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May 13, 1994


The opinion of the court was delivered by: VINCENT L. BRODERICK



 The complaint in this case alleges placement of plaintiff employee Linda D. Misek-Falkoff *fn1" on permanent disability status by International Business Machines Corporation ("IBM"), the defendant employer (the "employer") in violation of Section 504 of the Rehabilitation Act of 1973 (the "Act"), 29 USC 794. Primarily involved is an issue of res judicata. Absent res judicata there are issues of whether plaintiff was "otherwise qualified" to retain her job *fn2" within the meaning of the Act and if so whether the defendant employer made "reasonable accommodation" in light of plaintiff's handicaps.

 Even when plaintiff was present in the workplace there were problems: plaintiff at times exhibited fits of rage, emotional outbursts, crying episodes and similar behavior, making it difficult if not impossible for many co-workers and supervisors to get along with her. The extent to which these episodes were directly related to, the result of, or independent of her physical condition is unclear. These difficulties increased after mid-1985.

 Plaintiff claims that the employer knew about her physical condition, but that for some two years the employer harassed her and restricted her career advancement and job opportunities and eventually removed her from her position as a computer analyst and office educator. She notes that during the period of alleged harassment she received positive job evaluations. She claims that the employer's "campaign" to force her out constituted discrimination on the basis of her handicap in violation of federal law.

 The employer moves for summary judgment dismissing the complaint under Fed.R.Civ.P. 56 on the grounds that plaintiff's claims are barred by res judicata,3 and that plaintiff cannot establish a handicap discrimination claim as a matter of law.

 While the employer's personnel practices were at times far from ideal and may not be fully excusable even in the difficult circumstances involved, none of these lapses suggests violation or intent to violate any of the statutory guarantees at issue in this case.

 The employer's motion to dismiss is granted.


 The employer is a leader in the development and manufacturing of computer systems. Plaintiff is a former college professor holding a Ph.D. degree with a background in computers and linguistics. Plaintiff, who is now an attorney, *fn4" began employment as an at-will employee with IBM in the summer of 1977, first as a senior associate programmer and then as a staff systems analyst (office educator). *fn5"

 Through at least the last seven years of her employment plaintiff suffered from sharp head pains and other symptoms associated with atypical trigeminal neuralgia, a disorder of the nervous system, *fn6" and she had attacks at unpredictable times. Plaintiff was in frequent communication with the employer's medical department, as were her own physicians, and plaintiff often worked "to tolerance" (that is, as much as possible) or for half-days. Plaintiff sometimes worked at home but not on a regular basis.

 Beginning in 1984, plaintiff's medical condition worsened. She was frequently absent, sometimes for extended periods, due among other things to hospitalization in connection with medical tests and brain surgery in July of 1985, and to emotional reactions to work-related experiences. She received satisfactory personnel appraisals in June 1982, August 1983, September 1984, and December 1986. None of the written evaluations contained any comments in the section provided for "significant positive or negative influence on the performance of other employees." The employer claims that performance appraisals, which are made in writing, are limited to performance while actually at work and that "conditions of work" such as absences and personal conduct would not be reflected on an employee's personnel appraisal or result in an unsatisfactory evaluation "unless excessive." *fn7"

 This may have minimal significance in the context of this particular case. There were oral criticisms by her supervisors of her ability to work with others: plaintiff was keenly aware of, and in fact disputed, these oral criticisms. Even prior to 1985, plaintiff and her managers had difficulty in working together, *fn8" and she exhibited occasional extreme emotional reactions in the workplace. Thus written memorialization of such matters would merely have been inflammatory.

 In mid-1985 plaintiff's job involved designing software systems, which included working with people within her own group both at regular meetings and one-on-one as a normal part of developing each system. Her job also encompassed attending technical conferences on behalf of the employer, meetings with customers, and undergoing training to keep up-to-date in the field.

 An incident triggering events leading to this lawsuit occurred on May 29, 1985. *fn9" When the departmental computer trainer failed to include plaintiff in a training session, an altercation erupted. The computer trainer transmitted an account to his manager and others by electronic mail alleging that plaintiff had attempted to assault him. Plaintiff vigorously denies the computer trainer's version of this incident: plaintiff claims that at most she brought her hand down "in frustration" on a table next to the place where the computer trainer was sitting, denting some slides in a binder. *fn10" Both employees appear to have been shaken by the incident, as was a third employee, who observed the encounter and claimed thereafter to be afraid of plaintiff. *fn11"

 Several weeks later, plaintiff was involved in a second incident, this time with her manager, in which plaintiff claims that the manager grabbed from plaintiff's hand a telephone which then brushed plaintiff's face. Believing that she had been assaulted, plaintiff called for help from the building security and medical departments. Immediately after this affair, the manager requested to be relieved from supervising plaintiff and was replaced by a more senior manager.

 Later in the summer of 1985, plaintiff had neurological brain surgery and was out of work for three months. Upon her return in mid-October 1985, plaintiff's work location was changed in order to keep a distance between plaintiff and the other employees involved in the above incidents; she was later moved to another facility, and her job assignment was modified.

 Plaintiff disagreed with the process and the findings, and objected to any further meetings with management unless there was positive news on her behalf.

 In June, 1986 plaintiff filed a state court defamation suit against the computer trainer.

 In December, 1986 plaintiff became upset after a meeting with her supervisors discussing among other topics:

 (1) her most recent performance appraisal in which her rating was reduced from "2" to "3," and

 (2) the employer's provision of legal representation for the computer trainer, but not for her, in her lawsuit against him. *fn14"

 Plaintiff claims that the employer's handling of these matters constituted "continuing harassment" that led to "a severe recurrence of her atypical trigeminal neuralgia, requiring hospital treatment." Complaint P 13. *fn15"

 In this instance and in other situations, drastically divergent perceptions of what occurred or was happening made it virtually impossible for plaintiff and her supervisors to coordinate their efforts. This is illustrated by plaintiff's version of her reason for picketing some time in March 1987 near the employer's grounds by holding up a sign carrying a one-word message, "Why." As relayed through her physician to the employer in a document submitted to the court, this was a "subdued move" to indicate the "extreme stress connected with the suit" against the computer trainer and to "demonstrate her plight" because of the employer's provision of legal representation for the trainer. *fn16"

 Mandatory disability had been first considered with respect to plaintiff in early 1986. Plaintiff's managers had by-passed the administrative approach leading to possible termination without benefits *fn17" and applied instead, in accordance with company policy, for her placement on the employer's Mandatory Disability Insurance Plan ("mandatory disability" or "MDIP"). *fn18"

 A handwritten record of a February, 1986 medical disability panel review meeting contains the following note by an attorney: "Had no problem with case. 'Someone not unsat [unsatisfactory] today - can you force her out of business.' Yes. MDIP." *fn19" The reviewing authorities, however, rejected any such action on the grounds ...

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