PANTAZES v. JACKSONPANTAZES v. JACKSON
Plaintiff Peter Pantazes has brought suit against the Secretary of the Department of Housing and Urban Development (“HUD“) under the Rehabilitation Act,
BACKGROUND
Plaintiff Peter Pantazes has been employed at HUD since 1991, where he has performed various types of financial analyses. (Pl.‘s Ex. 3 (Pantazes Decl.) at 1-2.) In December 1999, plaintiff was promoted to GS-14 and assigned new duties as a Loan Finance Specialist at HUD‘s Office of Community Planning and Development (“CPD“). (Id.; Def.‘s Revised Ex. 2 (Notification of Personnel Action dated Dec. 5, 1999).) About a week later, plaintiff suffered congestive heart failure and a stroke, which damaged his optic nerve, leaving him permanently unable to see in the left visual field, generally diminished his visual acuity, and resulted in short term memory loss and easy distractability. (Pl.‘s Ex. 1 (Mar. 15, 2000 letter from Dr. Whicker of Neurological Medicine, P.A.); Pl.‘s Ex. 3 at 1-2.) Plaintiff also suffered from depression as a result of his poor physical condition. (Pl.‘s Ex. 2 (Mar. 28, 2000 letter from psychiatrist Dr. Ganjoo).) In order to “decrease his depression and increase his self-esteem,” plaintiff was to return to his routine, including to work at HUD. (Id.) Plaintiff‘s psychiatrist noted that for Pantazes “to do his work he needs appropriate equipment for the needs of his disability.” (Id.) His neurologist stated that plaintiff “needs visual accommodations including but not limited to a 21 inch computer monitor, a small TV screen [in addition to the monitor, for magnifying paper documents], large print books and magnifying aids.” (Def.‘s Ex. 4 (prescription of April 3, 2000 by Dr. Whicker).) Plaintiff‘s occupational therapist and speech-language pathologist stated that “to optimize his work performance, we have recommended that Mr. Pantazes try to increase the
In March 2000 plaintiff returned to work and submitted to his supervisor, Paul Webster, the above-referenced medical documentation (Pl.‘s Ex. 3 at 2), as well as a letter signed by plaintiff requesting various accommodations, including office supplies, training in the work of the department to which he had been promoted just before his stroke, re-training in various computer programs as a result of his stroke, large print reference materials, a “computer monitor screen shade to stop glare,” and a “large adjustable desk magnifier with fluorescent lamp.” (Pl.‘s Ex. 5.) He further stated that, “to assist in preventing eye fatigue and migraine, [he] would appreciate a small couch or large soft chair with flourescent floor lamp behind it for reading so I may continue my work; to be able to change positions keeps me alert.” (Id.) He noted that “I will pay for a small refrigerator & microwave, unless HUD can supply one. Need this for special dietetic, salt free and fat free foods, I will pay for it, if need be. Can no longer eat commercially prepared foods in cafeteria.” (Id.)
About a week after HUD received the accommodation request and supporting medical documentation, Linda Grant, Director of CPD‘s Management Division, called a meeting with Hugh Allen, plaintiff‘s team leader (Def.‘s Ex. 6 (Allen Aff.) at 7) and several other HUD officials to discuss plaintiff‘s requests. (Def.‘s Ex. 7 (Grant Aff.) at 4-5.) The HUD officials decided that Allen would order the requested ordinary office supplies, and according to Grant,
Plaintiff contends that, other than a few contacts with Allen about basic supplies, he heard nothing about his accommodation requests for the four months after returning to work. In August 2000, however, Pantazes was directed to resubmit his accommodation request on HUD Form 1000. (Pl.‘s Ex. 3 at 4.) Allen confirmed that he only spoke with plaintiff about office supplies, and Allen could not recall ever mentioning Form 1000 or the need for further paperwork to Pantazes. Allen nonetheless acknowledged that it would be “my responsibility to make management and the administrative support or staff aware of any requests and then ask for assistance in addressing and assessing the [accommodation] requests.” (Def.‘s Ex. 6 at 6-8, 11.) Grant‘s testimony contradicts Allen‘s statement, since she claims that she mentioned to Allen “the need for a formal request so that we could get information from [plaintiff‘s] doctor to
However, HUD staff promptly lost the Form 1000 and the accompanying 26 pages of attachments which Pantazes had already submitted on three prior occasions during the preceding five months. (Pl.‘s Ex. 3 at 4; Ex. 7.) At this point, Pantazes submitted his documentation for the fourth time. (Pl.‘s Ex. 3 at 4.) After another delay of several months, Pantazes was informed on December 5, 2000, by Linda Johnson, Chief of the Human Resources Division, that his HUD 1000 form could not be processed until he signed a medical release. Apparently in the interim, Johnson had been communicating with Pantazes’ supervisor about getting such a release signed, but no action had been taken. (Def.‘s Ex. 7 (Grant Aff.) at 8.) Pantazes had been told nothing of the need for such a release. (Pl.‘s Ex. 3 at 5.) Once Johnson contacted Pantazes directly, plaintiff tried to get the required form as directed by Johnson, but the designated HR contact
In September 2000 HUD claims it outfitted plaintiff‘s computer with and provided him training on MAGic, “HUD‘s standard software provided to low-vision users for screen magnification capability.” (Def.‘s Ex. 8 (Weathers (Acting Director, Customer Service Division, Office of Technology Operations) Decl.) at 2.) Plaintiff, however, “has no memory of this whatsoever and I believe I would recall it if it had been done.” (Pl.‘s Ex. 3 (Pantazes Decl.) at 3.) Plaintiff does not dispute, however, that in that month HUD installed a large screen monitor at his workstation. (Def.‘s Ex. 8 at 2; Pl.‘s Ex. 3 at 3.) In any event, neither party maintains that the MAGic software was on plaintiff‘s computer during the following two years. (Def.‘s Ex. 8 at 2-3 (contending MAGic was removed at plaintiff‘s direction); Pl.‘s Ex. 3 at 6-7.)
In October 2000 Pantazes submitted further medical documentation to his supervisors. Opthamological specialists at Johns Hopkins Hospital had evaluated plaintiff in order “to provide assistance and recommendations to Mr. Pantazes to maintain his employment.” In their letter, the doctors suggested solutions to “greatly enhance [plaintiff‘s] work” by addressing “difficulties with restricted field vision in the performance of everyday tasks specifically reading his computer screen and overhead projector presentations at work.” They recommended the software Zoomtext Level 2 (at a cost of $595), which enlarges computer text, reverses its color to white on black, and provides speech output. They further recommended a program to provide variable speed speech output of text, as well as bioptic glasses. (Pl.‘s Ex. 13 (Oct. 12, 2000 letter from
Eleven months after plaintiff submitted his accommodation request, a HUD representative, Deborah Rizzo, contacted plaintiff to discuss his situation and needs in February 2001. (Id.) She arranged for plaintiff to be evaluated by Kathy Eng, an ergonomics vision specialist at the USDA Target Center. (Def.‘s Ex. 10 (Rizzo Decl.) at ¶ 7.) After overcoming several scheduling difficulties, Eng performed a needs assessment for reasonable accommodations with Mr. Pantazes on March 7, 2001. The Target Center‘s recommendations were guided by the principle that they should be “cost effective with the employee‘s health and safety as the highest priority.” The Center subsequently informed Rizzo that it “supports the accommodation recommendations made by [plaintiff‘s] medical team.” (Pl.‘s Ex. 11 (USDA‘s April 18, 2001 letter).) Similarly, HUD‘s consultant, Federal Occupational Health physician Dr. Neal Presant, evaluated plaintiff‘s requested accommodations and spoke with his various physicians. He supported the Target Center‘s decision to defer to the recommendations of plaintiff‘s opthamological specialists concerning plaintiff‘s need for Zoomtext magnification software, a 21 inch computer monitor, a Closed Circuit Televiewer (“CCTV“) to display magnified images of hard-copy, paper documents, large print books, and other similar accommodations. (Pl.‘s Ex. 14 (May 2, 2001 letter from Dr. Presant to Rizzo).)
The record reveals no further actions by defendant during the subsequent five months regarding the identification or provision of the proper accommodations for plaintiff‘s disability. Then in October 2001, Grant scheduled yet another evaluation of plaintiff, this time by the Columbia Lighthouse for the Blind. (Def.‘s Ex. 1 (Grant Decl.) at 3-4.) However, the
Six months later, in April 2002, various HUD officials once again began discussing how to accommodate plaintiff‘s needs. (Def.‘s Ex. 10 at ¶¶ 16-18.) During the following three months, the agency explored what type of software to install to address plaintiff‘s low vision impairment. (Id.) HUD maintains that it could not install the Zoomtext software recommended by plaintiffs’ physicians, because it was incompatible with the agency‘s computer system at the time. (Def.‘s Ex. 8 at 3.) When Pantazes installed a trial version of the Zoomtext software himself on his work machine and was able to use it without incident, the agency promptly removed it. (Pl.‘s Ex. 3 at 7.) In November 2002, over Pantazes’ objection, MAGic was reinstalled on his machine after HUD determined, based on a letter from Columbia Lighthouse for the Blind comparing MAGic and Zoomtext, that the programs were “the two leading screen magnification software packages used by federal agencies,” and that MAGic was “the appropriate software to install on Mr. Pantazes’ workstation to accommodate his low vision impairment.” (Def.‘s Ex. 10 at ¶¶ 18-19.)1 Pantazes, however, claims that MAGic is not an effective accommodation for his visual impairment, because it magnifies text too much, meaning that it often overflows the screen and thereby slows his performance, whereas Zoomtext has
At the same time, two and a half years after receiving medical documentation supporting plaintiff‘s request for a CCTV, HUD installed such a system at plaintiff‘s workspace. (Def.‘s Ex. 8 at 4.) However, the CCTV is hooked up to the same monitor as plaintiff‘s computer, meaning that Pantazes cannot simultaneously use the CCTV to look at a paper document while also having access to his computer‘s programs, which significantly diminishes the utility of the CCTV system and slows Pantazes’ work pace. (Pl.‘s Ex. 3 at 8.) In effect, plaintiff must use the CCTV system to magnify a page, then remember a few words while he switches to a computer program, then type the words, then switch back to the CCTV magnification and begin the entire process again. (Pl.‘s Resp. to Def.‘s Stmt. of Material Facts at ¶ 17.)
For the period from October 22, 2002 to April 3, 2003, when plaintiff purportedly had “full accommodations” (Def.‘s Ex. 1 (Grant Decl.) at 5), notwithstanding defendant‘s admission that the CCTV, for instance, was not installed until November 22, 2002 (Def.‘s Ex. 8 at 4), plaintiff was rated unacceptable at the job tasks of processing and reviewing loan guarantee applications and administering and monitoring guaranteed loans. (Def.‘s Ex. 12 (Progress Review Record signed by Rating Official Webster).) Plaintiff acknowledged receipt of this document by writing in his signature space that he “did not receive proper training due to handicaps” and that he lacked the proper equipment. (Id.) As a result of this rating, he was placed on an “Opportunity to Improve Plan” on August 5, 2003, but the agency has not yet taken any disciplinary action against him. (Def.‘s Ex. 1 at 5.)
Pantazes also asserts that in December 2000 he asked Laura Marin, Director of Technical Assistance and Management in the division where he works, why it was taking so long to provide the accommodations requested by his physicians, and she allegedly responded, “I don‘t care if it takes nine months or nine years. We will determine what is a reasonable accommodation not letters from your doctors. If you don‘t like it you can quit. You‘ve been a trouble maker for some time now.” (Def.‘s Ex. 7 at 11; Pl.‘s Ex. 3 at 8.) In addition, Hugh Allen, plaintiff‘s team leader, purportedly told plaintiff “you‘re not disabled,” “you‘re faking,” and “there is nothing wrong with you.” (Compl. ¶ 6; Pl.‘s Ex. 15.)
ANALYSIS
I. Standard of Review
Under
In considering a motion for summary judgment, the “evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Liberty Lobby, 477 U.S. at
II. The Rehabilitation Act
Plaintiff‘s claims arise under the Rehabilitation Act, which provides, inter alia, that “no otherwise qualified individual with a disability” may be discriminated against by a federal agency “solely by reason of her or his disability.”
Under the ADA, discrimination includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.”
To make out a claim under the Act, plaintiff must present direct evidence of discrimination based on his disability, or he may provide indirect evidence of discrimination. For certain Rehabilitation Act claims, the three-step burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies. Duncan v. WMATA, 240 F.3d 1110, 1114 (D.C. Cir. 2001) (en banc). But as the D.C. Circuit has noted, that “test is not equally applicable to all cases” alleging disability discrimination. Barth v. Gelb, 2 F.3d 1180, 1186 (D.C. Cir. 1993). In particular, in a reasonable accommodation case, plaintiff “carries the burden of proving by a preponderance of the evidence that [he] has a disability, but with a reasonable accommodation (which [he] must describe), [he] can perform the essential functions of [his] job.” Flemmings v. Howard Univ., 198 F.3d 857, 861 (D.C. Cir. 1999). This approach governs cases “(1) where the employer claims non-discriminatory reasons for its adverse employment action; [and] (2) where the employer maintains that the employee is not an otherwise qualified individual with a disability, or that no reasonable accommodation is available, so that the plaintiff falls outside the scope of ADA protection.” Id. (citing Barth, 2 F.3d at 1186). Therefore, it applies here to plaintiff‘s claims relating to HUD‘s alleged failure to provide him with reasonable accommodations and access to information technology comparable to that available to other federal employees.
III. Plaintiff‘s Reasonable Accommodation and Comparable Technology Claims
To make out a prima facie case of discrimination under the Rehabilitation Act for failure to accommodate, see
Defendant argues that it should prevail because plaintiff was not a qualified disabled individual for purposes of the Act; plaintiff could not perform his job even with accommodations; and in any event, HUD has now offered plaintiff suitable accommodations. Defendant does not contest that it had notice of plaintiff‘s disability in March 2000, when he submitted a packet of documents to support his requested accommodations. (Def.‘s Mot. at 17.)2 Defendant first argues that Pantazes cannot satisfy the first prong becuse he is not a qualified disabled individual on the grounds that he cannot perform the essential functions of his
Here, plaintiff has presented evidence that he can perform his job with accommodations such as Zoomtext, a separate CCTV system for magnification, and proper lighting. His doctors, as well as the agency‘s specialists, have said as much. Rather, HUD‘s argument hinges on the notion that plaintiff is not “qualified” because he purportedly rejected various accommodations that had been offered. See
Defendant‘s argument fails for several reasons. First, it is at odds with defendant‘s admission that “with the accommodations provided to Complainant, he is able to perform the
Moreover, even if the Court were to consider defendant‘s contradictory argument, there are material questions of fact that preclude summary judgment. For instance, the parties dispute whether accommodations that Pantazes purportedly rejected, thereby rendering him unqualified in defendant‘s view, were in fact provided to him. HUD maintains that MAGic was installed and removed from plaintiff‘s computer in September 2000 (Def.‘s Mot. at 23), but plaintiff claims that the software was never installed until November 2002. (Pl.‘s Ex. 3 at 6.) In any event, such software has been installed on plaintiff‘s machine for the past two-and-a-half years, so if this software in fact accommodates his disability, as argued by defendant, it is difficult to see how any previous delay in the software installation renders him “unqualified” at this late date.
Defendant further argues that plaintiff is unqualified because he was never evaluated by Columbia Lighthouse for the Blind. (Def.‘s Mot. at 24.) Whether Columbia‘s evaluation was ever rescheduled, after initially being set on a day when plaintiff does not work, is disputed. In any event, plaintiff was evaluated by several other agency specialists, all of whom agreed with plaintiff‘s medical specialists, so it is difficult to understand the significance of the lack of evaluation by Columbia.
Finally, defendant argues that plaintiff is unqualified because he has not shown that he can perform his job notwithstanding the accommodations he rejected, and to support this
With respect to the third prong, plaintiff has at least raised an issue of fact as to whether he could perform the essential functions of the position with reasonable accommodation given HUD‘s March 2002 admission that plaintiff can “perform the essential functions of his position during his normal tour of duty” (Def.‘s Ex. 11 at 3), as well as plaintiff‘s evidence that he can indeed do his work if given the accommodations recommended by numerous specialists. For instance, Johns Hopkins’ Dr. Park recommended several accommodations (i.e., certain magnifiers and software) that would enable plaintiff to “perform his occupational role.” (Pl.‘s Ex. 12; see also Pl.‘s Ex. 13.) Plaintiff further notes that he was an excellent performer at HUD
Finally, defendant contends that HUD has in fact made reasonable accommodations for plaintiff, as required by the fourth prong of the applicable test. Defendant is correct that, simply because an accommodation preferred by an employee is available, an employer need not offer that particular accommodation so long as a reasonable alternative is provided. See Hankins v. Gap, Inc., 84 F.3d 797, 800-01 (6th Cir. 1996) (citing Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68-69 (1986)). Moreover, as explained in the appendix to the ADA regulations, “the employer providing the accommodation has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide.”
The difficulty with defendant‘s position is that, in light of factual disputes, it cannot be concluded as a matter of law that the accommodations HUD provided to plaintiff were reasonable. For instance, it is unclear whether the two software magnification programs, Zoomtext and MAGic, are in fact equally effective. Plaintiff‘s experts, as well as several specialists retained by defendant, endorsed only Zoomtext as the proper accommodation. Also, the fact that MAGic is “HUD‘s standard software provided to low-vision users for screen magnification capability” (Def.‘s Ex. 8 at 2; Def.‘s Mot. at 18) is not dispositive. “It is plain enough what ‘accommodation’ means. The employer must be willing to consider making changes in its ordinary work rules, facilities, terms, and conditions in order to enable a disabled individual to work.” Vande Zande v. Wisconsin Dep‘t of Admin., 44 F.3d 538, 542 (7th Cir. 1995). See also U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 397 (2002) (“By definition, any
Furthermore, it is disputed whether the agency engaged in good faith in the “interactive process” for identifying reasonable accommodations. Once aware of its responsibility to provide a reasonable accommodation, “the employer must make a reasonable effort to determine the appropriate accommodation. The appropriate accommodation is best determined through a flexible, interactive process that involves both the employer and the [employee] with a disability.”
Here, the interactive process began in March 2000, when defendant concedes it received a packet of information from Pantazes about his disability, including a request for accommodations. Defendant argues that it “engaged in the interactive process with Plaintiff and acted in good faith to obtain the necessary accommodations,” and that plaintiff was the cause for the delay in the interactive process. (Def.‘s Mot. at 19.) However, reviewing the record in the light most favorable to plaintiff, the Court cannot agree with defendant‘s characterization. On the contrary, a jury could view HUD as the party responsible for the nine-month delay in communicating to plaintiff about the need for paperwork, such as a medical release, as well as the additional delays that occurred later in the interactive process. Accord Breen v. Dep‘t of Transp., 282 F.3d 839, 844 n.7 (D.C. Cir. 2002) (holding that a material factual dispute concerning responsibility for a one-year delay in communicating about the need for medical
IV. Plaintiff‘s Hostile Work Environment Claim
Plaintiff‘s remaining claim alleges that HUD created a hostile working environment through its “unwillingness to recognize [Pantazes‘] disabilities, its refusal to fully accommodate him on a timely basis, its failure to engage in the interactive process, and its actions which hindered him from the performance of his duties.” (Compl. at 10.) He further argues that he has been abused at work, that his supervisors have not filled out paperwork in a timely manner so that he could receive medical treatment, that they have denied him training so that he could perform his job, and that as a consequence of this hostile environment, he was placed on an Opportunity to Improve Plan. (Id.)
Although this Circuit has not yet ruled that the Rehabilitation Act permits a hostile work environment claim, see Kuraner v. Mineta, No. 00-5416, 2001 WL 936369 (D.C. Cir. July 10, 2001), defendant does not contest this issue, and indeed, it cites ADA authority where such claims have been recognized. See, e.g., Fox v. General Motors Corp., 247 F.3d 169, 175-76 (4th Cir. 2001). (Def‘s Mot. at 25.) Accord Henry v. Guest Servs., Inc., 902 F. Supp. 245, 252 n.9 (D.D.C. 1995).
To make out a prima facie case of a hostile work environment claim based on a disability, plaintiff must show that (1) he is a member of a protected class, in this case a “qualified individual with a disability;” (2) he was subject to unwelcome harassment; (3) the harassment occurred because of his disability; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment, but took no action to prevent it. Lester, 290 F. Supp. 2d at 22. The Court has already found that a jury could conclude that plaintiff is a “qualified individual,” and defendant does not contest that plaintiff has satisfied each of the remaining prima facie elements, with the exception of prong four. Defendant argues only that plaintiff “has not suffered harm sufficiently severe or pervasive to alter a term, condition, or privilege of his employment.” (Def.‘s Mot. at 26.)
“[W]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim‘s employment and create an abusive working environment,” a hostile work environment claim may proceed. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (internal citations and quotation marks omitted). Defendant‘s arguments focus on whether placing plaintiff on an Opportunity to Improve Plan as a result of his poor performance evaluations constitutes an adverse action (Def.‘s Mot. at 26), but this focus is too narrow. In assessing whether a hostile work environment existed, courts look not to “ultimate employment decisions,” Taylor v. FDIC, 132 F.3d 753, 764 (D.C. Cir. 1997), but rather consider the frequency of the discriminatory conduct, its severity, whether it was physically threatening or merely offensive, and whether it reasonably interfered with the employee‘s performance. Faragher v. Boca Raton, 524 U.S. 775, 787-88 (1998).
Applying these principles here, a jury could conclude that the agency frustrated plaintiff‘s efforts to secure the reasonable accommodations he was entitled to by law and that would, according to the experts, facilitate his ability to perform his job. Moreover, plaintiff has offered evidence of alleged statements by various agency officials that suggest a discriminatory purpose, unreasonably lengthy delays by HUD in responding to his requests for accommodations, and an inadequately explained refusal to provide needed computer training. Given this evidence, one cannot conclude at this stage that a jury could not find these acts sufficiently severe, pervasive, and abusive to alter the conditions of Pantazes’ employment, thereby creating an abusive working environment. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998).
CONCLUSION
For the foregoing reasons, defendant‘s motions must be denied. An appropriate Order accompanies this Memorandum Opinion.
s/
ELLEN SEGAL HUVELLE
United States District Judge
Date: March 31, 2005