John M. Scorcia,)
  Petitioner,)
)
  v.)  Petition No. 03980115
)  MSPB   No. NY-0752-97-0315-I-1
William J. Henderson,)
Postmaster General,)
United States Postal Service,)
  Agency.)
_______________________________________)


DECISION

INTRODUCTION

On July 21, 1998, John M. Scorcia (petitioner) timely 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
June 22, 1998, concerning an allegation of discrimination in violation
of the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. §621 et seq., and the Rehabilitation Act of 1973, 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 disability (depression, anxiety reaction, personality disorder,
post-traumatic stress disorder, claustrophobia), age (56), and reprisal
(prior EEO activity) 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

Petitioner timely filed an appeal with the MSPB challenging his removal
from employment on charges (1) that he was absent without leave (AWOL)
from January 7 through 31, 1997; (1) that he misused an agency calling
card for his personal convenience; and (3) that he failed to protect
agency property.  A hearing was held June 11, 1997.  On October 2,
1997, the MSPB administrative judge (AJ) issued an Initial Decision (ID)
sustaining the removal and finding that the agency did not discriminate
against petitioner.<1>  Petitioner filed a petition for review by the
full Board.  In its June 20, 1998, decision, the Board clarified the
circumstances of the AWOL charge and upheld the removal.

Petitioner was employed as a Purchasing Specialist, EAS-20, at the
agency's Hoboken, New Jersey, Purchasing Service Center from July 8,
1995, through March 6, 1996.  According to petitioner, on March 6, 1996,
his supervisor assaulted him in the workplace.  Petitioner was absent
from March 6 through June 7, 1996, and was detailed to a position in
Washington, D.C., from June 10 through December 13, 1996.  Petitioner had
been ordered to return to duty in Hoboken on December 16, 1996, but
on December 11, 1996, requested what he characterized as “reasonable
accommodation” of an assignment anywhere but Hoboken, stating that he
feared for his life should he return there.  Petitioner's request was
denied, and although he was granted sick leave for December 16, 1996,
he was placed in AWOL status commencing December 17, 1996.  On January
6, 1997, petitioner received a Letter of Warning (LOW) for failure to
report for duty.  In response, he again requested the accommodation of
an assignment anywhere but Hoboken.  Petitioner was removed form duty
effective March 18, 1997, on the charges set forth above.

The MSPB AJ discredited petitioner's testimony, finding inconsistencies
in his testimony which made it, if not false, at least unreliable.
On the charge of AWOL, the MSPB AJ found that petitioner's supervisor
did not assault him.  The MSPB AJ further found that petitioner's
working conditions were not such that a reasonable person would have
felt compelled to absent himself from the Hoboken facility, and that
the agency's refusal to reassign petitioner, grant him leave, or extend
his detail was proper.  On the second charge, the MSPB AJ found that
petitioner had used an agency calling card to make personal telephone
calls despite the clear warning printed right on the card that it was
“for official government use only.”  On the third charge, the MSPB AJ
found that petitioner had returned an agency-owned laptop computer with
less memory and a different hard-drive than it had when it was issued
to him, and that when petitioner finally returned the additional memory
chips and the original hard-drive, all of the agency-owned software
was missing from the hard-drive.  The MSPB AJ found that petitioner had
not established a prima facie case of age or reprisal discrimination,
but that even if he had, the agency had articulated a legitimate,
non-discriminatory explanation for petitioner's removal; further, that
there was no evidence that the agency's explanation was merely a pretext
for discrimination.  Subsequently, the full Board modified the MSPB AJ's
findings to clarify that, although petitioner produced a pay-stub showing
that he was in leave-without-pay (LWOP) status during the period for which
he was charged AWOL, the agency used the same pay code for AWOL and LWOP,
and petitioner had been informed that he was considered to be AWOL.

In his petition, petitioner mainly argues that the agency discriminated
against him by failing to reasonably accommodate his disability with
regard to his request to be assigned somewhere other than the Hoboken
facility.  Petitioner further argues that he was on approved leave during
the period that he was charged AWOL.  Petitioner also argues that his
supervisor was motivated by retaliatory animus, and that since 1993 the
agency has been engaging in attempts to coerce him into retiring.<2>

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.

As a preliminary matter, the Commission notes that it has previously
held that, as a matter of law, it is error for an MSPB AJ to
reject a petitioner's claims of discrimination prior to the hearing.
Clenney v. Dept. of the Air Force, EEOC Petition No. 03920116 (May 27,
1993).  The MSPB AJ's rejection of a discrimination claim prior to the
hearing effectively restricts the development of the record, thereby
precluding the Commission from reviewing the petitioner's claims as
it is required to do under its statutory mandate.  Id.; Stephens-Jones
v. U.S. Postal Service, EEOC Petition No. 03970089 (November 20, 1997).
The MSPB has recognized that the Commission will review a petitioner's
claims of discrimination even where the MSPB has found such claims to
be frivolous.  However, in the instant case the Commission finds that
it is not necessary to remand this matter for further investigation
with respect to petitioner's allegation of disability discrimination.
Although the MSPB AJ struck the affirmative defense of disability
discrimination prior to the hearing, a review of the record, particularly
the hearing transcript, reveals that petitioner had ample opportunity to
submit evidence bearing on his mental condition and to elicit testimony
from Dr. L, his psychotherapist.

In any proceeding, either administrative or judicial, involving an
allegation of discrimination, it is the burden of the complainant,
petitioner herein, to initially establish that there is some substance
to his or her allegation.  In order to accomplish this burden the
complainant must establish a prima facie case of discrimination.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); see
also Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).
This means that the complainant must present a body of evidence such
that, were it not rebutted, the trier of fact could conclude that
unlawful discrimination did occur.  The burden then shifts to the
agency to articulate a legitimate, non-discriminatory explanation for
its action.  Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981).  In this regard, the agency need only produce evidence
sufficient "to allow the trier of fact rationally to conclude" that the
agency's action was not based on unlawful discrimination.  Id. at 257.
Once the agency has articulated such a reason, the question becomes
whether the proffered explanation was the true reason for the agency's
action, or merely a pretext for discrimination.  St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 511 (1993).  Although the burden of production,
in other words, "going forward," may shift, the burden of persuasion, by
a preponderance of the evidence, remains at all times on the complainant.
Burdine, 450 U.S. at 256.  This analysis, developed in the context of
Title VII proceedings, also applies to cases arising under the ADEA.
Jackson v. Sears, Roebuck & Co., 648 F.2d 225 (5th Cir. 1981).

Courts have adopted and applied the Title VII burdens of proof, see supra,
to disability discrimination.  See Norcross v. Sneed, 755 F.2d 113 (8th
Cir. 1985); Prewitt v. U.S. Postal Service, 662 F.2d 292 (5th Cir. 1981).
In order to establish a prima facie case of disability discrimination,
petitioner must prove, by a preponderance of the evidence, that she 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).

As a threshold matter, petitioner must establish that he is a "qualified
individual with disability" within the meaning of the Rehabilitation Act.
The Act's implementing regulation defines "individual with disability"
as a person who has, has a record of, or is regarded as having a physical
or mental impairment which substantially limits one or more of that
person's major life activities:  self-care, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
29 C.F.R. §§1614.203(a)(1),(3).  The regulation defines a "qualified
individual with disability" as a person "who, with or without reasonable
accommodation, can perform the essential functions of the position in
question ...."  29 C.F.R. §1614.203(a)(6).

In January 1996, Dr. L informed the agency that it would be a
“psychological hardship” for petitioner to work at the Hoboken facility.
In April of 1996, however, Dr. T, a psychiatrist to whom the agency
referred petitioner, found that petitioner gave no evidence of any
psychiatric illness preventing him from doing his work.  In a January
29, 1997, letter to the agency, Dr. L diagnosed petitioner as having
Dysthymic Disorder, Generalized Anxiety Disorder, Post-Traumatic Stress
Syndrome, and Personality Disorder (not otherwise specified).  Dr. L
stated that petitioner was experiencing “severe stress symptoms” at the
prospect of returning to Hoboken.  Dr. L stated that she had no doubt that
petitioner would be unable to function normally at the Hoboken facility,
but that he could work at some other facility within reasonable commuting
distance of his home.  In her testimony at the hearing, Dr. L stated
that petitioner had become increasingly avoidant, did not want to go
out and do normal things, became irritable and angry over minor things,
and had difficulty concentrating.  Dr. L also noted that petitioner had
a history of claustrophobia.

Based on the foregoing, the Commission finds that petitioner is not an
“individual with disability” within the meaning of the Rehabilitation Act.
None of the evidence presented points to a substantial impairment of
any major life activity.  Based on the reports and testimony of Dr. L,
the only impairment resulting from petitioner's myriad conditions
is that he is unable to work for the agency at the Hoboken facility.
This restriction does not rise to the level of a “substantial impairment”
of petitioner's ability to work. See Groshans v. Dept of the Navy,
EEOC Petition No. 03950109 (February 1, 1996) (inability to work in
a particular location not substantial impairment of ability to work);
EEOC Notice No. 915.002 (March 25, 1997) Enforcement Guidance on the
Americans with Disabilities Act and Psychiatric Disabilities (“substantial
impairment” means “significantly restricted as compared to the average
person in the general population”).  Accordingly, the Commission finds
that petitioner is not an “individual with disability” within the meaning
of the Rehabilitation Act, and therefore is not entitled to the Act's
protection.

The Commission now turns to the matter of petitioner's removal.
Assuming for the sake of argument that a prima facie case of age and
reprisal discrimination has been established, the Commission finds that
the agency has articulated a legitimate, non-discriminatory explanation
for petitioner's removal.<3>  Petitioner was charged with three offenses:
(1)  AWOL, (2) misuse of an agency  calling card, and (3) failure to
protect agency property.  The agency explained that petitioner failed
to report for duty, despite receiving repeated warnings and a LOW; that
petitioner used an agency calling card to make personal long-distance
telephone calls, in violation of known agency policy and procedures;
and that petitioner returned an agency-owned laptop computer with a
different hard-drive and less memory than when he received it, and
eventually returned the original hard-drive with the agency-provided
software deleted.  These explanations are sufficient to meet the agency's
burden.  See Burdine, 450 U.S. at 257.

The burden now shifts to petitioner to establish that the agency's
explanations are merely pretexts for unlawful discrimination.  Hicks,
509 U.S. at 511; Burdine, 450 U.S. at 256.  With regard to the first
charge, petitioner argues that he had requested assignment to another
facility; that he had requested leave; and that he believed leave had been
approved.  Although petitioner may have been approved leave initially,
he was repeatedly informed that continuing leave was not approved and
he was expected to report for duty.  With regard to the second charge,
petitioner argues that he did not know his use of the calling card for
personal calls was unauthorized.  Given that the card itself bore the
legend  “for official government use only,” petitioner's argument is not
persuasive.  Finally, with regard to alteration of the laptop computer,
petitioner does not deny that he altered the laptop as alleged, but
instead states that his actions were intended to “upgrade” the computer.
The salient fact, however, is that petitioner did not have permission to
alter the agency-owned computer.  Based upon the foregoing, the Commission
finds that petitioner has not established that the agency's explanations
were pretextual.

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

RIGHT TO FILE A CIVIL ACTION (W1092)

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 (Z1092)

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:




May 29, 1999

       DATE     Ronnie Blumenthal, Director
      Office of Federal Operations
1The record reflects that the MSPB AJ did not consider petitioner's
allegation of disability discrimination.  This allegation, however,
will be considered by the Commission.

2This allegation is the subject of other, pending proceedings.

3Petitioner argues that the agency discriminated against him with regard
to each of the three charges, but has not argued that his removal itself
pursuant to the three charges was discriminatory, i.e., that other,
similarly situated employees have not been removed for committing a
similar array of infractions.

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