Barbara E. Von Thun, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionDec 4, 2003
01A23997 (E.E.O.C. Dec. 4, 2003)

01A23997

12-04-2003

Barbara E. Von Thun, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


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.