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View Case Details
 
Ronald A. Smith, Petitioner,
vs.
Donna E. Shalala, Secretary, Department of Health and Human Services, Agency
 
Case:
MSPB No. DC0752960505 Petition No. 03960126
 
Location:
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
 
Date:
July 18, 1997
 
OPINION: DECISION

INTRODUCTION

On September 16, 1996, Ronald A. Smith (hereinafter referred to as petitioner) filed a petition with the Equal Employment Opportunity Commission (the] Commission) for review of the Merit Systems Protection Board's (MSPB) final decision on his case. In that decision, the MSPB found that, contrary to petitioner's allegations, the agency had not discriminated against him on the bases of his physical disability and/or reprisal when it removed him from the position of WG-2 Elevator Operator, effective February 16, 1996. See SEC. 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. SEC. 791 et seq., and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. SEC. 2000e et seq. The Commission accepts this petition in accordance with the Civil Service Reform Act of 1978 and EEOC Regulations at 29 C.F.R. SEC. 1614.303 et seq.

ISSUE PRESENTED

Whether the MSPB's determination that the agency had not discriminated against petitioner on the bases of his physical disability and/or reprisal when it removed him from the position of WG-2 Elevator Operator constitutes a correct interpretation of the applicable laws, rules, regulations, and policy directives, and is supported by the record as a whole.

BACKGROUND

Petitioner filed an appeal with the MSPB alleging that his removal constituted discrimination based on disability and reprisal. Following a hearing, an MSPB Administrative Court (AJ) issued an initial decision sustaining the removal and finding no discrimination. The initial decision became the MSPB's final decision on August 14, 1996. Petitioner then filed this petition for review. *fn1

Petitioner worked in the Clinical Center of the agency's National Institutes of Health (NIH). Record evidence established that petitioner had a history of heart disease and hypertension. Record evidence also suggested that petitioner may have had a stroke in 1989.

In July 1995, the Chief of the Housekeeping and Fabric Care Department proposed to remove petitioner on charges that on April 19, 1995, he threatened to inflict bodily injury to his supervisor and engaged in disruptive conduct. In January 1996, the Deputy Director for Management and Operations -- the Deciding Official (DO) in this case -- found that the evidence supported the charges and sustained the removal.

According to the notice of proposed removal, the following events led to the charges against petitioner. On April 19, 1995, petitioner reported for duty at 4:00 p.m. and was assigned to operate the elevator used for emergencies in the Clinical Center. Petitioner told his second-line supervisor that he did not feel well. Because petitioner smelled of alcohol, the second-line supervisor asked him to go to the Occupational Medical Service (OMS). Petitioner refused and left the office.

Shortly thereafter, a clerk-typist informed the second-line supervisor that she had received a telephone call from petitioner stating that he was going home. The stay-in-school student -- petitioner's relief -- telephoned petitioner and petitioner began cursing at him and asking him why he was late. When the elevator arrived where the stay-in-school student was waiting, petitioner stated that he was going to "kick his mother f ass." The Housekeeping Leader, who observed the incident, told petitioner she was going to call the second-line supervisor. Petitioner responded by stating, "Call her and I will beat her f ass"

When the second-line supervisor arrived, she found the stay-in-school student and the first-line supervisor in front of the elevator with petitioner cursing and shouting. The second-line supervisor instructed petitioner to remove his jacket from the elevator and told the stay-in-school student to operate it. Petitioner apparently questioned her order and used profane language towards her. As the first and second-line supervisors started down the corridor, petitioner followed them and continued to argue, curse and yell at the top of his voice.

While the second-line supervisor was waiting in the elevator lobby, petitioner approached within six inches of her face and stated: "I'm going to beat your ass and f you up." The second-line supervisor told petitioner to move away from her. Because of petitioner's threatening manner, the first-line supervisor stepped between the two and asked petitioner to stop his behavior.

As the first and second-line supervisors walked to the office, petitioner continued following them and using abusive language. The second-line supervisor took the elevator, went back to her office and called the NIH police. Petitioner apparently followed her, entering the office and asking the clerk-typist where she was and stating that he was "going to beat [the second-line supervisor's] ass and f her up." Petitioner then left the office.

Two NIH police officers (Officers 1 and 2) arrived at the Clinical Center. When they began questioning petitioner, he called one of them a "racist redneck," and said that he was going home. Petitioner was detained for questioning. In the Police Arrest Report, Officer 1 said that upon arriving at the scene, the second-line supervisor advised him that petitioner had a "strong odor of alcoholic beverage" on his breath. Officer 1 stated that about 3 weeks earlier, he had responded to another call involving petitioner, i.e., a possible fight in progress, during which petitioner also "smelled like an alcoholic beverage."

Consequently, Officer 1 requested the Sergeant's presence at the scene and, upon arriving, the Sergeant requested that petitioner go to OMS for evaluation "for his drinking problem." At that point, petitioner referred to the first-line supervisor as a "'back stabbing mother f '" and threatened to "'beat his ass'" if petitioner ever caught him. Petitioner also stated that he knew where the first-line supervisor lived.

The officers escorted petitioner to OMS where he alternated between periods of calm and periods of yelling and cursing. After the OMS staff physician spoke to petitioner, one of the officers advised petitioner that he was being arrested for disorderly conduct. Petitioner resisted arrest, refused to comply with the officers' orders, and attempted to kick them. The officers handcuffed petitioner and laid him on the floor. Petitioner complained of chest pains but then had a short period of decreased consciousness.

Petitioner was taken to a nearby hospital for evaluation and then to the police station. The Police Arrest Report indicated that petitioner continued his abusive and disruptive behavior at the hospital and the county police station. Petitioner was detained until April 24, 1995. The agency placed petitioner on administrative leave following the incident and he remained thereon until his removal in February 1996.

In response to the proposed removal, petitioner asserted that his misconduct was the result of a medical condition, i.e., a seizure disorder. Consequently, the DO allowed petitioner the opportunity to present medical evidence support his assertion.

Following the incident at issue in this case, petitioner testified that he was referred for evaluation after complaining of episodes of uncontrolled rage. Petitioner was evaluated by the Neurology Resident at the Department of Veterans' Affairs (VA) Medical Center in Washington, D.C. Based on her examination of petitioner and the result of an electroencephalogram (EEG), the Neurology Resident provided a diagnosis of "episodic dyscontrol vs. Temporal lobe seizures associated with temporal lobe abnormalities on EEG," and prescribed an anticonvulsant to control any seizure episodes. *fn2

The OMS Medical Director reviewed petitioner's medical records and in a September 1995 memorandum to the DO, stated that the records provided a basis upon which to conclude that petitioner's behavior on April 19, 1995 was "most likely" due to a medical condition which could be controlled by medication. As a result, the DO offered petitioner a last chance agreement. *fn3 The agreement provided, inter alia, that petitioner would follow any medical treatment plan prescribed by his attending physician and, to the extent that other factors such as drugs or alcohol had contributed to his behavior, he would participate in and successfully complete a rehabilitation program approved by the agency's EAP. Petitioner declined to enter the agreement.

Consequently, the DO issued a decision letter upholding the removal. Therein, the DO noted that in determining the appropriateness of the penalty, he had considered previous instances of petitioner's disruptive conduct. He further noted the numerous previous occasions on which petitioner had been referred to the Employee Assistance Program (EAP).

At the hearing, petitioner testified that he recalled reporting to work on April 19, 1995; telling the second-line supervisor that he did not feel well; her asking him if he wanted to go to OMS and his saying "no" that he would stay and work. Petitioner also testified that he remembered talking with the first-line supervisor in front of the elevator and saying that he had to go home. Petitioner said that the next thing which he remembered was the Lieutenant taking the shackles off him in the NIH police station.

Other than the above, petitioner did not recall any of the other events set forth in the proposed removal. That petitioner engaged in the behavior described in the proposed removal, however, was supported by the hearing testimony of various eyewitnesses as well as contemporaneous statements and reports prepared at the time of or shortly after the incident at issue.

The OMS Staff Physician who examined petitioner on April 19, 1995, made a note for the record following the incident. Therein, the Staff Physician indicated that the officers had requested an evaluation of petitioner. She advised them that because of his verbal hostility, "classic objective methods such as breathalyzer or blood alcohol were unlikely to be possible." She agreed, however, to talk with petitioner. The Staff Physician reported that petitioner recognized her and accepted her as a "friendly individual." He told her that "at some point this morning" he had met a neighbor who had offered him some beer. She said that petitioner described himself as drinking the beer and then "'everything just came all apart.'" Petitioner also advised her that he had "'more beer & some gin.'" Later in the report, the Staff Physician stated that the "odor of alcohol throughout was very strong."

At the hearing, the agency's Counsel asked the Staff Physician whether she thought that petitioner was intoxicated on the date in question. In response, the Staff Physician said that she had interacted with petitioner before but had never seen him intoxicated. The Staff Physician said that he seemed like himself only drunk. She also said that he smelled of alcohol and behaved in a manner consistent with someone who was intoxicated. When asked if petitioner's behavior could be explained by alcohol consumption, the Staff Physician said that there was "never any thought in her mind that day except that his behavior was explained by alcohol consumption." On cross-examination, the Staff Physician said that the 2-5 minute episode of partial consciousness when petitioner was on the clinic floor could have been a seizure.

At the beginning of his testimony, the OMS Medical Director stated that his specialty was Occupational Medicine, i.e., he was not a Neurologist. He testified that if there is a problem with an employee's behavior, attendance, or performance which was thought to be due to a medical condition, the agency's policy was to request a review of the employee's medical records to determine the nature and potential duration of the limitations. The Medical Director indicated that if it was a "close call," the tendency was to err in the employee's favor.

The Medical Director stated that after he reviewed petitioner's medical records, he had a telephone conversation with the Neurology Resident. According to his testimony, the Neurology Resident said that as a result of the EEG, she believed that petitioner had temporal lobe epilepsy and that she had prescribed an anticonvulsant. The Neurology Resident told him that during a seizure, there can be any number of "semi-purposeful" behaviors, including rage. The Medical Director said that he thought petitioner's rage episode on April 19, 1995 could have been associated with a seizure condition.

He readily conceded, however, that he did not ask the Neurology Resident how long a seizure might last or tell the Neurology Resident the duration of petitioner's behavior on that day. The Medical Director said that based on the Neurology Resident's evaluation and interpretation of the diagnostic study, i.e., EEG, he determined that the evidence was sufficient to conclude that the incident was a result of the seizure disorder.

On cross-examination by petitioner's Counsel, the Medical Director conceded that his opinion had changed about one month before the hearing as a result of his conversation with the NIH Neurologist. He said that he now believed that petitioner's behavior began with his drinking earlier in the day and his (the Medical Director's) personal assumption now was that petitioner did not have a seizure but rather was panicked about his involvement with the police. The Medical Director testified that he had asked another NIH physician for referral to a neurologist with expertise in temporal lobe epilepsy and was given the NIH Neurologist's name.

The Medical Director said that he did not know the NIH Neurologist and that the NIH Neurologist had no reason to be biased one way or the other when he (the Medical Director) spoke to him. The Medical Director said that he described to the NIH Neurologist the events of April 19, 1995 as he understood them. In response, the NIH Neurologist told him that a seizure was "exceptionally unlikely" as petitioner could interact meaningfully with the environment around him.

The Medical Director also said that the Neurology Resident never told him that petitioner's behavior on April 19, 1995 was the result of a seizure that day or of the condition generally. The Medical Director said that he did not believe that all of petitioner's behavior on April 19, 1995 was caused by a seizure but that he would not conclude none of it was caused by a seizure. He said that in his September 1995 memorandum, he stated that it was "probable," but that today he would say that it was "possible" that some of petitioner's behavior was caused by a seizure.

The NIH Neurologist -- the Chief of the Epilepsy Section at NIH -- testified as an expert witness. The NIH Neurologist explained that epilepsy is a transient neurological impairment caused by the sudden and irregular discharge of nerve cells in the brain. He stated that there are two types of seizures: 1) generalized tonic clonic seizures which involve jerking motions of the limbs for about a minute and are followed by a period of confusion or sleep lasting from a few minutes to several hours and 2) complex partial seizures which involve a change in consciousness followed by a short period -- about a minute - of confusion, i.e., the individual cannot perform organized activities. The NIH Neurologist said that the longest seizures last for 10 minutes but that the average is about 1 minute. He said that a seizure lasting 30-40 minutes would be extremely unusual.

According to his testimony, it is very unusual for complex partial seizures to present themselves in a violent manner. In a study of 5,000 seizure incidents, only a few were "violent," and in those instances, the person's actions were very disorganized, e.g., the person kicked over a wastebasket or swung randomly into the air. He indicated that there were 1 or 2 cases in which the person yelled at a caregiver but that the event was very transient and undirected. The NIH Neurologist stated that the above seizures lasted about a minute and the episodes of "so-called" violence lasted only several seconds. He explained that violence is unusual because seizures are "disabling" events in which the person's ability to perform coherent organized actions are decreased, i.e., a seizure impairs the functions of the nervous system.

The NIH Neurologist said that certain information was needed for the diagnosis of epilepsy: a clinical history, including a good description of the events thought to be seizures by observers to the events; a neurological exam; and laboratory tests such as a CAT scan, MRI, and EEG. Having reviewed petitioner's medical records, the NIH Neurologist said that he could not determine -- and did not believe that any other physician could determine either - whether petitioner had epilepsy. *fn4 In this regard, he noted that because epilepsy is intermittent, it is possible to show normal brain waves between times. As a result, he said that it was normal practice to do several EEGs rather than just one as in petitioner's case. He also said that a person who does not have epilepsy can have an abnormal recording as petitioner did.

The NIH Neurologist testified that he saw nothing in petitioner's medical records to indicate that the physicians who treated petitioner, including the Neurology Resident, had a full description of the incident at issue from those who observed it. He said that such a description was necessary for a definite diagnosis. Petitioner's own expert -- a Neurologist at the VA - likewise testified that the information was insufficient to support a clear diagnosis of a seizure disorder, and that more tests and studies were needed in this regard.

The NIH Neurologist testified that during the post-seizure period, the person is confused and can perform only the simplest of tasks, e.g., sit down or put their glasses back on. He also was asked his opinion by the agency's Counsel about whether certain behaviors exhibited would be more or less likely to occur during a seizure. For example, he said that it would be unlikely during a seizure for a person to say "'I know where you live and I'm going to get you.'" The NIH Neurologist said that the comment was too lucid and directed to occur during the impaired brain function typical of a seizure.

In another example, he said that if a person followed someone down the hall and said "I'm going to get your ass and f you up," it would be more possible that there was a seizure if the statement was made only once and the person then appeared confused and inactive. He said, however, that if the statement was repeated over a long period of time and on multiple occasions, it would be very unlikely that there was a seizure. That is, as the episode is more and more prolonged, a seizure is less and less likely.

The NIH Neurologist testified that he had read the proposed removal and that the incident at issue had lasted for about an hour and 10 minutes. He said that it was very unlikely for a seizure to last that long and that nothing in the proposed removal indicated that a seizure was being described. The NIH Neurologist also stated that he had read the September 1995 memorandum from the OMS Medical Director and that he disagreed with his conclusion.

Record evidence showed that petitioner previously had filed two EEO complaints. The 1993 complaint concerned a proposed suspension when petitioner was a Food Service Worker in the Nutrition Department. The 1994 complaint concerned petitioner's claim of race and disability discrimination when, in June 1994, the Assistant Chief of the Housekeeping Department allegedly punched him in the chest.

Following his removal, petitioner apparently attempted to amend his June 1994 complaint to include, inter alia, the removal action. The agency advised petitioner that he should file a new complaint. According to the record, petitioner's June 1994 complaint was pending a hearing before an EEOC AJ. Because petitioner argued that the prior action was part of a continuing pattern of discrimination, the EEOC AJ dismissed his complaint as a "mixed case" so that the MSPB could hear those charges as well. *fn5

In the initial decision, the MSPB AJ upheld the removal and found no discrimination. With respect to petitioner's disability claim, the AJ found that petitioner had alleged that he was disabled because of heart disease and a seizure condition. The AJ noted that in a pre-hearing order, he had ruled that "the accommodation of [petitioner's] heart condition would not be accepted as an issue as there was no allegation of a causal connection between that condition and the incidents of April 19, 1995." The AJ stated that in his closing argument, petitioner for the first time alleged that the agency removed him because of the "perception" of agency officials that he had an alcohol problem. Because the issue was not timely raised, the AJ said that he would not consider it.

The AJ found that petitioner failed to show that he was an individual with a disability under the regulations and, even if he had, he failed to show that his actions on April 19, 1995 were the result of a seizure disorder. In concluding that petitioner failed to show that he was disabled, the AJ relied on the testimony of the two expert witnesses, i.e., the NIH Neurologist and the VA Neurologist. The AJ found that both witnesses had testified that petitioner's medical records contained insufficient information for a definitive diagnosis of a seizure disorder.

The AJ also found that the OMS Medical Director's initial advice to the agency, i.e., that petitioner's behavior on April 19, 1995 was the result of temporal lobe epilepsy was not controlling and did not otherwise establish a nexus between petitioner's misconduct and any disabling condition. In this regard, the AJ noted the Medical Director's testimony that: he was not a neurologist; his prior opinion was based on his conversation with the Neurology Resident; and he had changed his initial opinion after talking with the NIH Neurologist and being told by him that because of the nature and duration of petitioner's actions on April 19, 1995, it was exceptionally unlikely that his behavior was caused by a seizure.

The AJ further found that petitioner failed to show a causal connection between his disability and the misconduct at issue. Specifically, the AJ noted the NIH Neurologist's testimony that petitioner's actions and conversations described in the proposed removal and the hour-long duration of the incident were totally inconsistent with the behavior of someone undergoing a seizure. The AJ stated that the OMS Staff Physician's opinion -- upon learning of the diagnosis of temporal lobe seizures -- that petitioner could have had a seizure during the 2-5 minute period in OMS when she observed a decrease in consciousness was by itself insufficient to support a diagnosis or to establish that any of petitioner's prior disruptive conduct and threats that day were the result of a seizure condition.

Finally, the AJ found that even if petitioner had been able to show that some medical condition was responsible for his behavior, he had failed to articulate a reasonable accommodation that would allow him to perform the duties of his position. Specifically, the AJ noted that in the absence of a clear diagnosis, there was no persuasive evidence that petitioner's current medication, i.e., an anticonvulsant drug, would prevent a recurrence of his behavior. Petitioner's own expert testified that there was insufficient information to determine whether the drug would control petitioner's behavior or whether it even was necessary. In addition, because petitioner reported additional instances of rage when he stopped taking the medication, the AJ found that petitioner's assurances that he would comply with a medication regime did not constitute a reasonable accommodation.

With respect to petitioner's reprisal claim, the MSPB AJ found that petitioner had failed to establish a nexus between his prior protected activity and his removal. The AJ noted that petitioner previously had filed EEO complaints in1993 and 1994. The first concerned a proposed suspension when he was working as a Food Service Worker in the Nutrition Department of the Clinical Center.

The second concerned his allegation that the Assistant Chief of the Housekeeping Department had punched him in the chest. The Proposing Official testified that he had no knowledge of petitioner's complaint when he issued the proposed removal. Further, although the DO acknowledged that he was generally aware of petitioner's complaints, he testified that he had no knowledge of the specifics thereof.

The AJ noted that the individuals named in petitioner's complaints no longer worked for the agency, and thus played no role in the removal. Moreover, the DO denied that he considered petitioner's prior EEO activity in deciding to remove him and the record showed no motive on his part to retaliate against petitioner. Because of the seriousness of petitioner's misconduct and the absence of a retaliatory motive, the AJ found that petitioner failed to show a nexus between his prior EEO activity and his removal.

In his petition for review, petitioner -- through Counsel -- contended that the MSPB improperly: 1) limited the introduction of evidence relating to his reprisal claim; 2) refused to consider petitioner's heart disease as a disabling condition; 3) failed to permit the amendment of his disability claim to include alleged alcohol abuse; and 4) failed to hear other pending EEO charges. Petitioner also contended that the MSPB's decision was contrary to the weight of the evidence.

In response, the agency essentially asserted that the MSPB's decision was correct and that petitioner's contentions were without merit.

ANALYSIS AND FINDINGS

The Commission must determine whether the MSPB's decision with respect to petitioner's allegations of discrimination constitutes a correct interpretation of the applicable laws, rules, regulations and policy directives, and is supported by the evidence in the record as a whole. See 29 C.F.R. SEC. 1614.305 (c). For the reasons outlined below, the Commission concurs with the MSPB's findings.

Petitioner contended that the MSPB improperly limited the introduction of evidence regarding his discrimination claims and improperly failed to hear his prior pending EEO charges. Specifically, petitioner asserted that the agency's prior disciplinary actions against him formed the basis for his removal and that the MSPB therefore should have considered evidence regarding these past disciplinary acts so that petitioner could establish reprisal and continuing discrimination. Petitioner also complained that because the EEOC AJ dismissed his complaint and the MSPB declined to hear those charges, he has never had a hearing thereon.

Record evidence established that the agency removed petitioner because of his misconduct on April 19, 1995 and that the DO considered petitioner's past disciplinary record only to the extent that it affected his determination of the proper level of discipline to be imposed for the misconduct.

In his Teleconference Summary and Order dated June 11, 1996, the MSPB AJ determined that he could not perform a de novo review of the events which resulted in past disciplinary actions against petitioner and that the MSPB's consideration of past actions was limited to a review of the existing written record under a "clearly erroneous standard." The Commission finds no error in the MSPB AJ's determination. The Commission also notes that petitioner may reinstate his EEO complaint if he wishes to pursue it.

Disability Discrimination

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. SEC. 1614.203 (c). To establish a prima facie case of disability discrimination, petitioner must show that: 1) he is an individual with a disability as defined in 29 C.F.R. SEC. 1614.203 (a) (1), 2) he is a "qualified" individual with a disability as defined in 29 C.F.R. SEC. 1614.203 (a) (6), and 3) the agency took an adverse action against him. See Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981). Petitioner also must demonstrate a causal relationship between his disabling condition and the agency's reasons for the adverse action.

The threshold question is whether petitioner is an individual with a disability within the meaning of the regulations. EEOC Regulation 29 C.F.R. SEC. 1614.203 (a) (1) defines an individual with a disability as one who: 1) has a physical or mental impairment that substantially limits one or more of that person's major life activities; 2) has a history of such impairment; or 3) is regarded as having such an impairment. EEOC Regulation 29 C.F.R. SEC. 1614.203 (a) (3) defines "major life activities" as including the functions of caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

In his petition for review, petitioner contended that the MSPB improperly refused to allow him to amend his discrimination claim to include alleged alcohol abuse as a perceived disability.

The MSPB AJ found that in his closing argument, petitioner for the first time raised the allegation that the agency removed him because of a perceived disability, i.e., agency officials' "perception" that he had an alcohol problem. The AJ found that petitioner did not timely raise the issue and declined to consider it. The Commission finds no error in the MSPB's decision. *fn6

Petitioner also contended that the MSPB AJ improperly refused to consider his heart condition as a disability. Petitioner appeared to argue that agency officials -- knowing of his heart condition -- denied him access to medical treatment by barring him from OMS. According to petitioner, he attempted to establish this factual proposition to explain his conduct on April 19, 1995, and also as evidence of agency officials' punitive attitude toward his disability.

Prior to the hearing, the MSPB AJ ruled that "the accommodation of petitioner's heart condition would not be accepted as an issue as there was no allegation of a causal connection between that condition and the incidents of April 19, 1995." The Commission finds no error in the MSPB's ruling on this issue.

The Commission further finds no merit to petitioner's contention that he was barred from seeking medical treatment at OMS. Hearing testimony established that it was NIH policy that when an employee was referred for evaluation of suspected intoxication, an agency official was to accompany the employee to OMS in the event the employee became disruptive. Following a 1994 incident in which petitioner apparently was intoxicated and became abusive to an OMS staff physician, the OMS Director sent a memo to petitioner's supervisor reminding him of this policy. The record contained no evidence to indicate that petitioner had been denied medical treatment or that he was barred from seeking treatment at OMS.

Finally, petitioner contended that his behavior on April 19, 1995 was the result of a seizure disorder.

The MSPB AJ found that petitioner failed to show that he was an individual with a disability under the regulations. In reaching this conclusion, the AJ relied on the testimony of the two expert witnesses who testified that petitioner's medical records contained insufficient information for a definitive diagnosis of a seizure disorder. The AJ also found that the OMS Medical Director's initial advice to the agency, i.e., that petitioner's behavior on April 19, 1995 was the result of temporal lobe epilepsy, was not controlling and did not otherwise establish a nexus between petitioner's misconduct and any disabling condition.

In this regard, the AJ noted the Medical Director's testimony that: he was not a neurologist; his prior opinion was based on his conversation with the Neurology Resident; and he had changed his initial opinion after talking with the NIH Neurologist and being told by him that because of the nature and duration of petitioner's actions on April 19, 1995, it was exceptionally unlikely that his behavior was caused by a seizure.

The MSPB AJ further found that even if petitioner had established that he was disabled, he had failed to show a causal connection between his disability and the misconduct at issue. Specifically, the AJ noted the NIH Neurologist's testimony that petitioner's actions and conversations described in the proposed removal and the hour-long duration of the incident were totally inconsistent with the behavior of someone undergoing a seizure. The AJ stated that the OMS Staff Physician's opinion -- upon learning of the diagnosis of temporal lobe seizures -- that petitioner could have had a seizure during the 2-5 minute period in OMS when she observed a decrease in consciousness was by itself insufficient to support a diagnosis or to establish that any of petitioner's prior disruptive conduct and threats that day were the result of a seizure condition.

Having reviewed the record in its entirety, the Commission finds that the MSPB's decision with respect to petitioner's allegations of disability discrimination, i.e., that the agency did not discriminate against petitioner, constitutes a correct interpretation of the applicable laws, rules, regulations and policy directives, and is supported by the evidence in the record as a whole.

Reprisal Discrimination

To establish a prima facie case of reprisal discrimination, petitioner must show that: 1) he previously had engaged in statutorily protected activity; 2) the agency was aware of his protected activity; 3) he subsequently was subjected to adverse treatment by the agency; and, 4) the adverse action followed the protected activity in such a time and manner as to raise an inference of retaliation. Wrenn v. Gould, 808 F.2d 493, 500 (6th Cir. 1987); Cohen v. Fred Meyers, Inc., 686 F.2d 793, 796 (9th Cir. 1982).

Although the initial inquiry in a discrimination case usually focuses on whether petitioner has established a prima facie case, following this order of analysis is unnecessary when the agency has articulated a legitimate, nondiscriminatory reason for its actions. See Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In such cases, the inquiry shifts from whether petitioner has established a prima facie case to whether he has demonstrated by a preponderance of the evidence that the agency's reason for its actions merely was a pretext for discrimination. Id.; see also United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-17 (1983).

The agency articulated legitimate, nondiscriminatory reasons for petitioner's removal, i.e., petitioner threatened to inflict bodily injury on his supervisor and engaged in disruptive conduct.

Having reviewed the record in its entirety, the Commission finds that the evidence was insufficient to establish pretext. In this regard, the Commission notes that the DO credibly denied that he considered petitioner's prior EEO activity in taking the adverse action. In addition, petitioner presented no reason or explanation as to why the DO would retaliate against him.

Contrary to petitioner's contention, the Commission finds that the weight of the evidence supports the MSPB's conclusions regarding petitioner's discrimination claims. Consequently, the Commission concurs with the MSPB's decision that the agency did not discriminate against petitioner on the bases of disability and/or reprisal when it removed him from the position of WG-2 Elevator Operator. In reaching this conclusion, the Commission notes that it considered all of petitioner's evidence and arguments presented in the petition for review, including that not directly addressed herein.

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 MSPB's finding of no discrimination.

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.

LOAD-DATE: September 4, 1997

 
Notes:

*fn1 A petition for review must be filed 30 days after the date on which the MSPB's decision becomes final. See 29 C.F.R. SEC. 1614.303 (c). In this case, the MSPB's decision became final on August 14, 1996. Consequently, the petition for review should have been filed no later than Friday, September 13, 1996. Petitioner filed his petition with this Commission on Monday, September 16, 1996. In her October 18, 1996 letter, petitioner's Counsel states that on September 13, 1996, she was absent from her office due to medical reasons, i.e., she was seen by a physician for "severe nausea and vertigo." Under the circumstances, the Commission finds sufficient justification for extending the filing period.

*fn2 At the hearing, the NIH Neurologist testified that "episodic dyscontrol" is a psychiatric rather than neuralgic diagnosis. He stated that it is not well-defined because the criteria for making a diagnosis are not well established. He further stated that there are arguments in the psychiatric literature as to whether such a disorder actually exists.

*fn3 In an accompanying letter, the DO indicated that the agency would be unable to accommodate any future similar misconduct because of its adverse impact on the organization's mission. In this regard, he noted that "the Clinical Center is a research hospital into which severely ill patients and their families come from all over the world to seek medical treatment." The DO also noted that petitioner's behavior had created "a serious morale problem" because many agency employees had felt threatened by him.

*fn4 The medical records indicated that petitioner's MRI was normal.

*fn5 In its response to petitioner's petition for review, the agency indicated that in the Order, the EEOC AJ had advised petitioner that he could reinstate his complaint if the MSPB did not address his allegations.

*fn6 An agency may hold an employee who is an alcoholic to the same standards of conduct as other employees and no longer is required to provide a firm choice as a reasonable accommodation before imposing discipline for misconduct even when the misconduct is related to the employee's alcoholism. Johnson v. Dep't of the Interior, EEOC Petition No. 03940100 (March 28, 1996).