01A23997
12-04-2003
Barbara E. Von Thun v. Department of Veterans Affairs
01A23997
December 4, 2003
.
Barbara E. Von Thun,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A23997
Agency Nos. 980988 & 983006
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
in violation of the Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. Sec. 791 et seq. The appeal
is accepted pursuant to 29 C.F.R. Sec. 1614.405. For the following
reasons, the Commission AFFIRMS the agency's final decision.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Registered Nurse at the agency's Columbia, Missouri
facility. Complainant sought EEO counseling and subsequently filed formal
complaints on February 25, 1998, and August 12, 1998 alleging that she was
discriminated against on the basis of disability (shoulder injury) when:
(1) she was harassed by the following actions:
(a) she was moved into a different room and was not provided with all
of the equipment necessary to perform her job;
(b) denied permission to work overtime;
c) deadlines were set that were not required by the Nursing Service
Quality Improvement Plan;
(d) a supervisor complained about complainant's use of sick leave but
not about sick leave usage by others;
(e) an outside reviewer was brought in to train complainant but
complainant learned nothing and the reviewer said that complainant
was the problem;
(f) complainant was monitored by a supervisor's secretary, who
disrupted complainant's work, and complainant was denied adequate
clerical support;
(g) patient charts were taken away from complainant;
(h) a supervisor regularly criticized complainant's work; and
(i) complainant, unlike others, was required to write down what she
did every day.
(2) complainant was denied a reasonable accommodation for her disability.
At the conclusion of the investigations, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
initially requested a hearing but later withdrew the request.
Accordingly, the agency issued a consolidated final decision in which
it determined that complainant had not been discriminated against.
From that decision, complainant brings the instant appeal.
Harassment
Complainant contends that she has been subjected to harassment in the
workplace because of her disability. Harassment of an employee that
would not occur but for the employee's race, color, sex, national origin,
age, disability, or religion is unlawful. McKinney v. Dole, 765 F.2d
1129, 1138-1139 (D.C. Cir. 1985). In Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of
Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment
is actionable if it is sufficiently severe or pervasive to alter the
conditions of the complainant's employment. The Court explained that
an "objectively hostile or abusive work environment [is created when] a
reasonable person would find [it] hostile or abusive:� and the complainant
subjectively perceives it as such. Harris, supra at 21-22.
To establish a prima facie case of hostile environment harassment,
a complainant must show that: (1) s/he is a member of a statutorily
protected class; (2)s/he was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class;
(3) the harassment complained of was based on the statutorily protected
class; and (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive
work environment. Humphrey v. United States Postal Service, EEOC Appeal
No. 01965238 (October 16, 1998); 29 C.F.R. Sec.1604.11.
Whether the harassment is sufficiently severe to trigger a violation of
Title VII [and the Rehabilitation Act] must be determined by looking at
all the circumstances, including the frequency of the discriminatory
conduct, its severity, whether it is physically threatening or
humiliating, or a mere offensive utterance, and whether it unreasonably
interferes with an employee's work performance. Harris v. Forklift
Systems, 510 U.S. 17 (1993).
In this case, we conclude that, even if we assume that complainant
is a person with a disability, complainant has not made out a prima
facie case of disability-based harassment. The most serious failure
of proof is the lack of any evidence to suggest that the allegedly
harassing events were undertaken because of complainant's disability.
Complainant has not shown that the alleged harassers made any statements
that would support an inference that their actions were motivated by
any animus against persons with disabilities. Rather, it appears to
us that actions about which complainant complains are the result of the
supervisor's perception that complainant's performance was substandard.
Criticism motivated by concerns over poor performance, even where the
employee in question has a disability, is not improper.<1> For this
reason, complainant's harassment claim must fail.
Reasonable Accommodation
Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 791
et seq., prohibits discrimination on the basis of disability and
requires agencies of the Federal government to make reasonable
accommodation to the known physical or mental limitations of qualified
employees with disabilities, unless the agency can demonstrate
that accommodation would prove to be an "undue hardship." 29
C.F.R. Sec. 1614.203(b) and (c). A "person with a disability" is
one who: (1) has a physical or mental impairment that substantially
limits or restricts one or more of his or her major life activities;
or (2) either has a record of such impairment or is regarded as having
the impairment. 29 C.F.R. Sec. 1614.203(a). "Major life activities"
include such functions as caring for one's self, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning,
and working. 29 C.F.R. Sec. 1614.203(a)(3). To establish a prima
facie case of discrimination based on a failure to accommodate a
disability, complainant must show: (1) that she is a "person with
a disability" for purposes of the Rehabilitation Act, as defined
in 29 C.F.R. Sec. 1614.203(a); (2) that she is a "qualified person
with a disability," in that she is qualified for and can perform the
essential elements of the position at issue with or without reasonable
accommodation, as specified in 29 C.F.R. Sec. 1614.203(a)(6); and (3)
that she received an adverse employment action as a result of her
disability. Arneson v. Heckler, 50 FEP Cases 451 (8th Cir. 1989);
Treadwell v. Alexander, 707 F.2d 473 (11th Cir. 1983); Prewitt
v. U.S. Postal Service, supra. In addition, initially, complainant
must make at least a facial showing that her disability can be
accommodated. Treadwell v. Alexander, supra at 477-78.
Complainant contends that the agency failed to provide a reasonable
accommodation for her shoulder condition which prevented her from
performing her duties, most of which involved using a computer,
adequately.<2> However, the record indicates that the agency provided
the following accommodations to complainant: a "ramp" near the computer
to rest her forearm; an ergonomic chair; pencil "grips"; and an ergonomic
computer keyboard. The agency assigned an industrial hygienist to inspect
complainant's workspace and recommend possible reasonable accommodations
for complainant. She testified that complainant was provided with all
accommodations complainant requested.
The agency is not obligated to provide complainant with her chosen
accommodation. See EEOC Enforcement Guidance: Reasonable Accommodation
and Undue Hardship under the Americans with Disabilities Act, EEOC Order
No. 915.002, question 9 at 17 - 18 (March 1, 1999). It must provide only a
reasonable accommodation that allows complainant to perform the essential
functions of her job. Id. We find that the agency made reasonable efforts
to provide appropriate accommodations for complainant's disability.
It is required to do no more,
CONCLUSION
For the foregoing reasons, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days
of receipt of another party's timely request for reconsideration. See
29 C.F.R. Sec. 1614.405; Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. Sec. 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. Sec. 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sec. 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. Secs. 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to
file a civil action. Both the request and the civil action must be
filed within the time limits as stated in the paragraph above ("Right
to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 4, 2003
__________________
Date
1The question of whether complainant was
improperly denied a reasonable accommodation is a separate matter
with which we deal below. We note, however, that the Commission has
held that an employer is not required to lower production standards -
whether qualitative or quantitative- that are applied uniformly to
employees with and without disabilities. See 29 C.F.R. Sec. 1630.2(n);
Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under
the Americans With Disabilities Act (March 1, 1999), at 4..
2In addressing this contention, again we will assume, arguendo, that
complainant established a prima facie case of discrimination based on
a failure to accommodate.