Harmer v. Virginia Elec. and Power Co.
| Decision Date | 20 September 1993 |
| Docket Number | No. 93-CV-168.,93-CV-168. |
| Citation | 831 F. Supp. 1300 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | Robert E. HARMER, Plaintiff, v. VIRGINIA ELECTRIC AND POWER COMPANY, Defendant. |
COPYRIGHT MATERIAL OMITTED
Yvonne Steenstra Wellford, John Sykes Barr, Maloney, Yeatts & Barr, P.C., Richmond, VA, for plaintiff.
Donald Lester Creach, Hill B. Wellford, Jr., Hunton & Williams, Richmond, VA, for defendant.
This matter is before the Court on defendant Virginia Electric and Power Company's ("Virginia Power's") motion for summary judgment, made pursuant to Fed.R.Civ.Proc. 56(b). For the reasons set forth below, the Court grants the defendant's motion.
I. Facts
The plaintiff, Robert E. Harmer, is suing defendant Virginia Power for discriminating against him because of his disability, in violation of the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq. ("ADA"). The suit arises out of Harmer's requests over several years that Virginia Power create a smoke-free work environment as an accommodation to Harmer's pulmonary disability. Harmer alleges that Virginia Power failed to provide reasonable accommodation for his condition as required by the ADA and that after he requested a ban on smoking Virginia Power retaliated against him by reducing his purchasing authority and by not giving him a promotion. Harmer seeks an injunction against further discrimination by Virginia Power.1 In addition, Harmer seeks an award of past and future wages and benefits that he would have earned absent any discrimination, compensatory and punitive damages, attorneys fees and costs.
Harmer began working for Virginia Power in 1981. Since 1986, he has worked as a buyer in the purchasing department at Virginia Power's corporate headquarters located at One James River Plaza in Richmond, Virginia. He works exclusively on the twelfth floor of One James River Plaza in an unenclosed cubicle. His duties currently include receiving requisitions, competitive bidding, evaluating bids and administering purchase orders.
Harmer has bronchial asthma, a severe reactive airway disease for which he is steroid dependent. (Compl. ¶ 3.) His doctor, Michael Z. Blumberg, M.D., asserts that Harmer's disability "substantially limits his ability to care for himself, his ability to breathe, his ability to walk and his life expectancy." (Blumberg Aff. ¶ 2.) The doctor also states that tobacco smoke in Harmer's work environment was a major contributor and aggravant to his health problem. (Id. at ¶ 3.)2
Accordingly, in September 1989, Harmer and some other employees on the twelfth floor submitted a petition asking that the twelfth floor be declared a non-smoking area. In response, Michael Lindsey, the then Manager of Purchasing for Virginia Power, asked that a study be conducted of the air quality on the twelfth floor. The results of the study, which were issued in January 1990, indicated that carbon dioxide concentrations were generally below the recommended maximum.3 On the other hand, W.M. Sorey, an industrial hygienist for Virginia Power and the author of the report, noted that the overriding complaint of twelfth-floor employees was of cigarette smoke. (Id. Ex. A) He indicated, however, that the company had no method of quantifying the amount of smoke in the air and no standards to compare amounts to. (Id.) Therefore, he concluded that smoking policy had to be a management decision, but advised that 4 (Id.)
Lindsey also reviewed Virginia Power's smoking policies and reported in a memorandum to purchasing employees in March 1990 that the company had provided fans, smokeless ashtrays and air purifiers and had moved employees to increase the space between smokers and nonsmokers. (Harmer Dep. Ex. 23.) In addition, Lindsey announced new rules prohibiting smoking in the rest rooms, conference rooms and hallways on the twelfth floor and limiting smoking to the smoker's cubicle. (Id.) He announced in the memorandum the creation of a twelfth-floor Smoking Policy Committee to study the situation and to make recommendations to management for changes in the floor's smoking policy. (Id.)
In March 1990, Harmer discussed with Virginia Power the possibility of transferring to Virginia Power's Surry Nuclear Power Station, where smoking was prohibited in the purchasing and materials area. Virginia Power alleges that Harmer was offered the job transfer and refused it for personal reasons, though he admitted that the transfer would benefit his career progression, personal life and health. (See Lindsey Aff. ¶ 9 & Ex. C.) Harmer states that the possibility of transfer was not raised again after Virginia Power refused to compensate him for the substantial expenses he would incur in relocating.5
In August 1990, in order to comply with the Virginia Indoor Clean Air Act, Virginia Power prohibited smoking in elevators, cashier and service lines, cafeterias (except in designated smoking areas), auditoriums, stairways and hallways. (See Harmer Dep. Ex. 24.) Individual managers were authorized to adopt additional smoking restrictions as needed. (Id.)
In December 1990, the twelfth-floor Smoking Policy Committee released its recommendations to management concerning a proposed smoking policy. The committee recommended strict enforcement of the existing smoking policy, the provision of smokeless ashtrays and/or air filtration devices for use by smokers and placement of air filtration devices and high oxygen output plants at strategic locations on the floor. (Lindsey Aff. Ex. D.) In response to these recommendations, smokeless ashtrays were made available, but not mandatory. (Id.) In addition, plants were relocated and added to the floor. (See Harmer Dep. Ex. 26.)
The plaintiff, unsatisfied with these measures, requested in writing in July 1992 that Virginia Power declare the entire building smoke free. (Harmer Dep. Ex. 27.) Virginia Power formed a committee to review the request, which resulted in a decision to move the two smokers seated closest to Harmer. (See Harmer Dep. Ex. 28.) In addition, a company doctor on the committee reviewed medical information from Harmer's doctor and concluded that it was inconclusive that tobacco smoke was a major contributor to Harmer's health problems.6 (Id.)
In June 1993 Virginia Power announced that, effective August 1, 1993, smoking would be prohibited in all its facilities, except in specially constructed smoking rooms. Robert E. Rigsby, vice president of human resources for Virginia Power, asserts that the company considered this change in its policy when it learned in late 1992 that the Environmental Protection Agency would be issuing a report concluding that tobacco smoke in the work place is hazardous to nonsmokers.7 (Rigsby Aff. at ¶ 2.) Virginia Power asserts that it had to weigh several considerations before the nonsmoking policy could be adopted, including the effects on employee morale, the potential loss of productivity from employees who smoke and the additional costs of the change.8
Harmer also alleges that Virginia Power retaliated against him because of his efforts to enforce his rights under the ADA, in violation of 42 U.S.C. § 12203, by reducing his purchasing authority and by filling a vacant position as project expediter — nuclear with a less senior, less qualified and less experienced employee. Harmer states that before October 1992 his purchasing authority was $50,000, which he assumed was because he was a more experienced buyer. In October 1992, however, on the same day that he received the response to his request that the building be declared smoke free, Harmer's purchasing authority was reduced to $25,000. Paul H. Dodson, Virginia Power's purchasing manager, states that an administrative error, which was discovered in a routine check of the purchasing authority list, had caused the increase in Harmer's authority. Once the error was discovered, Dodson states, Harmer was informed that his purchasing authority was $25,000, consistent with that of all other buyers in the company.
Harmer disputes this rationale because, he states, the fact that many people are involved in the decision to set limits on purchasing authority gave Virginia Power sufficient opportunity to catch mistakes. Harmer also points to other incidents that he believes support his retaliation claim. First, Virginia Power recently disciplined him for the first time by giving him an oral warning for engaging in a twenty-minute conversation with two other employees during work hours. Second, Harmer's annual rating on job performance declined from "A1 Hi" (high average) in 1991, before he requested accommodation for his disability, to "A1 Lo" (low average) in 1992, after he had made the request.9 Third, Lowell Carrington, the director of the Virginia Power purchasing group in which Harmer works, stated that Virginia Power currently does not consider Harmer promotable because of comments Harmer made, which reflect that he is a racist and has problems with females. Carrington admitted, however, that he had no first-hand knowledge about the alleged comments and that he had made no attempt to verify whether Harmer had in fact made them.
Harmer also claims that he should have a chance to determine by deposition whether Donald Smith, the employee awarded the nuclear project expediter position, was more qualified. On the other hand, Kerry Owens, the director purchasing — nuclear for Virginia Power, alleges that Smith was more qualified because of his current knowledge of the highly regulated area of nuclear purchasing. He states that Smith...
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