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).