Marino v. US Postal Service

Opinion

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                                [Not for Publication]
                                [Not for Publication]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