Kelvin Barefield, Petitioner,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 31, 2000
03a00104 (E.E.O.C. Aug. 31, 2000)

03a00104

08-31-2000

Kelvin Barefield, Petitioner, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


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.