Opinion
No. 1:96cv225-C.
October 24, 1997.
MEMORANDUM OF DECISION
THIS MATTER having come before the court on defendant's Motion for Summary Judgment, and defendant having been allowed additional time to respond and show the "adverse employment action" upon which his claim against the Secretary under the Rehabilitation Act is premises, and having conducted a second hearing, the court enters the following findings, conclusions, and decision in accordance with 28, United States Code, 636(c).
FINDINGS AND CONCLUSIONS
I. Background
This is the fourth in a series of cases filed by plaintiff concerning his federal employment at the Veterans Administration Hospital in Oteen, North Carolina. In a "Request to Take Judicial Notice," plaintiff asks this court to take judicial notice of all of his filings in two of such cases, Hoffman v. Crouch, 1:96cv281-T and Hoffman v. Refenes, 1:96 cv 282-T, (actions under the common law of North Carolina for libel and slander) arguing that:
the present action is based in some measure on the facts that were established in such filings. While the bulk of the filings has [sic] been, in essence, repeated in this action, there are a number of such documents which are relevant to the plaintiff's opposition to summary judgment in this case.
Request to Take Judicial Notice, at 1. The request will be allowed, but the whole record, rather than just plaintiffs evidence, will be considered.
On April 14, 1995, plaintiff informally contacted an Equal Employment Opportunity counselor at the VA, alleging discrimination, harassment, reprisal, and failure to accommodate his disability, Post-Traumatic Stress Disorder ("PTSD"). Inasmuch as the counseling process did not result in an outcome satisfactory to plaintiff, he filed a formal complaint of discrimination with the Equal Employment Opportunity Commission on June 12, 1995, which resulted in a finding of no discrimination. Three additional EEO complaints of discrimination were filed by plaintiff on November 18, 1995. On September 10, 1996, plaintiff filed this action, which concerns all four of his EEO complaints. The EEOC dismissed the three complaints comprising plaintiffs November 1995 filing in accordance with 29, Code of Federal Regulation, Part 1614.107 (c), inasmuch as such pending administrative complaints formed the basis of a pending civil action in federal court.
Plaintiff is a civilian employee of the Veterans Administration, working as an engineering technician at the VA Medical Center ("VA") in Oteen, North Carolina. He began his employment with the hospital in January 1991 as a kitchen helper and, through merit promotions, has advanced to the position of engineering technician at the G.S.-8 level. His last promotion was in December 1995, when he promoted from a G.S.-7 to G.S.-8. A veteran of the Vietnam war, plaintiff has suffered from Post-Traumatic Stress Disorder ("PTSD") throughout his period of employment. During his five years of employment with the VA, plaintiff has received five promotions. Two promotions have come during the time plaintiff contends he has been discriminated against by his employer. In addition to promotions, plaintiff has received three performance awards — a one-time cash bonus — two of which were received during the period of alleged discrimination.
Essentially, plaintiff contends in this action that the protections afforded him under the Rehabilitation Act were violated when fellow workers, Refenes and Crouch, began harassing him in August 1994 as retaliation for complaints plaintiff had made against them as a "whistle blower." Plaintiff contends that such acts of retaliation by co-workers amounts to a violation of the Rehabilitation Act because his co-workers knew that he suffered from PTSD and such acts annoyed him and caused his stress and PTSD to worsen. Plaintiff also contends that VA management retaliated against him after he filed his first complaint of discrimination in April 1995.
Under the Rehabilitation Act, plaintiff requested in March 1995 that VA management provide him with the following accommodations:
(1) physical separation from the employees who were allegedly harassing him;
(2) that such employees in no way communicate with him; and
(3) precluding co-workers from discussing his behavior and work performance with anyone but plaintiffs direct supervisor.
It is undisputed that the VA agreed to review his request for accommodation, but required plaintiff to release and provide them with medical information needed to determine what accommodations should be made. While he initially agreed to provide such medical records, plaintiff never provided the VA with the requested medical documentation before filing this action.
In an attempt to narrow the focus of this action, plaintiff was provided with an opportunity to argue what adverse employment actions formed the basis of this action. At the hearing, plaintiff described the following actions he contends were adverse:
(1) forced psychiatric examinations in August 1995;
(2) a recommendation that he undergo a "fitness for duty" examination;
(3) reassigned or detailed to the kitchen after testifying;
(4) being reassigned from the "wire-pull project" to a bathroom renovation;
(5) allowing a hostile work environment to develop, which consisted of the following acts:
(a) harassment by co-workers (described above);
(b) the conducting of four investigations of plaintiff by management;
(6) failure to promote;
(7) inappropriate intrusions into medical relationship with plaintiffs therapist, when VA management asked such therapist whether plaintiff was in a "militia" and whether he was a danger; and
(8) making "emotional stability" part of job description for positions plaintiff had expressed an interest in.
II. Applicable Standards
A. Standard Applicable to Motions for Summary Judgment
On a motion for summary judgment, the moving party has the burden of production to show that there are no genuine issues for trial. Upon the moving party's meeting that burden, the non-moving party has the burden of persuasion to establish that there is a genuine issue for trial.
When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. In the language of the Rule, the nonmoving [sic] party must come forward with "specific facts showing that there is a genuine issue for trial." Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no "genuine issue for trial."Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (citations omitted; emphasis in the original) (quoting Fed.R.Civ.P. 56). There must be more than just a factual dispute; the fact in question must be material and readily identifiable by the substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). By reviewing substantive law, the court may determine what matters constitute material facts. Anderson, supra. "Only disputes over facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment." Id. at 248. A dispute about a material fact is "genuine" only if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party." Id.
[T]he court is obliged to credit the factual asseverations contained in the material before it which favor the party resisting summary judgment and to draw inferences favorable to that party if the inferences are reasonable (however improbable they may seem).Cole v. Cole, 633 F.2d 1083, 1092 (4th Cir. 1980). Affidavits filed in support of defendants' Motion for Summary Judgment are to be used to determine whether issues of fact exist, not to decide the issues themselves. United States ex rel. Jones v. Rundle, 453 F.2d 147 (3d Cir. 1971). When resolution of issues of fact depends upon a determination of credibility, summary judgment is improper. Davis v. Zahradnick, 600 F.2d 458 (4th Cir. 1979).
B. Standards Applicable to Section 501 Claims Under the Rehabilitation Act
Plaintiff has brought this action under Sections 501 and 504 of the Rehabilitation Act. Section 501 provides that:
no otherwise qualified individual with a disability under in the United States . . . shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity. . . .
As to plaintiffs Section 504 claim, such provision has no application to employment discrimination claims lodged against federal employers. Barth v. Gelb, 2 F.3d 1180 (D.C. Cir. 1993), cert. denied, Barth v. Duffy, 511 U.S. 1030 (1994). Plaintiffs Section 504 claim will, therefore, be dismissed.
Under Section 501, the court looks to the standards enacted in Title I of the Americans with Disabilities Act of 1990, 42, United States Code, Sections 12111-12117. 29 U.S.C. § 791 (g). Under these standards, an employee must show that
(1) he is disabled;
(2) he is qualified, that is he can perform the essential functions of the job with or without reasonable accommodation; and
(3) the agency was aware of plaintiffs disability;
(4) an accommodation was needed inasmuch as a causal relationship existed between the disability and the requested accommodation; and
(5) the agency failed to provide the necessary accommodation.
Gaines v. Runyon, 107 F.3d 1171, 1175 (6th Cir. 1997).
III. Discussion
A. Section 501 Claim
The burden-shifting method of analysis established in McDonnell Douglas Corp. V. Green, 411 U.S. 792 (1973) is applicable to claims brought under the Rehabilitation Act. McGuinness v. United States Postal Serv., 744 F.2d 1318 (7th Cir. 1984). The initial burden is plaintiffs to establish a prima facie case of employment discrimination by a preponderance of evidence. If plaintiff satisfies such requirement, the burden shifts to defendant to produce a legitimate, non-discriminatory reason for the adverse employment action. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If defendant satisfies his burden, the burden again shifts back to the plaintiff to show that the reason given by the Secretary is mere pretext for discrimination. Id. To make out a prima facie case of discrimination in employment based on disability under Section 501, plaintiff must proffer evidence that would support a finding in his favor on each of the five elements discussed above.
B. A Section 501 Prima Facie Case
1. First Element
For the limited purpose of the pending motion, the court has assumed that plaintiff is disabled, satisfying the first element of a Section 501 claim.
2. Second Element
As to the second element, it is plaintiffs burden to come forward with evidence that he is a qualified individual, that is, he can perform the essential functions of the job with or without reasonable accommodation. In this case, the accommodations sought by plaintiff were separation from co-workers and, in effect, a gag order prohibiting other employees from discussing his performance with anyone other than his immediate supervisor. Clearly, the ability to work closely with others is an essential requirement of an engineering position in a major hospital, when the duties of such job entailed planning and coordinating renovations with other engineers and contractors. Plaintiff cannot, therefore, satisfy the second element of a Section 501 claim.
3. Third Element
Assuming arguendo that plaintiff satisfied the second element, the court assumes that defendant was aware of plaintiffs PTSD.
4. Fourth Element
To satisfy his initial burden on the fourth element, plaintiff must show that an accommodation was needed inasmuch as a causal relationship existed between the disability and the requested accommodation. The record is undisputed that when plaintiff presented his request for accommodation, the defendant agreed to review the request if plaintiff provided medical documentation that supported his request and explained his functional limitations. While plaintiff agreed to release such records to his employer, he failed to ever provide such records even after he received numerous requests. Eareckson Affidavit; EEOC Investigative Report. Plaintiffs steadfast refusal to provide such records extended well into this litigation when he finally provided such records to counsel for defendant. At no time relevant to this claim did plaintiff provide such records to his employer.
The requirement of providing medical documentation is a reasonable one, recognized in the procedures which have developed around the Americans with Disabilities Act. EEOC Enforcement Guidelines: The Americans with Disabilities Act and Psychiatric Disabilities, p. 22-23; ADA Enforcement Guidelines: Preemployment Disability-Related Questions and Medical Examinations, p. 20. The EEOC Enforcement Guidelines, at page 20, provide that an "employer may require reasonable documentation showing that the individual has a covered disability and stating his/her functional limitations." The Court of Appeals for the Fourth Circuit has held that such guidelines "while not controlling upon the courts by reason of their authority do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance."Shafer v. Preston Memorial Hospital Corp., 107 F.3d 274, 276 n. 5 (4th Cir. 1997).
Even without the guidelines, it is just plain common sense that even a hospital-employer is not a medical expert and cannot make decisions related to disabilities and reasonable accommodation is a vacuum devoid of medical findings. It was reasonable for VA management to request plaintiffs medical records, but it was completely without reason for plaintiff to refuse to provide information necessary to determine what, if any, accommodations were necessary. To hold that plaintiff can maintain a claim under the Rehabilitation Act where he failed to provide needed medical records would is an absurdity founded on an illogical premise, to wit, that failure to provide a reasonable accommodation is actionable even where the employee failed to provide the employer with medical information needed to determine whether the accommodation was reasonable. Even if plaintiff had provided the requested medical documentation, it is apparent to this court that his request for segregation from other employees and a gag order would not be reasonable.
Even if plaintiff had provided the requested information, it is highly unlikely that an employer would find the requested accommodations to be reasonable. In Gonzagowski v. Widnall, No. 94-0016. 1995 WL 930486 (D. N.M. Oct. 17, 1995), a similar case involving a federal employee and the Secretary of the Air Force, the district court held:
Requiring Defendant to place Plaintiff in a stress-free, criticism-free, work environment, as suggested by Dr. Hamilton, would be unreasonable. In analyzing the reasonableness of an accommodation under the Rehabilitation Act, an employer is not required to provide a "stress-free environment" or immunize an employee from legitimate job related criticism. Pesterfield v. Tennessee Valley Auth., 941 F.2d 437, 442 (6th Cir. 1991); See also Wilber v. Brady, 780 F. Supp. 837, 840 (D.D.C. 1992) (Rehabilitation Act is designed to put individuals with disabilities on equal footing with non-disabled people in regards to [employment] decisions . . . it is not designed to insulate them from actions which would be taken against any employee regardless of his status).Gonzagowski, 1995 WL, at 7 (up.; copy placed in file). Plaintiff has not satisfied the fourth element.
5. Fifth Element
As to the final element, plaintiff must present evidence that the agency failed to provide the necessary accommodation. It is undisputed that the VA did not provide plaintiff with the accommodation sought; however, it was plaintiff who made it impossible for the employer to determine what, if any, accommodation was necessary.
Beyond such self-imposed roadblock, plaintiff has also failed to show any adverse employment action by his employer. The record is undisputed that plaintiff received five major promotions in his five year service with the VA and also received three bonuses. During the period of discrimination described by plaintiff, he received two of these promotions and two performance awards. In addition, plaintiff contends that VA management subjected him to a number of indignities, such as temporary assignment to the kitchen, interviews he considers to be psychiatric exams, and fitness for duty examinations. When the curtain surrounding such contentions is drawn back, it is apparent that all of such actions were reasonable actions by the VA hospital inasmuch as they were not overly intrusive. As to the reassignment, the record is clear that it was a temporary measure to shield plaintiff from the stress of the EEO investigation that was taking place pursuant to his own complaint. Plaintiff has presented no evidence of "adverse employment action" taken by his employer.
A second theory of adverse employment action proffered by plaintiff is that his co-workers, Refenes and Crouch, retaliated against him for blowing the whistle on activities he considered to be unlawful. Essentially, plaintiff contends, as he did in the libel and slander actions against such coworkers, that they made false written and oral statements about his fitness for duty, behavior, personal hygiene, and occupational competence. For the limited purpose of disposing of the pending motion, the court has assumed over the defendant's argument that the Court of Appeals for the Fourth Circuit would recognize a "hostile work environment" theory of discrimination in a Rehabilitation Act case inasmuch as a number of district court's have found just such a theory valid under the ADA. See McClain v. Southwest Steel Co., Inc., 940 F. Supp. 295, 301-02 (N.D.Okla. 1996); Gray v. Ameritech Corp., 937 F. Supp. 762, 771 (N.D.Ill. 1996); Fritz v. Mascotech Automotive Sys. Group, Inc., 914 F. Supp. 1481, 1492 (E.D.Mich. 1996); Henry v. Guest Services, Inc., 902 F. Supp. 245, 251-52 (D.D.C. 1995); and Haysman v. Food Lion, Inc., 893 F. Supp. 1092 (S.D.Ga. 1995). The court has assumed that a disability-based hostile environment claim is actionable under the Rehabilitation Act.
To establish a hostile work environment claim, plaintiff must show that the alleged conduct was so severe or pervasive that it created an abusive working environment and in fact affected his well-being in the workplace. Mentor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986); Harris v. Forklift Sys., Inc., 510 U.S. 17 (1982). In the context of a Rehabilitation Act claim, plaintiff must also show that the harassment was based on his disability.
In this case, plaintiffs claim of a hostile work environment fails on several levels. Foremost, plaintiff contends that the acts of his co-workers were in retaliation for his own Whistle Blower complaint rather than based on his disability. The only tie between the alleged conduct and the disability is plaintiffs contention that such co-workers knew of his disability and knew that he was more prone to the pressure and stress associated with the making of unfavorable complaints and comments.
In Harris, a four-factor test was developed by the United States Supreme Court for determining whether a hostile work environment exists:
(1) the frequency of the discriminatory conduct;
(2) the severity of the discriminatory conduct;
(3) whether the discriminatory conduct is physically threatening or humiliating, or a mere offensive utterance; and
(4) whether the discriminatory conduct unreasonably interferes with an employee's work performance.
Harris, supra. In this case, the conduct by Refenes and Crouch with which plaintiff takes issue is described in the actions he filed in this court against such co-workers and in paragraphs 14, 15, and 23 of his first affidavit, paragraphs 7 and 8 of his second affidavit, paragraphs 14, 44, and 46 of his third affidavit, and paragraphs 4, 46, and 47 of his fourth affidavit.
While allegations of incompetence and bizarre and threatening behavior are unwelcome regardless of their veracity, the incidents were isolated occurrences inasmuch as they came from only two co-workers, they were unremarkable and more akin to counter accusations made by people who believed they had been falsely accused of criminal activity, the comments amounted only to offensive utterances, and none of them should have impacted plaintiffs work environment as a whole. Indeed, the lack of on-the-job impact is apparent based on consistent promotions during the period and performance bonuses. In any event, plaintiff has not shown that such activities were based on his disability. The Supreme Court held unequivocally in Harris that the "'mere utterance of an . . . epithet which engenders offensive feelings in an employee' does not sufficiently affect the conditions of employment to implicate Title VII." Harris, 510 U.S. at ___ , 114 S.Ct., at 370. Viewing all of plaintiffs allegations of a hostile work environment collectively, they do not show a hostile work environment claim under Harris. Even if they did, liability would only attach where the employer, once it had notice failed to remediate. In this case, notice would have occurred when plaintiff filed his request for accommodation, but this is a circular argument, because plaintiff failed to provide his employer with medical information necessary to make a determination of whether such accommodations would be reasonable.
There is simply a central problem with the packaging of plaintiffs complaints as an action under the Rehabilitation Act. There is no causal connection between the retaliation which he claims created a hostile work environment and his disability. If there is a cause of action on these facts, it is likely to be found under the Whistle Blower Act.
C. Alternative Reasons for Dismissal
1. Failure to Exhaust Administrative Remedies
Plaintiff did not first exhaust his administrative remedies before filing suit in this court. Just as with employees in the private sector, federal employees must first exhaust their administrative remedies before pursuing recourse in federal court. Brown v. General Services Administration, 425 U.S. 820 (1976). Even though the Rehabilitation Act is silent as to such requirement, the overwhelming authority is consistent with such requirement, but has been found in cases where federal employees allege disability discrimination. Khader v. Aspin, 1 F.3d 968 (10th Cir. 1993); Myers v. Hose, 50 F.3d 278 (4th Cir. 1995). The practical importance of such provision is evident where, as here, plaintiff second series of EEO complaints were dismissed without administrative decision when plaintiff peremptorily filed this civil action. Indeed, for the remedial provisions of the Rehabilitation Act to be given effect, administrative channels should first be exhausted. Otherwise, the federal courthouse will become the situs of first recourse when federal employees are dissatisfied with the actions of their employer or co-workers.
2. Stale Claims
Plaintiff also contends in this action that his not being promoted to a G.S-9 engineering position was based on disability-based discrimination. The job was posted in October 1993 and filed in December 1993 by the hiring of Larry Crouch.
As a preliminary hurdle, plaintiff never applied for such position. Plaintiff cannot reasonably expect or argue that it was a violation of the Rehabilitation Act for defendant to not hire him for a position he did not apply for in the first place. Putting this major hurdle aside, 29, Code of Federal Regulation, Part 1614.105(a)(1) provides that "an aggrieved person must initiate contact with a Counselor within 45 days of the date the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action." Mr. Crouch having started work in December 1993, plaintiffs April 1995 contact with an EEO counselor was simply untimely.
3. Failure to Participate in the "Interactive" Process
As discussed above, plaintiff, while having filed a request for accommodation, failed to participate in the "interactive" process, which partners the employer with the disabled employee in reaching a solution.See Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667 (1st Cir. 1995). In this case plaintiff failed to participate in such process when he failed to support his request with medical records. Where an employee fails to provide necessary information in face of numerous requests from the employer, it is the employee who is at fault in the breakdown of the administrative process. Beck v. University of Wisconsin Board of regents, 75 F.3d 1130 (7th Cir. 1996). For this reason, plaintiffs complaint, which attacks the result obtained in the administrative process under the Rehabilitation Act, must also be dismissed for lack of good faith in the administrative process, resulting in a failure to exhaust those administrative remedies.
IV. Conclusion
For the reasons discussed above, the court will grant defendant's Motion for Summary Judgment. A judgment consistent with this memorandum will be entered simultaneously herewith.