USCA1 Opinion
May 27, 1994
[Not for Publication]
[Not for Publication]
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
____________________
No. 93-1958
WILLIAM MARINO,
Plaintiff, Appellant,
v.
UNITED STATES POSTAL SERVICE, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
___________________
____________________
Before
Selya, Boudin and Stahl,
Circuit Judges.
______________
____________________
Cornelius J. Sullivan with whom Brenda E.W. Sullivan and Sullivan
_____________________ ____________________ ________
& Walsh were on brief for appellant.
_______
Robert V. Zener, Appellate Staff, Civil Division, with whom Frank
_______________ _____
W. Hunger, Assistant Attorney General, Donald K. Stern, United States
_________ ________________
Attorney, and Edward T. Swaine, Appellate Staff, Civil Division, were
________________
on brief for appellees.
____________________
____________________
STAHL, Circuit Judge. Plaintiff-appellant William
_____________
Marino, brought this action against his former employer
defendants-appellees United States Postal Service (the
"USPS") and Marvin T. Runyon, Postmaster General of the
United States of America ("Runyon"), in the district court
under section 501 of the Rehabilitation Act of 1973 ("the
Act"), 29 U.S.C. 791 et seq. His complaint alleged that
__ ____
the USPS discriminated against him, improperly discharging
him by reason of his mental illness. Marino now appeals the
district court's grant of summary judgment in favor of the
USPS and Runyon. We affirm.
I.
I.
__
FACTUAL BACKGROUND AND PRIOR PROCEEDINGS
FACTUAL BACKGROUND AND PRIOR PROCEEDINGS
________________________________________
Because this is an appeal from a grant of summary
judgment, we review the facts in the light most favorable to
the nonmovant, indulging all reasonable inferences therefrom
in the nonmovant's favor. See, e.g., Reich v. Simpson,
___ ____ _____ ________
Gumpertz and Heger, Inc., 3 F.3d 1, 2 (1st Cir. 1993).
__________________________
William Marino is a Vietnam veteran who received a 50%
service-connected disability for anxiety neurosis from the
Veterans Administration in 1973. In 1974, the USPS hired
Marino and he served the majority of the next seventeen years
as a clerk at the USPS Air Mail Facility at Boston,
Massachusetts' Logan Airport. Throughout this period, Marino
was under the care of mental health professionals at the
-2-
2
Veterans Administration and at various private facilities.
In addition, Marino submitted to and passed three "fitness
for duty" examinations at the USPS. In 1983, a
recommendation was made that whenever Marino felt stressed,
he be permitted to leave his work station and scream in the
men's room until his stress was relieved. Marino never
availed himself of this outlet.
In April 1990, USPS Supervisor Wilfred Lessard was
assigned to the area where Marino worked. On July 3, 1990,
Lessard gave Marino a series of direct work orders, which
Marino ignored. Lessard noticed that Marino appeared to be
mumbling and wandering away. Marino asked to see a union
steward with whom he spoke. Marino then presented Lessard
with a medical form upon which he had written, "Diress [sic]
again still!!!" Lessard signed the form, which permitted
Marino to go to the USPS's medical unit. Marino spent
approximately ninety minutes in the medical unit before
leaving for the day.
Lessard and Marino had another run-in just six days
later. On July 9, 1990, Lessard came upon Marino and three
other USPS workers who were sitting at a break table in what
is referred to as the CAB sunset area. Lessard asked the
employees to return to their stations and begin to process
the mail. Marino complied by returning to the computer
station where he unplugged the computer control board and
-3-
3
began to clean the board and console. After several minutes,
Lessard asked Marino if he was finished. Marino said, "No."
Lessard replaced Marino with Carol Nappi who began to process
the mail at the computer. Lessard then assigned Marino a
variety of tasks which Marino refused to perform. Instead,
Marino sat down at the break table and began, as he later
described it, to "phase out" and mumble. When asked by
Lessard whether he understood his orders, Marino did not
respond. Lessard told Marino that if he did not return to
work that Lessard would "take him off the clock" and send him
home. Marino again did not respond. Lessard repeated his
order. Faced with Marino's silence, Lessard told Marino he
was off the clock and ordered Marino to leave the premises.
Marino later testified that at this point he was "going off
to a different state of mind altogether. I didn't have any
control at that point."
Although Marino claims that he has no memory of
what happened next, he does not dispute that he slammed his
fist on the table, rose and charged Lessard, punching him in
the face and head several times until USPS Supervisor Joseph
Flammia came to Lessard's assistance. At this time, Marino
left the facility. Hours after the altercation, Marino
sought psychiatric counselling at the Veterans Administration
Hospital in Bedford, Massachusetts, where he saw Dr. Hugh
Smith for the first time in the emergency walk-in clinic. In
-4-
4
the meantime, Lessard was sent to Winthrop Hospital for
treatment of his injuries, returning to work one week later.
On September 14, 1990, Marino was terminated from
his position with the USPS. He was officially removed for
assaulting a supervisor in violation of the USPS rules and
regulations1 and for posing a safety hazard to other
employees.
Marino filed an EEOC complaint after the assault
and before his removal, and then he exercised his right to a
hearing before the Merit Systems Protection Board ("MSPB").
In December 1991, the MSPB affirmed the removal, finding,
inter alia, that Marino had failed to make out a prima facie
_____ ____
case of discrimination under the Rehabilitation Act of 1973
as amended, 29 U.S.C. 702, et seq. Marino subsequently
__ ____
____________________
1. USPS claimed that Marino violated the following rules and
regulations: Employee and Labor Relations Manual 661.51 -
Unacceptable Conduct (no employee will engage in criminal,
dishonest, notoriously disgraceful or immoral conduct, or
other conduct prejudicial to the Postal Service); 666.1 -
Discharge of Duties (employees are expected to discharge
their assigned duties); 666.2 - Behavior and Personal
Habits (employees are expected to conduct themselves during
and outside of working hours in a manner that reflects
favorably on the Postal Service and are expected to maintain
satisfactory personal habits so as not to be obnoxious or
offensive to other persons or the create unpleasant working
conditions); 666.51 - Protests (employees must obey the
instructions of their supervisors; and if the employee has
reason to question the propriety of the instruction, he must
first obey the order and then file a written protest); and
the Administrative Support Manual 224.12 - Assault
(physical assault of a postal employee engaged in the
performance of official duties can result in prosecution and
may be the basis for disciplinary action).
-5-
5
filed this action in the United States District Court for the
District of Massachusetts alleging handicap discrimination in
violation of the Rehabilitation Act. On April 26, 1993, the
USPS and Runyon filed motions to dismiss and for summary
judgment. In a Memorandum and Order dated June 29, 1993, the
district court granted their motion for summary judgment
finding that Marino had failed to make a prima facie showing
of handicap discrimination. It is from this ruling that
Marino now appeals.
II.
II.
___
STANDARD OF REVIEW
STANDARD OF REVIEW
__________________
As always, we review motions for summary judgment
de novo. We read the record indulging all inferences in a
__ ____
light most favorable to the nonmovant. Alan Corp. v.
___________
International Surplus Lines Ins. Co., No. 93-1697, slip op.
_____________________________________
at 6 (1st Cir. Apr. 22, 1994). Summary judgment is
appropriate only when a review of the record discloses that
there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c). Finally, on appeal, we are not bound
by the finding of the district court, but rather may "affirm
a district court's ruling `on any ground supported in the
record even if the issue was not pleaded, tried or otherwise
referred to in the proceeding below.'" Levy v. FDIC, 7 F.3d
____ ____
1054, 1056 (1st Cir. 1993) (quoting De Casenave v. United
___________ ______
-6-
6
States, 991 F.2d 11, 12 n.2 (1st Cir. 1993) (citations
______
omitted)).
III.
III.
____
DISCUSSION
DISCUSSION
__________
Marino, in his complaint, charged that the "action
by Supervisor Lessard on July 3, 1990, and again on July 9,
1990, was either part of a concerted action by management to
provoke an employee whom management knew suffered from a
nervous condition and did not handle stress well or presented
management with an opportunity to remove the plaintiff
because of the inexperience of Supervisor Lessard" and in
violation of the Rehabilitation Act. USPS and Runyon argued
in their motion for summary judgment that Marino did not
present sufficient facts to support a prima facie case of
handicap discrimination. Under the Rehabilitation Act,
the claimant bears the burden of proving each element of
his/her claim. See Cook v. State of Rhode Island, 10 F.3d
___ ____ ______________________
17, 22 (1st Cir. 1993). In order to establish a prima facie
case of handicap discrimination against a federal agency
under 501 of the Rehabilitation Act, the plaintiff must
prove: (1) that s/he was a handicapped person within the
meaning of the Act; (2) that s/he was an otherwise qualified
handicapped person; and (3) that s/he was excluded or
terminated from the position s/he sought solely by reason of
-7-
7
her/his handicap. 29 U.S.C. 794(a);2 Russell v. Frank, 59
_______ _____
Fair Empl. Prac. Cas. (BNA) 1585 (1991).
We assume, without deciding, that Marino has met
prongs (1) and (3) of the prima facie case, and focus our
attention on whether Marino has shown that he is otherwise
qualified to perform the essential functions of his job.
Federal regulations define a "qualified handicapped
person" as one who, "with or without reasonable
accommodation, can perform the essential function of the
position in question without endangering the health and
_______ ___________ ___ ______ ___
safety of the individual or others." 29 C.F.R. 1613.702
______ __ ___ __________ __ ______
(1993) (emphasis supplied). The record shows that Marino is
not such a "qualified person." In sum, we agree with the
findings of the administrative judge who reviewed this case
for the MSPB. She concluded that:
An agency must be able to give its
employees instructions and expect them to
comply without putting the supervisor at
physical risk. In the appellant's
____________________
2. Section 504 of the Rehabilitation Act provides in
relevant part that:
No otherwise qualified individual with
handicaps in the United States . . .
shall, solely by reason of her or his
handicap, be excluded from the
participation in, be denied the benefits
of, or be subjected to discrimination
under any program or activity receiving
Federal financial assistance.
29 U.S.C. 794(a).
-8-
8
circumstances, the supervisor would have
to anticipate that the appellant was calm
and receptive to an order before giving
it. He would also have to be assured
that the appellant would agree with the
order. Otherwise, the supervisor might
be at risk. . . . Accordingly I find,
assuming arguendo, that he is a
handicapped person and that his condition
caused the misconduct, that he has failed
to establish a prima facie case because
he has not articulated a reasonable
accommodation under which he could
perform the essential duties of his
position.
Marino v. United States Postal Serv., M.S.P.B. Docket No.
______ ____________________________
BN0752910292I1, slip op. at 7 (Dec. 10, 1991). Marino
suggests as a reasonable accommodation that he be protected
from stress-producing situations at work. Such an
accommodation, however, has been deemed unreasonable as a
matter of law. See Pesterfield v. Tennessee Valley
___ ___________ _________________
Authority, 941 F.2d 437, 442 (6th Cir. 1991) ("It would be
_________
unreasonable to require that [the employer] place plaintiff
in a virtually stress-free environment and immunize him from
any criticism in order to accommodate his disability.").
As a final matter, Marino contends that the penalty
of termination was too severe and that he should be
reinstated. Although review of MSPB decisions involving non-
discrimination claims are generally the exclusive domain of
the Federal Circuit, see 5 U.S.C. 7703(b)(1), where the
___
non-discrimination claim is accompanied by an allegation of
discrimination, we have jurisdiction to review both claims,
-9-
9
see Williams v. Rice, 983 F.2d 177, 179-80 (10th Cir. 1993).
___ ________ ____
Non-discrimination claims are reviewed on the administrative
record and a MSPB finding shall be set aside only if it is
found to be arbitrary or capricious, an abuse of discretion,
obtained without procedures required by law, or unsupported
by substantial evidence. Id.; see also 5 U.S.C. 7703(c)
___ ___ ____
(1994); Diaz v. United States Postal Serv., 853 F.2d 5 (1st
____ __________________________
Cir. 1988). We need not tarry long on this argument
because all of the relevant considerations raised by Marino
on appeal were properly identified and weighed by the MSPB,
as evidenced by the following excerpt from its December 10,
1993 ruling:
Balancing the very serious nature of the
appellant's misconduct, his prior
disciplinary record of a Letter of
Warning for insubordination, his prior
problems with supervisors, the lack of
provocation for his attack and the nature
of the injuries inflicted against the
absence of any weapons, the appellant's
17 years of satisfactory service and his
medical condition of anxiety disorder and
depression, I cannot find that removal
exceeds the bounds of reasonableness.
Marino, M.S.P.B. Docket No. BN0752910292I1, slip op. at 11.
______
Moreover, we fail to see how Marino's sole authority, Quinata
_______
v. United States Postal Serv., 51 M.S.P.R. 76 (1991),
_____________________________
supports his charge that the MSPB abused its discretion in
reaching its conclusion that the USPS acted reasonably. In
Quinata, the MSPB found that the penalty of removal of a USPS
_______
employee was "overly severe" where the supervisor: (1)
-10-
10
routinely harassed the employee for months before the
incident; (2) "grab[bed] his groin and `flip[ped] off'" the
employee; (3) taunted the employee; (4) blocked the
employee's way when he attempted to leave a meeting; and (5)
participated in the physical alteration by striking and
shoving the employee. Id. at 58. None of these facts are
___
present in the case before us. Clearly the MSPB weighed all
of the relevant considerations and found the USPS penalty to
be reasonable. We have no lawful grounds on which to disturb
the MSPB's findings in this issue. 5 U.S.C. 7703(c).
V.
V.
__
CONCLUSION
CONCLUSION
__________
For the foregoing reasons, the order of the
district court granting summary judgment in favor of the USPS
and Runyon is
Affirmed.
Affirmed.
_________
-11-
11
