Robert W. Bing v. Department of the Navy
03990061
EEOCFeb 1, 2000Check TreatmentRobert W. Bing v. Department of the Navy
03990061
February 1, 2000
Robert W. Bing, )
Petitioner, )
) Petition No. 03990061
v. ) MSPB No. AT-0752-98-0855-I-1
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
INTRODUCTION
On February 26, 1999, Robert W. Bing (hereinafter referred to as
petitioner) timely filed a petition with the Equal Employment Opportunity
Commission (the Commission) for review of the Initial Decision of the
Merit Systems Protection Board (MSPB or the Board) issued December 23,
1998, concerning an allegation of discrimination in violation of Section
501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §791 et seq.
The MSPB found that the Department of the Navy (agency) had not engaged
in disability discrimination as alleged by petitioner. For the reasons
that follow the Commission concurs with the decision of the MSPB.
ISSUE PRESENTED
The issue presented is whether the Board's determination that petitioner
failed to prove that the agency discriminated against him based on
disability is supported by the evidence in the record as a whole.
BACKGROUND
Petitioner was employed by the agency as a Store Worker. He suffered
from peripheral vascular disease and discomfort resulting from back
surgery he had in 1995. On January 12, 1996, petitioner requested
that the agency provide him reasonable accommodation due to his medical
condition. The agency's physician stated that petitioner's condition
limited his ability 1) to lift objects no more than forty pounds and
no more than twenty-five pounds frequently, 2) to walk for prolonged
periods of time, 3) to withstand extreme temperatures, and 4) to stand
or sit for more than two to three hours. The agency offered petitioner
the position of Sales Store Checker as an accommodation on October 9,
1996. He accepted the accommodation which included breaks every two
to three hours. On January 31, 1998, petitioner reported to work at
9:00 A.M.. At 11:30 A.M., he decided to close his register in order to
take a break. Petitioner contends that his supervisor approached him
and told him that he could not take a break at that time because there
were several customers in line and not enough people at the registers.
Petitioner allegedly shouted back at his supervisor that he should still
get a break. Supervisor told petitioner to return to his register and
that he may take a break at noon. At 11:55 A.M., a co-worker arrived for
duty and petitioner's supervisor brought the employee over to replace
petitioner so he may take his break. Petitioner allegedly beat on the
check stand with his fists and screamed at his supervisor. Further, the
agency contends that petitioner shook his finger in his supervisor's face
telling her to read the union contract. Upon the petitioner's conduct,
the supervisor took him to see the acting Commissary Officer. In his
office, petitioner allegedly threatened his supervisor.<1> Based upon
the incidents of that day and petitioner's past disciplinary record, the
agency removed petitioner effective May 9, 1998.<2> Petitioner appealed
this action to the MSPB. In his appeal, he argues that the agency failed
to accommodate his disability and that the agency's failure led to an
agitation of his condition. Petitioner alleges that the agency was aware
that its failure to provide a break would result in his irritability.
The MSPB AJ sustained the agency's decision and upheld petitioner's
removal. In his initial decision, the MSPB AJ found that petitioner
failed to establish a prima facie case of disability discrimination for
he failed to establish that he is a qualified disabled person and that
the agency failed to properly accommodate him. The MSPB AJ also held
that the supervisor complied with the reasonable accommodation citing
that petitioner reported to work at 9:00 A.M. and was allowed to take
a break by 12:00 P.M., within the two to three hour limitation set by
petitioner's physician. Further, the MSPB AJ found that the agency
articulated a legitimate, nondiscriminatory reason for its removal of
petitioner, namely his disrespectful and discourteous conduct and his
use of abusive language toward his supervisor.<3> Therefore, the MSPB
AJ upheld the agency's decision to remove petitioner.
Petitioner petitions for review of the MSPB AJ's initial decision.
In his petition, petitioner argues that the MSPB AJ inappropriately
placed emphasis on the affidavits of his supervisor and his co-worker.
Petitioner further argues that the MSPB AJ failed to rely on the reports
and recommendations of his physician in finding that the agency complied
with the reasonable accommodation. Finally, petitioner notes that the
agency was also on notice that irritability was a factor in his condition.
ANALYSIS AND FINDINGS
The Commission must determine whether the decision of the Board
with respect to the allegation of discrimination based on disability
(peripheral vascular disease) constitutes a corrective interpretation of
any applicable law, rule, regulation or policy directive and is supported
by evidence in the record as a whole. 29 C.F.R. §1614.305(c).
In the case at hand, petitioner alleges that the agency failed to make
a reasonable accommodation when he was denied a break. Subsequently,
he was disciplined for his behavior when he was denied such a request.
Under the Commission's regulations, an agency is required to make
reasonable accommodation of the known physical and mental limitations
of a qualified individual with a disability unless the agency can show
that accommodation would cause an undue hardship. 29 C.F.R. §1630.9(a).
Petitioner must first establish a prima facie case of disparate treatment
disability discrimination by showing that: (1) he is an individual with a
disability, as defined by 29 C.F.R. §1630.2(g);<4> (2) he is a qualified
individual with a disability pursuant to 29 C.F.R. §1630.2(m); and (3)
he was subjected to an adverse personnel action under circumstances
giving rise to an inference of disability discrimination. See Prewitt
v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981).
We turn now to an examination of petitioner's disability claim.
Initially, we must reach a threshold determination as to whether
petitioner falls within the protection of the Rehabilitation Act of
1973. One bringing a claim of disability discrimination must first
establish that he is a member of the class of persons protected by the
Rehabilitation Act, i.e., a qualified individual with a disability.
An individual with a disability is one who: (1) has a physical or mental
impairment that substantially limits one or more major life activities;
(2) has a record of such an impairment, or (3) is regarded as having
such an impairment. 29 C.F.R. §1630.2(g). The Commission has defined
"substantially limits" as "[u]nable to perform a major life activity
that the average person in the general population can perform" or
"[s]ignificantly restricted as to the condition, manner or duration
under which an individual can perform a particular major life activity
as compared to the condition, manner, or duration under which the
average person in the general population can perform that same major
life activity." 29 C.F.R. §1630.2(j)(i) and (ii). Major life activities
include such functions as caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working. EEOC
Regulation 29 C.F.R. §1630.2(i).
Upon review of the record, we find that petitioner demonstrated that he
has a physical impairment. However, whether petitioner has impairments
and those impairments affect and substantially limit a major life activity
present separate questions. Based upon the record, the Commission finds
that the MSPB AJ properly determined that petitioner's impairment does not
rise to the level of a disability that substantially limits a major life
activity. Further, there is no persuasive evidence that petitioner has a
record of such an impairment nor was regarded by management officials or
co-workers as having a substantially limiting condition. Nonetheless, the
record indicates that the agency gave petitioner reasonable accommodation
when it placed him in his current position and provided him with breaks
every 2-3 hours. However, this does not in and of itself indicate that
petitioner was regarded as having a substantial limitation. Therefore,
the Commission finds that petitioner failed to show that he is a qualified
individual with a disabiltiy.
Assuming, arguendo, that petitioner's impairments were found to have
been substantially limiting, and he was determined to be a qualified
individual with a disability, we would have found that the agency's
action is not tantamount to discrimination. As a preliminary matter,
the Commission notes that there is no nexus shown between petitioner's
condition and the behavior in which he engaged. Further, the
Rehabilitation Act does not preclude an agency from enforcing standards
of conduct, as long as such standards are job-related, consistent
with business necessity, and enforced uniformly among all employees.
The Commission's Enforcement Guidance on the Americans with Disabilities
Act and Psychiatric Disabilities, No. 915.002 (March 25, 1997) states
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." Id. at 29. In this case, the
agency terminated petitioner for violating an standard of employee work
place conduct that bars insubordination by employees, a standard that
is, by definition job-related and consistent with business necessity.
Further, the evidence indicates that an employee who engages in this
type of misconduct would not be maintained.<5>
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
Board'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 RIGHTS - ON APPEAL
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W1199)
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:
Feb. 1, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to petitioner, petitioner's representative
(if applicable), the agency, and MSPB on:
_________________________ __________________________
1 His supervisor stated in her affidavit submitted to MSPB that
petitioner told her, "you mark this down, I'm going to get you no matter
how long it takes - - I will get you!"
2 The record indicates that the agency issued petitioner a letter of
reprimand for insubordination on February 13, 1997 and a fourteen-day
suspension for insubordination on July 1, 1997. Agency file, Tabs 4n
and 4r.
3 The MSPB AJ also noted that the incident of January 31, 1998 was only
one of a string of disrespectful and discourteous manners displayed by
petitioner to his supervisor.
4 The October 1992 amendments to the Rehabilitation Act provide that the
standards used to determine whether Section 501 of the Rehabilitation
Act has been violated in a complaint alleging non-affirmative action
employment discrimination shall be the standards applied under Title
I of the Americans With Disabilities Act (ADA). 29 U.S.C. §791(g).
The regulations at 29 C.F.R. §1630 implement the equal employment
provisions of the ADA.
5 See Civilian Employee Discipline and Adverse Actions, Agency File,
Tab 4c (establishing agency policy for maintaining civilian employee
discipline and procedure for effecting corrective actions relating
to misconduct). In Appendix A of this guidance, it states that the
penalty for a third offense for insubordination should be removal.