Kelvin Barefield v. United States Postal Service 03A00104 August 31, 2000 . Kelvin Barefield, Petitioner, v. William J. Henderson, Postmaster General, United States Postal Service, Agency. Petition No. 03A00104 MSPB No. AT-0572-99-0565-I-1 DECISION INTRODUCTION On June 14, 2000, Kelvin Barefield (petitioner) timely<1> filed a petition with the Equal Employment Opportunity Commission (EEOC or Commission) for review of an Order of the Merit Systems Protection Board (MSPB) dated May 2, 2000, concerning an allegation of discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. 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 (agency) did not engage in discrimination as alleged by petitioner. For the reasons which follow, the Commission CONCURS with the decision of the MSPB. ISSUE PRESENTED The issue presented is whether the MSPB's determination that petitioner failed to prove that the agency discriminated against him based on mental disability (bipolar disorder) when he was removed from employment constitutes a correct interpretation of the applicable laws, rules, regulations, and policy directives, and is supported by the record as a whole. BACKGROUND On May 21, 1999, petitioner filed an appeal with the MSPB challenging his removal on charges of engaging in unacceptable conduct and exhibiting erratic/violent behavior. A hearing was held August 31, 1999. On September 13, 1999, the MSPB administrative judge (AJ) issued an Initial Decision (ID) sustaining the removal and finding that the agency did not discriminate against petitioner. Petitioner filed a petition for review by the full Board, which was denied. The charges against petitioner contained numerous specifications related to conduct which included auto theft and assault on a police officer. Petitioner argued, in relevant part, that his removal resulted from the agency's failure to accommodate his disability. The MSPB AJ found that petitioner took medication to control his condition, and had adduced no evidence to show that his condition was not under control. The MSPB AJ further found that, in any event, petitioner made no request for accommodation until after his removal had been effected, at which time he requested to be returned to duty under a “last chance” agreement. Accordingly, the MSPB AJ found that the agency had not discriminated against petitioner as alleged. The decision of the MSPB AJ was upheld by and Order of the Board dated May 2, 2000. The instant petition followed. Neither petitioner nor the agency has submitted a brief in support of or opposition to the petition. ANALYSIS AND FINDINGS The Commission must determine whether, with regard to petitioner's allegation of discrimination, the decision of the MSPB constitutes a correct interpretation of the applicable laws, rules, regulations, and policy directives, and is supported by the record as a whole. 29 C.F.R. § 1614.305(c). The Commission finds that the MSPB's decision is supported by the record and, for the reasons stated below, CONCURS with its findings. In order to establish a prima facie case of disability discrimination, petitioner must prove, by a preponderance of the evidence, that he was treated differently than individuals not within his protected group, or that the agency failed to make a needed reasonable accommodation, resulting in adverse treatment of petitioner. See Sisson v. Helms, 751 F.2d 991, 992-93 (9th Cir.), cert. denied, 474 U.S. 846 (1985). Assuming for the sake of argument that petitioner has established that he is entitled to coverage under the Rehabilitation Act, see 29 C.F.R. § 1630.2(g)-(m)<2>, the Commission finds that he has not established that the agency failed to make a needed reasonable accommodation. The record reflects that petitioner did not request any accommodation until after his removal had been effected, at which time he requested that he be returned to work under a “last chance” agreement, in effect excusing his misconduct on the basis of his disability. Petitioner, however, has not shown a nexus, or causal connection, between his bipolar disorder and the misconduct which led to his removal. See, e.g., Ayers v. United States Postal Service, EEOC Appeal No. 01975550 (February 25, 2000). Further, the Commission has made clear that an employer may discipline an employee with a disability for engaging in misconduct if it would impose the same discipline on an employee without a disability. Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, EEOC Notice No. N-915.002 (March 25, 1997), p.29. Accordingly, the MSPB AJ properly concluded that the agency did not discriminate against petitioner on the basis of mental disability with regard to his removal. CONCLUSION Based upon a thorough review of the record, and for the foregoing reasons, it is the decision of the Equal Employment Opportunity 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 policy directives governing this matter, and is supported by the record as a whole. STATEMENT OF PETITIONER'S RIGHTS PETITIONERS' RIGHT TO FILE A CIVIL ACTION (W0400) 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: ______________________________ Frances M. Hart Executive Officer Executive Secretariat August 31, 2000 __________________ Date 1The record does not contain adequate evidence, such as a certified-mail return-receipt, from which to ascertain the date on which petitioner received the Order of the MSPB. Petitioner states that he received the Order on May 2, 2000; however, that is the date on which the Order was issued, and the record reflects that the Order was mailed on that date. Given this uncertainty, the Commission exercises its discretion to deem the petition timely filed. 2The 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. Since that time, the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints of disability discrimination. These regulations can be found on EEOC's website at www.eeoc.gov.