Lamont Bunn, Petitioner,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 20, 2001
030a0040 (E.E.O.C. Dec. 20, 2001)

030a0040

12-20-2001

Lamont Bunn, Petitioner, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Lamont Bunn v. United States Postal Service

03A00040

12-20-01

.

Lamont Bunn,

Petitioner,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Petition No. 03A00040

MSPB No. DC-0752990069-I-1

DECISION

On November 18, 1999, Lamont Bunn (hereinafter referred to as petitioner)

timely filed a petition with the Equal Employment Opportunity Commission

(the Commission) for review of the Final Order of the Merit Systems

Protection Board (MSPB or Board) dated October 20, 1999, concerning

an allegation of discrimination in violation of the Rehabilitation

Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The petition is

governed by the provisions of the Civil Service Reform Act of 1978 and

EEOC Regulations, 29 C.F.R. �1614.303 et seq. The MSPB found that the

United States Postal Service (hereinafter referred to as the agency)

did not engage in discrimination as alleged by petitioner. For the

reasons that follow, the Commission concurs with the Board's decision.

The issue presented is whether the MSPB's determination that petitioner

failed to prove that the agency discriminated against him based on

disability (seizure disorder) when he was removed from his position

effective November 3, 1998, constitutes a correct interpretation of

the applicable laws, rules, regulations, and policy directives and is

supported by the record as a whole.

Petitioner filed an appeal with the MSPB challenging his removal for

falsification of medical records, alleging, in part, that the agency

discriminated against him based on his disability (seizure disorder).

Following a hearing, the MSPB Administrative Judge (AJ) issued an Initial

Decision on April 22, 1999, sustaining the agency's removal action

and finding that the agency did not discriminate against him based on

his disability. Petitioner sought review by the Board, which denied

his petition.

Petitioner worked as a custodian, having received a career appointment

with the agency in June 1996. On his medical assessment form, dated June

28, 1996, he indicated that he was not subject to "epilepsy, seizures, or

blackouts" and that he did not take prescription medication. Previously,

however, in September 1994 and October 1995, petitioner had indicated

that he had "epilepsy, seizures, or blackouts" and acknowledged that

he took prescription medication for his disorder. He had received a

rating of "minimum risk" of injury in 1994 and was hired for a casual

position, but in 1995, he received a rating of "moderate risk"of injury

and was not hired. Upon discovery of this inconsistency, the agency

proposed his removal by letter dated August 10, 1998, charging that he

knowingly falsified his medical assessment form, providing incorrect

information with intent to defraud the agency, and violation of the

agency's Standards of Conduct. The agency contended that petitioner

knew he would lose his appointment and purposely answered that he had

no disorders or took prescription medicines.

Petitioner testified that he was not feeling well on June 28, 1996, and

did not recall completing the form. He surmised that he was confused at

the time as a result of his disorder, because shortly after completing

the form, he had a seizure episode and was hospitalized on July 1, 1996.

Documents from his doctor contained in the record show that petitioner

suffers from epilepsy/partial complex seizure that began in about 1992

and that he could perform all work activities but should refrain from

driving and operating heavy machinery. In letters dated October 1997,

and August 1998, his physician stated that a patient with such a seizure

disorder develops "prodromal signs" about two days prior to a seizure,

which is evidenced by �difficulty sleeping, restlessness, and agitation�

and that after a seizure, a patient is often confused and may not recall

his actions.

The AJ found that petitioner failed to demonstrate that his disorder

affected his ability to provide correct information on the medical

assessment form on June 28, 1996. For this reason and because petitioner

had reason to know that supplying the correct information could adversely

affect his appointment, the AJ concluded that petitioner knowingly

provided incorrect information with the intent to defraud the agency.

With regard to his claim of disability discrimination, the AJ found

that while petitioner had a seizure disorder, he was not a person with

a disability, since the prohibition from operating heavy machinery and

driving did not substantially limit a major life activity. Further,

the AJ held that even if petitioner had met his burden, he failed to

demonstrate a nexus, or connection, between his seizure disorder and

his falsification of the form.

The Commission must determine whether the decision of the MSPB with

respect to the allegation of discrimination constitutes a correct

interpretation of any applicable laws, rules, regulations, and policy

directives and is supported by the evidence in the record as a whole.

29 C.F.R. � 1614.305(c). After considering petitioner's contentions and

thoroughly reviewing the record, the Commission concurs with the MSPB,

finding that the agency did not discriminate against petitioner.

Petitioner has alleged discrimination based on his disability.

In analyzing a disparate treatment claim under the Rehabilitation Act,<1>

where the agency denies that its decisions were motivated by petitioner's

disability, and there is no direct evidence of discrimination, we apply

the burden-shifting method of proof set forth in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973).<2> See Heyman v. Queens Village

Committee for Mental Health for Jamaica Community Adolescent Program,

198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34

(D.C. Cir. 1999). Under this analysis, in order to establish a prima

facie case, petitioner must initially demonstrate that: (1) he is an

"individual with a disability;� (2) he is "qualified" for the position

held or desired; (3) he was subjected to an adverse employment action;

and (4) the circumstances surrounding the adverse action give rise to an

inference of discrimination. Lawson v. CSX Transportation, Inc., 245 F.3d

916 (7th Cir. 2001). The burden of production then shifts to the agency

to articulate a legitimate, non-discriminatory reason for the adverse

employment action. In order to satisfy his burden of proof, petitioner

must then demonstrate by a preponderance of the evidence that the agency's

proffered reason is a pretext for disability discrimination. Id.

For purposes of analysis of his claim, we will assume without deciding

that petitioner is a person with a disability and has established a prima

facie case. Turning to the second step in the McDonnell Douglas analysis,

we find that the agency articulated a legitimate, nondiscriminatory

reason for petitioner's removal from his position, i.e., petitioner

falsified his medical form dated June 28, 1996. Petitioner did not

deny that he gave inaccurate answers and only stated that he could not

remember completing the form or that he was confused at the time because

of a seizure that occurred two days later.

The burden now returns to petitioner to demonstrate that the reason

articulated by the agency is not true and that the removal action was

taken because of discriminatory factors. See St. Mary's Honor Center

v. Hicks, 509 U.S. 502 (1993). To explain that he did not remember

filling out his medical assessment form and may have been confused at the

time, petitioner submitted letters from his physician that describe the

general symptoms of his disorder. First, we note that the physician's

letters were dated long after he completed the form, and the doctor did

not speak specifically to petitioner's condition when he filled out the

form in June 1996. Also, the doctor did not state that a patient is

confused or forgetful prior to a seizure.

Further, to the extent that petitioner may contend that the agency should

excuse his actions because of his disability, an agency's obligation

to provide reasonable accommodation to an employee is limited to the

known limitations of a qualified individual with a disability. See,

generally, EEOC's Enforcement Guidance on Reasonable Accommodation and

Undue Hardship under the Americans with Disabilities Act, No 915.002

(March 1, 1999). Here, petitioner had not requested a reasonable

accommodation, and the agency was not aware of his disability. Moreover,

the Commission's Compliance Manual states that an agency "does not

have to excuse . . . misconduct, even if the misconduct results from

an impairment that rises to the level of a disability, if it does not

excuse similar misconduct from its other employees." EEOC Compliance

Manual, Definition of the Term "Disability," � 902.2, n.11 (1995);

see also Ayers v. USPS, EEOC Appeal No. 01975550 (February 25, 2000).

Here, the agency asserted that petitioner's conduct violated its conduct

standards and that employees were aware that such behavior would result

in disciplinary action and removal, and petitioner did not show that other

employees who committed the same misconduct were not similarly removed.

For the above reasons, we find that petitioner failed to prove by a

preponderance of the evidence that the agency's reason was not true or

that discriminatory animus motivated the agency's action. Therefore,

after a careful review of the record, we find that the agency did not

discriminate against petitioner on the basis of disability.

CONCLUSION

Based upon a thorough review of the record and for the foregoing reasons,

it is the decision of the Commission to CONCUR with the final decision

of the MSPB finding no discrimination. The Commission finds that the

MSPB's decision constitutes a correct interpretation of the laws, rules,

regulations, and policies governing this matter and is supported by the

evidence in the record as a whole.

STATEMENT OF PETITIONER'S RIGHTS

PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)

This decision of the Commission is final, and there is no further right of

administrative appeal from the Commission's decision. You have the right

to file a civil action in an appropriate United States District Court,

based on the decision of the Merit Systems Protection Board, within

thirty (30) calendar days of the date that you receive this decision.

If you file a civil action, you must name as the defendant in the

complaint the person who is the official agency head or department head,

identifying that person by his or her full name and official title.

Failure to do so may result in the dismissal of your case in court.

"Agency" or "department" means the national organization, and not the

local office, facility or department in which you work.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

_______________________

Carlton M. Hadden, Director

Office of Federal Operations

___12-20-01____________________

Date

1The Rehabilitation Act was amended in 1992 to apply the standards in

the Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment.

2A complainant must first establish a prima facie case of discrimination

by presenting facts that, if unexplained, reasonably give rise to an

inference of discrimination, i.e., that a prohibited consideration was

a factor in the adverse employment action. Next, the agency offers

rebuttal to complainant's inference of discrimination by articulating a

legitimate, nondiscriminatory reason for its action. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the

agency has met its burden, the complainant bears the ultimate burden

to persuade the fact finder by a preponderance of the evidence that the

reasons offered by the agency were not the true reasons for its actions

but rather were a pretext for discrimination. St. Mary's Honor Center

v. Hicks, 509 U.S. 502 (1993).