03a00086
11-17-2000
Daniel F. Fitzgerald, Petitioner, v. William S. Cohen, Secretary, Department of Defense, Agency.
Daniel F. Fitzgerald v. Department of Defense
03A00086
November 17, 2000
.
Daniel F. Fitzgerald,
Petitioner,
v.
William S. Cohen,
Secretary,
Department of Defense,
Agency.
Petition No. 03A00086
MSPB No. SE-0752-98-0221-I-1
DECISION
INTRODUCTION
Daniel F. Fitzgerald (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) 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., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.<1> The Commission accepts the petition in
accordance with the provisions of the Civil Service Reform Act of
1978 and EEOC regulations, 29 C.F.R. � 1614.303, et seq.<2> The MSPB
found that the Department of the Air Force (agency) did not engage in
discrimination as alleged by petitioner. Petitioner alleges he was
discriminated against based on mental disability (bipolar disorder,
depressive psychosis, reactive depression, and personality disorder),
age (d.o.b. 3/19/39), and reprisal (prior EEO activity) when he was
removed from his employment as a teacher with the agency's Dependent
Schools (DoDDS). 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 discriminatory removal constitutes a correct
interpretation of the applicable laws, rules, regulations, and policy
directives, and is supported by the record as a whole.
BACKGROUND
Petitioner commenced employment as a teacher with DoDDS in 1967.
He taught in Japan from 1967-69, in Germany from 1969-73, in Japan
from 1973-84, in Korea from 1984-85, and then was assigned again to
Germany in 1985. In 1986, he was removed for disciplinary reasons, but
the removal was overturned in arbitration and he returned to duty in a
different school beginning in 1988. In overturning the 1986 removal, the
arbitrator found based on testimony from petitioner's treating physician
that the misconduct at issue had resulted from a mental impairment
(manic depression) which substantially limited major life activities
(unspecified) at the time of the misconduct. The arbitrator's decision
further stated that the issue of whether complainant was entitled to
reasonable accommodation need not be reached, because complainant's
physician had testified that petitioner had been able to perform his
teaching duties without accommodation since approximately December 1986.
Petitioner thereafter continued to work for the agency in Germany
until 1996, when his position was excessed and he was again reassigned
to Japan. Although all DoDDS teachers are employed under mobility
agreements, petitioner asked that he be excused from the transfer
because of his mental disability. Specifically, petitioner advised the
agency that he did not want to uproot his family, and that he wanted to
remain in the care of his treating physician in Germany for his bipolar
condition.
The agency denied petitioner's request and ordered him to report for duty
in Japan. In August, 1996, he was hospitalized for two weeks because
of an episode of reactive depression, and therefore did not report to
Japan at the beginning of the school year. Petitioner remained in
Germany, taking sick leave extending through the 1996 school year.
When the principal at petitioner's newly assigned school in Japan
requested further information from petitioner regarding his condition,
petitioner responded with doctors' notes which diagnosed him as having
chronic depressive psychosis and reactive depression, and which stated
that he should refrain from making any drastic life changes. Deeming
this documentation insufficient, the agency requested a fitness-for-duty
(FFD) examination in April, 1997. The psychiatrist who performed the FFD
examination diagnosed petitioner as having "bi-polar D/O by History with
hypomanic exacurbations (sic)," and personality disorder, not otherwise
specified. With respect to petitioner's contention that requiring him
to move to Japan would cause undue stress, the psychiatrist indicated
that psychiatric care was available in Japan, but he was unable to make
any definitive recommendation regarding the reassignment. The agency
concluded that petitioner had not demonstrated a basis for remaining in
Germany.
Petitioner reported to Japan in May, 1997, and performed miscellaneous
duties until the school year ended, and then returned to Germany in July
for the summer vacation. He sought sick leave at the beginning of the new
school year, but the agency denied it based on insufficient supporting
documentation. Petitioner reported for duty on October 6, 1997.
On October 23, 1997, petitioner was given leave to attend an EEO fact
finding conference in Germany which pertained to his pending complaints.
The conference ended October 29, 1997, but petitioner did not return to
duty in Japan until November 10, 1997, and did not contact his principal
to request additional leave. As a result, the agency issued him a letter
of reprimand on December 10, 1997, at which time he was placed on paid
administrative leave.
Petitioner was engaged in additional incidents of alleged misconduct
on December 8, 11, 12, and 18, 1997, on the basis of which the agency
removed him, citing alleged disorderly and disrespectful conduct,
failure to follow a directive. Specifically, the agency charged:
(1) on December 8, petitioner was disrespectful and disorderly during a
meeting in which the principal shared his observations of petitioner's
teaching performance, and during a conversation with the Housing Director
regarding a letter petitioner had written to her about problems he had
securing off-base housing;
(2) on December 11, petitioner was disorderly and disrespectful, and
failed to follow directives, when he startled a teacher who came upon him
in the library, his having entered school property without permission
in violation of the terms of the administrative leave on which he had
been placed the day before;
(3) on December 11, petitioner became argumentative during a meeting at
the base security office with the Chief of Police and had to be ordered
to leave the office;
(4) on December 11, petitioner appeared "extremely distraught and
depressed" during a meeting at the Navy Lodge to discuss his leave
status;
(5) on December 12, petitioner was disrespectful when, during a telephone
conversation with the principal, petitioner cursed and spoke sharply; and
(6) on December 18, petitioner was disrespectful and disorderly during a
telephone conversation with the school secretary and during a subsequent
meeting with her and the assistant principal, and later violated a
directive when he showed up at the school without prior permission.
Petitioner appealed his removal to the MSPB, and initially requested a
hearing but later withdrew his request. The MSPB Administrative Judge
(AJ) therefore issued an Initial Decision (ID) based on the written
record, finding that the charges were sustained in part.<3>
With respect to petitioner's claim that his removal constituted disability
discrimination, the AJ concluded that petitioner is an "individual with
a disability" within the meaning of the Rehabilitation Act because he
has a mental impairment, bipolar disorder, which substantially limits
him in the major life activity of working. ID at 30-36. However,
the AJ further found that petitioner was not a "qualified" individual
with a disability because he "has not shown that he can perform the
essential duties of his teaching position without accommodation, and
. . . has not articulated a 'reasonable' accommodation under which he
can perform his duties." ID at 36.<4> The AJ further concluded that the
medical evidence did not support petitioner's contention that his mental
impairment was the cause of or contributed to his misconduct. ID at 41.
Finally, the AJ concluded that complainant had not established that his
removal was motivated by either age discrimination or retaliation.
Petitioner filed a petition for review of the ID. The MSPB denied the
petition but reopened the appeal on its own motion, affirmed the ID as
modified, and sustained petitioner's removal. Specifically, the MSPB
found that petitioner had not met his burden to prove that he was an
"individual with a disability" under the Rehabilitation Act because the
evidence failed to establish that his bipolar disorder substantially
limited him in working. See MSPB Opinion and Order at 6-7. The MSPB
further found that, even assuming arguendo petitioner was an "individual
with a disability," and even if his misconduct was a manifestation of
his bipolar disorder, the evidence did not establish that petitioner's
removal was based on disability discrimination because the agency was not
required to excuse his misconduct as an accommodation in the circumstances
of this case. Relying on Laniewicz v. Department of Veterans Affairs,
83 M.S.P.R. 477 (1999), and the authorities cited therein, the MSPB
concluded that petitioner's removal was for violation of a job-related
employee conduct standard which is consistent with business necessity
and uniformly applied, and was not discriminatory on any alleged basis.
In his petition for review filed with this Commission, petitioner asserts,
inter alia, that the agency had been providing him with accommodation
of his mental disability since he prevailed in the 1988 arbitration of
his prior removal, and that this demonstrates that he is a qualified
individual with a disability. He further asserts that the principal's
actions constituted harassment, and disputes the allegations of misconduct
against him.
In a subsequent filing dated May 8, 2000, petitioner asserts that the
agency has canceled his removal action, but that he is still pursuing
his discrimination claim to seek appropriate remedies. He also asserts
that he has four other EEO complaints pending, including a separate
claim which challenges the agency's 1997 transfer of complainant from
Germany to Japan as a denial of reasonable accommodation.<5>
ANALYSIS AND FINDINGS
Based on our review of the record before the MSPB at the time it rendered
its decision, we concur in the MSPB's determination that assuming
arguendo complainant is a qualified individual with a disability, he
has failed to establish that his removal was discriminatory. For the
reasons reviewed in the MSPB's decision, the record demonstrates that the
conduct standards at issue were job-related and consistent with business
necessity, and that the agency did not excuse similar misconduct by
other employees. See EEOC Enforcement Guidance on the Americans with
Disabilities Act and Psychiatric Disabilities, questions 30-31 (March
25, 1997). We further find that the record does not support petitioner's
contention that his removal was motivated by discrimination based on
age or reprisal. See O'Connor v. Consolidated Coin Caterers Corp.,
517 U.S. 308 (1996).
CONCLUSION
Therefore, after a careful review of the record, including petitioner's
contentions on appeal and arguments and evidence not specifically
addressed in this decision, we CONCUR.
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
November 17, 2000
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.
2On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
3 Specifically, the AJ found that on December 8, petitioner was disorderly
and disrespectful during his meeting with the principal and at the housing
office; that on December 11, he was not disorderly and disrespectful in
the library, but did fail to follow a directive when he came to the school
without prior permission; that he was disorderly and disrespectful at the
security office but did not fail to follow a directive; that he was not
disorderly and disrespectful at the Navy Lodge and did not fail to follow
a directive; that on December 12, petitioner was disrespectful during
his telephone conversation with the principal; and that on December 18,
petitioner was not disrespectful and disorderly during his telephone
conversation with the school secretary or during the meeting with her
and the assistant principal, but did fail to follow a directive when he
came to school without prior permission.
4To the extent the ID, in analyzing whether complainant was "qualified,"
limited its examination to the duties of his then-current teaching
position, we note that the applicable definition, set forth in 29
C.F.R. � 1630.2(m), provides that an individual is qualified if, with
or without accommodation, he can perform the essential functions of
"the position such individual holds or desires." (emphasis added).
However, in light of the disposition of this appeal explained herein,
we do not reach the issue of whether or not petitioner was a qualified
individual with a disability under this standard.
5See Fitzgerald v. Department of Defense, EEOC Appeal No. 01995303 (
, 2000).