. Stevenson returned to work on March 6, 2013.
On March 13, 2013, Ms. Stevenson returned to Dr. Baig.
On April 15, 2013, Ms. Stevenson went to see neurologist Dr. Enrique Segura.
In a letter dated May 21, 2013, Sedgwick denied Ms. Stevenson's claim for short-term disability for the period after March 13, 2013. (Stevenson Depo., Rec. Doc. 50-3, at 94). Ms. Stevenson appealed the decision.
On May 24, 2013, Dr. Segura issued a letter stating that Ms. Stevenson had been under his care since March 2013 for treatment of neuralgia. He noted that Ms. Stevenson's condition had improved with use of Lyrica, but "this medication can cause drowsiness." (Stevenson Depo Ex. 31, Rec. Doc. 50-4, at 125). He added that "Ms. Stevenson has informed me she won't be able to return to work while on this medication. Most, if not all, of the potential treatments for this condition will have the same side effect profile."
Meanwhile, while on her leave of absence from Delta, Ms. Stevenson applied to U.S. Airways for a flight attendant position. She became employed by U.S. Airways on or about May 30, 2013. (American Airlines Records, Rec. Doc. 50-15, at 3). She testified that when she wrote to her supervisors on June 6, 2013, that she looked forward to returning soon, she did not intend to return if she passed her four-week training at U.S. Airways. (Stevenson Depo., Rec. Doc. 50-3, at 99-100). On June 19, 2013, she passed her training with U.S. Airways.
Ms. Stevenson testified that her discrimination claim "is strictly based upon the fact that [she] was told that I could not be at work on my medication when two people that I know of were on stronger medications than I was on and permitted to work."
"In employment discrimination cases, a plaintiff may present his case by direct or circumstantial evidence, or both."
Of course, in Title VII cases, the prima facie case will vary depending on the circumstances.
Here, Delta argues that Ms. Stevenson's race discrimination claim fails because she cannot establish that an adverse employment action was taken because of her race. In opposition to the Motion for Summary Judgment, Ms. Stevenson does not appear to contest this argument, focusing entirely on her claim that she experienced a hostile work environment that led to her constructive discharge. Nonetheless, the court considers whether Ms. Stevenson's race discrimination claim can survive summary judgment.
Ms. Stevenson testified that she was "possibly" discriminated against by Ms. Pace from 2007 to 2012 when Ms. Pace pulled her into the office about performance and disciplinary issues because Ms. Pace was white. Ms. Stevenson also testified that during 2007 to 2012, Ms. Singleton, who is African-American like Ms. Stevenson, and Mr. Cristina, who is white, pulled her into the office more than her white counterparts and that race "had something to do with" it. The court finds that getting pulled into the office to discuss performance or discipline, without more, does not qualify as an adverse employment action. "An employment action that `does not affect job duties, compensation, or benefits' is not an adverse employment action under Title VII."
Ms. Stevenson may be arguing that she was discriminated against when she was demoted from her position as a Red Coat in March 2013. Delta points out that Ms. Stevenson was partially demoted by Mr. Washington and Ms. Williams, who are both of the same race as Ms. Stevenson. Moreover, Ms. Stevenson has presented no evidence that other similarly situated employees were treated differently. Citing Mr. Washington's uncontroverted deposition testimony, Delta points out that Ms. Stevenson's demotion was consistent with previous demotions of Red Coat employees who were not the same race as Ms. Stevenson. (Washington Depo., Rec. Doc. 50-5, at 7-9). With evidence that two white employees were also demoted for inappropriate conduct (using profanity with one of the agents and using an inappropriate hand gesture) and no evidence to the contrary, Ms. Stevenson cannot show that she suffered disparate treatment on account of race.
Ms. Stevenson also testified that Mr. Washington discriminated against her in 2013 when he notified her that she could not return to work while she was on medication that made her drowsy. She asserts this is different from Ms. Washington's treatment of two of her Caucasian colleagues. The court notes that Ms. Stevenson did not plead this claim in her complaint. In any case, the court finds this theory cannot survive summary judgment. To qualify as a "comparator" who was treated differently, the plaintiff must "demonstrate that the employment actions at issue were taken `under nearly identical circumstances.'"
Ms. Stevenson cites her own testimony that one employee confided in her that he was on 10 or 15 opioids a day, and that he came back with doctors' notes and Delta would allow him to take 15 minute breaks. (Stevenson Depo., Rec. Doc. 50-3, at 27). Ms. Stevenson also cites her own testimony that another employee took medication and was allowed to work.
Further, even if Ms. Stevenson's testimony that two employees were allowed to return to work while on strong medication could create an issue of fact as to whether she experienced disparate treatment, there is no evidence to support finding any adverse employment action because there is no evidence that Delta prevented Ms. Stevenson from returning to work as Ms. Stevenson claims. As Delta points out, the record demonstrates that Ms. Stevenson obtained multiple excuses from her doctors stating that she was unable to work due to her shingles condition from February 2013 to May 2013. When she had a note with a return to work date of March 6, 2013, she returned to work on that date and completed the remainder of the work week. When she met with Dr. Baig on March 13, 2013, she reported feeling drowsy on the job. Dr. Baig's notes reflect that Dr. Baig could not give a one-month excuse for medication and instead gave her an excuse from March 13 through March 17 while she found a neurologist. On March 18, 2013, Dr. Barnes excused Ms. Stevenson from work for 30 days because of drowsiness for medication. The evidence shows that Ms. Stevenson pursued and obtained notes excusing her from work and that Delta excused her from work as a result. There is simply no evidence to support Ms. Stevenson's contention that she was prevented from returning to work. It appears Ms. Stevenson may be relying on a June 6, 2013 email (written at a time when she was already employed by U.S. Airways), where Ms. Stevenson stated that "per My doctors orders and our conference call on last week, I will not be returning to work until after July 8th. My doctor has faxed over my work excuse to you all and I have been instructed that I cannot return to work prior to my doctor releasing me to return." This email is consistent with the evidence that Ms. Stevenson obtained doctor's notes excusing her from work and that as a result of the notes, she was excused. It does not indicate that Ms. Stevenson was attempting to return to work, nor that Delta was preventing it.
The court can find no evidence from which a reasonable jury could conclude that Ms. Stevenson suffered an adverse employment action because of her race. Ms. Stevenson's race discrimination claim could not survive summary judgment.
Ms. Stevenson's claim for disability discrimination under the ADA is subject to the same burden shifting framework discussed above for race discrimination claims under Title VII.
Delta argues that Ms. Stevenson's disability discrimination claim fails as a matter of law because she did not suffer an adverse employment action because of a disability and was not treated less favorably than a nearly identical comparator. As noted above, Ms. Stevenson's opposition to Delta's motion for summary judgment addresses only her hostile work environment/constructive discharge claim. In fact, her memorandum in opposition does not refer to disability discrimination at all. Nonetheless, the court considers whether her ADA discrimination claim can survive summary judgment.
First, the court finds that Ms. Stevenson has not shown any adverse employment action because of her disability. The only allegation that might be construed as an alleged action by Delta related to Ms. Stevenson's shingles condition is Delta's alleged refusal to allow her to return to work on medication. But as discussed in detail above, there is no evidence that Delta did not permit Ms. Stevenson to return to work on medication. In fact, Delta did allow her to return to work on March 6, 2018, when her work excuse expired. The evidence shows that Ms. Stevenson obtained multiple work excuses and that Delta simply honored them. Ms. Stevenson cannot show an adverse employment action. Further, Ms. Stevenson has not shown that similarly situated individuals were treated differently. For the same reasons that the court has found that Ms. Stevenson has not identified a nearly identical comparator for her Title VII claim for race discrimination arising out of the alleged refusal to allow her to return to work while on medication, the court now finds she has not identified a nearly identical comparator for purposes of her ADA claim. Ms. Stevenson's ADA discrimination claim could not survive summary judgment.
As noted above, the only arguments raised by Ms. Stevenson in opposition to Delta's motion for summary judgment were to argue that she experienced a hostile work environment and that she was constructively discharged. It is unclear whether Ms. Stevenson is attempting to assert a separate claim for a hostile work environment, or whether she is simply arguing that an allegedly hostile work environment compelled her to resign. To the extent she seeks to assert a hostile work environment claim, as Delta points out, Ms. Stevenson's hostile work environment claim was dismissed by the District Court for the District of Columbia on May 5, 2016.
To establish a constructive discharge claim, the employee must show that "working conditions [became] so intolerable that a reasonable person in the employee's position would have felt compelled to resign."
In opposing Delta's motion for summary judgment, Ms. Stevenson cites the following facts in dispute. She asserts that she was prohibited from returning to work while on medication, when two white employees were permitted to return to work on strong medication.
As a matter of law, even interpreting the above allegations in the light most favorable to Ms. Stevenson, no reasonable jury could find that Ms. Stevenson was subjected to working conditions that were so terrible that she was compelled to resign. Of the factors to be considered in assessing whether a plaintiff can prove a constructive discharge claim, the only factors present are a demotion and reduction in job responsibilities. As discussed above in the court's assessment of Ms. Stevenson's race discrimination claim, Ms. Stevenson cannot show that her demotion was racially motivated. There is no evidence here of badgering, harassment, or humiliation intended to encourage resignation. In fact, there is no dispute that in the months leading up to her resignation, Ms. Stevenson was on medical leave. The December 2010 incidents do not rise to the level of intolerable and, moreover, occurred years before Ms. Stevenson's resignation. Further, a reasonable person would not feel compelled to resign as a result of the single altercation in 2013 and the resulting demotion, which, as discussed above, has not been shown to be motivated by race. Importantly, there is no dispute that Ms. Stevenson resigned to begin working for U.S. Airways. Ms. Stevenson's claim for constructive discharge could not survive summary judgment.
Because Ms. Stevenson has failed to meet the standard for granting a motion for reconsideration and because, in any event, her claim would not have survived summary judgment, Ms. Stevenson's Motion for Reconsideration (Rec. Doc. 62) is DENIED and Delta's Motion to Strike (Rec. Doc. 65) is DENIED as moot.