
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          May 27, 1994                                [Not for Publication]                                [Not for Publication]                            United States Court of Appeals                            United States Court of Appeals                                For the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
