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Rebecca M. Blank, Acting Secretary of Commerce v. Bonny Berkner

March 11, 2013


The opinion of the court was delivered by: Deborah K. Chasanow United States District Judge


Presently pending and ready for review in this employment discrimination case is the motion to dismiss or for summary judgment filed by Defendant Rebecca M. Blank in her official capacity as Acting Secretary of the United States Department of Commerce.*fn1 (ECF No. 21). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the motion, which will be construed as one for summary judgment, will be granted.


Plaintiff Bonny Berkner worked as a Geographer for the U.S. Census Bureau in the Department of Commerce ("Commerce"). Plaintiff suffers from Post-Traumatic Stress Disorder, anxiety disorder, and stress related to bereavement. Her supervisors were Michael Ratcliffe and Timothy Trainor. Ms. Berkner made a number of complaints to Mr. Ratcliffe and Mr. Trainor during the course of her employment for incidents that she asserts are related to her mental disability.

In late 2007, Ms. Berkner complained that drinks she left on her desk had been tampered with, and that she became ill as a result. (ECF No. 28-5, at 1). In late 2007 and early 2008, Ms. Berkner reported that her desk and cabinets had been tampered with and personal items, including cash and copies of her keys, were taken. (Id.). Ms. Berkner alleged that a man shot a gun at her car from the back of a truck while she was driving. (ECF No. 28-5 at 1). Plaintiff thought that this man was either a co-worker or friend of a co-worker - "a computer savvy Latino man . . . by the name of Omar." (ECF No. 21-4, at 2). In October 2008, she filed a number of "Security Incident Reports" related to these events. (ECF No. 21-7). Plaintiff repeatedly inquired about these incidents with a number of her co-workers, including an unwelcome call to one co-worker's home. (ECF No. 21-4, at 1). Plaintiff had numerous conversations with co-workers in which she was agitated, demanded information related to her complaints, and accused co-workers of engaging in a conspiracy with management. Plaintiff also left confusing notes for co-workers related to her complaints. Ultimately, Plaintiff's co-workers complained that they felt disrupted and threatened by the nature and frequency of Plaintiff's questioning. (ECF No. 28-9, at 1).

In August 2008, Mr. Ratcliffe and Mr. Trainor had a meeting with Plaintiff and counseled her to keep her conversations focused on work-related issues. (ECF No. 28-6). Because Mr. Ratcliffe did not see Plaintiff's behavior as improving, he proposed suspending her for fourteen days for inappropriate conduct and failure to follow supervisory directives. (ECF No. 21-4). The memorandum issued by Mr. Ratcliffe in December 2008 in connection with this suspension outlined a number of additional instances in which Plaintiff's conduct made her co-workers feel uncomfortable or threatened, including one conversation in which Plaintiff raised her voice at an employee and told the employee that if she did not receive help, something "really bad" was going to happen that they all would regret. (ECF No. 21-4). He also offered to have her undergo a psychiatric medical examination in connection with her supervisors' investigation of her behavior. (ECF No. 28-9).

Mr. Trainor upheld Mr. Ratcliffe's recommendation and suspended her for interfering with the work of other employees, making other employees feel threatened, and disrupting the workplace. (ECF No. 28-4). The day after she was suspended, Plaintiff's sister contacted Plaintiff's union representatives to let them know that Plaintiff had asked her if she could borrow a gun. (ECF No. 21-8). As a precaution against Plaintiff's "unpredictable behavior," the human resources department required Plaintiff to enter the building through a metal detector after she returned to work from the suspension. (ECF No. 28-12).

In April 2009, Plaintiff met with a union representative, Frank Silberstein. With Mr. Silberstein's help, she formally requested that Commerce provide her with a reasonable accommodation by relocating her out of the Geography Division. Commerce denied this request because she did not provide the required medical documentation to support her request. Mr. Silberstein reported in a memorandum to the human resources department that, during their meeting, Plaintiff:

Became very emotional and quite disturbed at how the agency was able to build a very strong case against her, and described to me that she was facing overwhelming odds . . . She then insisted and very clearly expressed that if she gets fired, that she will take her own life. Her words were, "If I get fired, I'll kill myself." I was upset and told her, "Bonny, please don't do that." . . . She then went on explaining that when she kills herself she will return and haunt people, perhaps even being born again and getting even that way . . . She continued saying that in addition to taking her own life, she might take others with her. She must have sensed that I was disturbed about that statement, because she paused and said, "Not here, I know where they live" . . . I asked her to recant that statement. She then noted, "Now I'll get in trouble for what I said." She then said, "I recant it, but I will do what I do. I'll do what I do." (ECF No. 21-13). Plaintiff does not challenge that Mr. Silberstein reported this to Plaintiff's superiors, but disputes actually saying any of this to him. Rather, in her deposition testimony, she asserted that she was "venting" and "not sure what words came out of [her] mouth." (ECF No. 28-14, at 12). As a result of Mr. Silberstein's report, Mr. Ratcliffe placed Plaintiff on administrative leave and recommended that her employment be terminated. (ECF No. 21-14). On June 17, 2009, Mr. Trainor accepted the recommendation and terminated Plaintiff because her statements to Mr. Silberstein demonstrated continued misconduct, and the nature of the comments constituted a threat to employees. (ECF No. 21-14).

A.Procedural Background

Plaintiff appealed her termination and complaints of discrimination to the Merit Systems Protection Board ("MSPB"). On March 19, 2010, an administrative judge upheld Commerce's decision to terminate Plaintiff. She appealed this decision to the full board of the MSPB, which affirmed the decision. Plaintiff then appealed this decision to the Equal Employment Opportunity Commission ("EEOC"). The EEOC upheld the MSPB's decision. On July 27, 2011, Plaintiff filed a complaint alleging disability discrimination in the U.S. District Court for the District of Columbia. (ECF No. 1). On November 18, she filed an amended complaint. (ECF No. 3). On April 19, 2012, Defendant's motion to transfer based on venue was granted, and the case was transferred to this court. (ECF Nos. 15, 16). On August 13, 2012, Defendant filed a motion to dismiss or, in the alternative, for summary judgment. (ECF No. 21), which Plaintiff opposed (ECF No. 28). Defendant replied on January 30, 2013. (ECF No. 34).

II.Standard of Review

Defendant's motion is styled as a motion to dismiss or for summary judgment. Because the parties submit and rely on materials outside the pleadings, the summary judgment standard applies.

Summary judgment may be entered only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008). Summary judgment is inappropriate if any material factual issue "may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); JKC Holding Co. LLC v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001).

"A party opposing a properly supported motion for summary judgment 'may not rest upon the mere allegations or denials of [his] pleadings,' but rather must 'set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (quoting former Fed.R.Civ.P. 56(e)). "A mere scintilla of proof . . . will not suffice to prevent summary judgment." Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249--50 (citations omitted). At the same time, the facts that are presented must be construed in the light most favorable to the party opposing the motion. Scott v. Harris, 550 U.S. 372, 378 (2007); Emmett, 532 F.3d at 297.


Plaintiff's amended complaint asserts seven claims against Defendant: (1) harassment based on actual or perceived disability in violation of the Rehabilitation Act of 1973;*fn3 (2) failure to accommodate Plaintiff's disability in violation of the Rehabilitation Act; (3) retaliatory harassment in violation of Title VII of the Civil Rights Act of 1964; (4) retaliatory discharge in violation of Title VII; (5) discriminatory discharge in violation of the Rehabilitation Act; (6) discriminatory ...

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