Plaintiff claims that as of July 1981, she was no longer able to perform the essential functions of her position "without reasonable accommodation," without endangering her health. She further alleges that as of July 1981, she was unable to perform the critical elements of her position by utilizing the accommodations offered to her by defendant. She argues that those accommodations were not reasonable because they did not adequately address the severity of her symptoms. Therefore, it is necessary to determine whether plaintiff was able to perform the essential functions of her position "with . . . reasonable accommodation." Plaintiff's otherwise "qualified handicapped individual" status thus hinges on the reasonableness of the accommodation offered to her. The reasonableness of the accommodation in turn depends on the extent to which her illness limited her ability to travel to defendant's offices in order to do her work.
Government agencies are required to "make reasonable accommodation to the known physical or mental limitations of a qualified handicapped . . . employee unless the agency can demonstrate that the accommodation would impose an undue hardship on the operation of the program." 29 C.F.R. § 1613.704(a). This indicates that an agency should accommodate a qualified handicapped individual's handicap based on what is known about the individual's handicapping condition and the individual's particular needs. Plaintiff claims that the type of accommodations offered her did not address the symptom of her illness which prevented her from accomplishing her duties, namely, fatigue occasioned by traveling to work. However, plaintiff failed to substantiate with medical evidence her alleged inability to commute, the alleged worsening of her illness, and her claim that the only reasonable accommodation in her case was permission to work at home.
Instead, plaintiff relied on cursory descriptions of her multiple sclerosis and doctors' recommendations that she be allowed to work at home. Defendant requested medical information from plaintiff for the purpose of determining the extent to which her handicap hampered her job performance and ability to commute to work. Plaintiff has provided no medical records in support of her claims, and indeed twice inhibited the collection of medical information about her condition. She withdrew her consent to have her physician provide medical records and a detailed description of her symptoms and their remedies to defendant. She also refused to undergo a fitness-for-duty physical examination requested by defendant. Thus, the Court has to conclude that plaintiff frustrated defendant's efforts to learn about her circumstances in order to attempt to better accommodate her, and that plaintiff could not substantiate her claims with medical evidence prior to her termination. Based on the absence of meaningful medical information provided to defendant, the Court concludes that defendant satisfied its duties to make reasonable accommodation to plaintiff's known physical limitations pursuant to 29 C.F.R. § 1613.704(a).
Because plaintiff did not show that she could perform the essential functions of her position without endangering her health, even with reasonable accommodation as provided by defendant, and because plaintiff did not show that her requested accommodation was the only reasonable accommodation which would enable her to perform her duties, plaintiff has not demonstrated that she was an "otherwise qualified handicapped individual" for the purposes of establishing a prima facie case of handicapped discrimination.
Because plaintiff cannot "make a showing sufficient to establish the existence of an element essential to [her] case," Celotex, 477 U.S. at 322, namely, that her condition rendered her unable to commute to work, the Court denies plaintiff summary judgment.
Similarly, in order for plaintiff to establish a prima facie case of handicapped discrimination with regard to her non-promotion, she must demonstrate that she was a handicapped individual qualified for the position in spite of her handicap, and that she was denied the position solely because of her handicap. Pushkin v. Regents of the Univ. of Colorado, 658 F.2d 1372 (10th Cir. 1981); Hurst v. U.S. Postal Service, 653 F. Supp. 259 (N.D. Ga. 1986); Guerriero v. Schultz, 557 F. Supp. 511 (D.D.C. 1983). As discussed above, plaintiff has not demonstrated that she was an otherwise qualified handicapped individual capable of performing her computer programming duties at GS level 11. Plaintiff has likewise failed to show that she was capable of satisfying the computer programming requirements at GS level 12. "If the individual is not otherwise qualified, he cannot be said to have been rejected solely because of his handicap." Pushkin, 658 F.2d at 1385. Plaintiff did not satisfy the experiential requirements of the GS level 12 position at any time before her dismissal in September 1983, nor has she even argued that she could have done so with reasonable accommodation.
Furthermore, plaintiff has not demonstrated that she was denied the position solely because of her handicap. HHS utilizes an objective evaluation system in accordance with Federal Personnel Regulations for assessing employees' job performance and potential for promotion. Plaintiff's performance evaluations indicate that at all points during her tenure at HHS, she failed to meet the standard criteria required for promotion to GS level 12. Therefore, plaintiff cannot establish either element of a prima facie case of handicapped discrimination with regard to her non-promotion.
Because plaintiff has failed to meet her burden of proof with regard to the above claims of discrimination, it is impossible for her to sustain the burden of proof necessary to show that she was terminated because of her handicap. To establish a prima facie case of discrimination with regard to her termination, plaintiff must again demonstrate that she was an "otherwise qualified handicapped individual," and that she was terminated because of her handicap. Reynolds v. Brock, 815 F.2d 571, 574 (9th Cir. 1987). Plaintiff has not fulfilled the former requirement, nor can she satisfy the latter. Plaintiff's performance level deteriorated to an unacceptable level during 1981. Her supervisors notified her of this deterioration, and of what she needed to accomplish in order to improve her performance rating. Plaintiff's supervisors also informed her of their intentions to terminate her employment should her performance fail to improve. HHS operated at all times in accordance with approved Federal Personnel Regulations providing for an employee's removal for unsatisfactory performance.
Plaintiff claims that her inability to perform her duties satisfactorily was due to HHS's refusal to accommodate her handicap. See note 1. Yet as discussed above, plaintiff has not met the burden of proof necessary to show that her impairment necessitated the refused accommodation. Because plaintiff has not substantiated her former claims of discrimination, she has not established a prima facie case of handicapped discrimination with regard to her employment termination. Moreover, when the administrative record is reviewed under the rational basis standard with regard to defendant agency's termination decision, it is apparent that defendant agency's decision was entirely rational.
An appropriate Order accompanies this opinion.
ORDER - August 22, 1990, Filed
Upon consideration of plaintiff's motion for summary judgment, defendant's cross-motion for summary judgment, the oppositions and replies thereto, and the entire record herein, it hereby is
ORDERED, that plaintiff's motion is denied. It hereby is further
ORDERED, that defendant's motion is granted and the cases are dismissed.