Vickers v. Veterans Administration, C81-85V.

• Decision Date: 31 August 1982
• Docket Number: No. C81-85V.,C81-85V.
• Citation: 549 F. Supp. 85
• Parties: Lanny L. VICKERS, Plaintiff, v. The VETERANS ADMINISTRATION, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

549 F. Supp. 85

Lanny L. VICKERS, Plaintiff, v.The VETERANS ADMINISTRATION, et al., Defendants.

No. C81-85V.

United States District Court, W.D. Washington.

August 31, 1982.

Eugene M. Moen, of Chemnick & Moen, Seattle, Wash., for plaintiff.

William H. Rubidge, Asst. U.S. Atty., Tacoma, Wash., for defendants.

MEMORANDUM DECISION

VOORHEES, District Judge.

From the credible evidence presented at the trial of this cause, the Court now renders the following decision:

1.The issues before this Court are these:

(a) Does the plaintiff have a cause of action against his superior, David Radke, Chief of Supply Service at the Veterans Administration Medical Center in Seattle, Washington?

(b) Does the plaintiff have a cause of action against the Veterans Administration under the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, for money damages or for equitable relief?

2.This is not an action to determine whether all government employees have a right to work in offices which are free from tobacco smoke.It is an action solely to determine whether this one plaintiff has the right to work in an environment wholly free from tobacco smoke.

3.Plaintiff is entitled to recover damages of and from David Radke only if plaintiff established by a preponderance of the evidence that David Radke, in his actions relative to plaintiff, violated a clearly-established statutory or constitutional right of plaintiff.Harlow v. Fitzgerald,___ U.S. ___, 102 S.Ct. 2727, 73 L.Ed.2d 396(1982).

4.From the evidence in this cause the Court is unable to find that David Radke did in fact at any time violate any clearly-established right of plaintiff.The complaint of plaintiff against David Radke must in consequence be dismissed with prejudice.

5.The question then remains as to whether plaintiff is entitled to any kind of relief against the Veterans Administration as a handicapped person under the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794.The Court ruled prior to trial that § 794 does permit a private right of action for damages or for equitable relief.

6.The Court finds that plaintiff is a handicapped person within the meaning of the term "handicapped person" as defined in 29 U.S.C. § 706(7)(B).That subsection provides that any person is a "handicapped" person within the contemplation of 29 U.S.C. § 794 if that person has a physical impairment which substantially limits one or more of his or her major life activities.It appears from the evidence in this cause that plaintiff is unusually sensitive to tobacco smoke and that this hypersensitivity does in fact limit at least one of his major life activities, that is, his capacity to work in an environment which is not completely smoke free.

7.The finding by the Court that plaintiff is a handicapped person within the meaning of the Act does not, however, dispose of this matter.In order for the Court to find that plaintiff is entitled to recover money damages from the Veterans Administration or that plaintiff is entitled to some kind of equitable relief, the Court must find that the Veterans Administration discriminated against plaintiff by reason of his handicap.

8. 29 U.S.C. § 794 provides as follows:

"No otherwise qualified handicapped individual in the United States, as defined in Section 706(7) of this title, shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination ... under any program or activity conducted by any Executive agency or by the United States Postal Service."

9.In his trial brief plaintiff asserts that because of plaintiff's complaints and this lawsuit, Mr. Radke has indicated resentment and anger toward plaintiff by means of non-verbal expressions of animosity towards plaintiff, by statements made to other employees about plaintiff and the smoking issue, and by efforts to limit work assignments to plaintiff and to prevent his promotion.The Court found no credible evidence in the record to sustain any one of these contentions.

10.The Court finds further no evidence in the record that plaintiff has in any way been discriminated against in terms of work assignments, pay or promotions by reason of his hypersensitivity to tobacco smoke, by reason of his complaining to his superiors about the presence of tobacco smoke in his work environment, or by the commencement of this action.Plaintiff has regularly received high performance ratings for his work and has been awarded at least three incentive awards, which have resulted in higher pay for him.

11.The Court is unable to find in the words of § 794 that plaintiff has been, solely by reason of his handicap excluded from the participation in or denied the benefits of any program or activity conducted by the Veterans Administration.

12.Plaintiff asserts, however, that he has been discriminated against because of the failure of the Veterans Administration "to make reasonable accommodations to his physical handicap by providing a work environment that is free of tobacco smoke."

13.Plaintiff has failed to cite any authority from the decided cases to the effect that the Veterans Administration was under a duty to make "reasonable accommodations" to plaintiff's sensitivity to tobacco smoke.Assuming, but not deciding, that the Veterans Administration was under such a duty, the Court finds from the evidence that the Veterans Administration did make reasonable efforts to accommodate to plaintiff's handicap.

14.Plaintiff is employed in the Purchasing and Contracts Section of the Supply Service Department at the Veterans Administration Medical Center.The employees in that section have their desks in Room 105-C in Building 15.This building is a temporary one.It is contemplated that within two years all of the Supply Service employees will be moved out of that building and into new quarters in a building now under construction.Ten employees have their desks in Room105-C.Some of them smoke; some do not.Room 105-C is relatively quite crowded as there are more desks and more employees in that room than the available space can comfortably accommodate.In that room are seven windows, which can be opened and closed, and one double door.This double door may be opened or "cracked" to admit fresh air.Two rather large circulating fans are located in this room.

15.Immediately adjacent to Room 105-C is Room 105-D in which are located those employees who are in the Personal Property Management Section of the Supply Service Department.There are eight employees in this section.Some of these employees smoke; some do not.

16.In February, 1979 the Deputy Administrator of the Veterans Administration at the direction of the Administrator promulgated a nationwide policy relative to smoking at the facilities of the Veterans Administration.One of the provisions of that policy was as follows:

"In establishing and continuing a smoking policy in work areas under their jurisdiction, supervisors should strive to maintain an equitable balance between the rights of smokers and nonsmokers."

17.In February, 1980 the Director of the Veterans Administration Medical Center in Seattle promulgated a policy relative to smoking in the facility.That policy provided that smoking was to be permitted in office areas.By virtue of that promulgated policy employees were permitted to smoke in Rooms 105-Cand 105-D.

18.From time to time plaintiff has made known to his superiors his sensitivity to tobacco smoke and has...