                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-4-2007

Sever v. Postmaster General
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4538




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"Sever v. Postmaster General" (2007). 2007 Decisions. Paper 1356.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1356


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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 05-4538


                                 RAYMOND SEVER,
                                            Appellant

                                           v.

                       POSTMASTER GENERAL WILLIAM J.
                  HENDERSON; ROBERT SPAULDING, Postmaster or
                   OIC; JEFF RUTH, Post Office Operations Manager


                   On Appeal From the United States District Court
                       For the Middle District of Pennsylvania
                              (D.C. Civ. No. 00-cv-01271)
                    District Judge: Honorable Thomas I. Vanaskie


                      Submitted Under Third Circuit LAR 34.1(a)
                                 November 13, 2006

           BEFORE: BARRY, CHAGARES and ROTH, CIRCUIT JUDGES

                                (Filed: April 4, 2007)


                                      OPINION



PER CURIAM

      Raymond Sever appeals the order of the United States District Court for the

Middle District of Pennsylvania granting summary judgment in favor of the Postmaster
General. We will affirm the District Court’s order.

                                             I.

       Sever began working for the United States Postal Service in 1980. On March 14,

1994, he received a letter from Honesdale Postmaster Robert Spaulding citing his failure

to follow instructions and his “willful delay of accountable mail,” and warning him that

future deficiencies might result in suspension, reduction in pay or grade, or removal.

According to Sever’s fellow employee, David Rollison, approximately one hour after

receiving the warning letter, Sever discussed the matter with Rollison, and Sever said that

if he were dismissed from the Postal Service, he would “buy a gun and come back.”

Sever contends that he never said this.

       On March 15, 1994, Sever held his hand in the shape of a gun, and several times

pointed his finger toward Spaulding and/or another supervisor, Edward DeGroat. While

making these gestures, Sever made noises as if firing a gun. While Sever admits to

gesturing, he disputes the number of times and contends that he never said “pow pow.”

That same day, Sever was placed on “off duty, without pay” status because of the

gestures. DeGroat says that, before Sever left the facility, Sever told DeGroat that this

was the first time in his life he felt that he could hurt someone. On March 24, 1994,

Sever and his attorney met with Spaulding. At the meeting, Sever’s lawyer informed

Spaulding of Sever’s treating psychiatrist’s “initial findings of Post-Traumatic Stress

symptoms,” and asked that no adverse employment decision be made until the

psychiatrist could further evaluate Sever’s condition. Sever requested that his position be

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held open until medical evaluation was complete, and offered to make the doctor’s

findings and reports available to postal management. It is unclear if the defendants ever

received the medical reports.

       On April 4, 1994, the Postal Service issued a letter terminating Sever, citing

Sever’s gestures and statements referencing violence as the reason.1 At his deposition,

Spaulding testified that he was solely responsible for the decision to fire Sever, and that

he was not aware that Sever labored under any mental disability at the time that he fired

him. After Sever was fired, he unsuccessfully pursued a discrimination complaint with

the EEOC, and was advised of his right to file a civil action. On July 17, 2000, Sever

brought suit pursuant to the Rehabilitation Act, 29 U.S.C. § 701 et seq., alleging

employment discrimination due to his disability. The District Court denied the

defendants’ initial motion for summary judgment, which argued failure to exhaust

administrative remedies, and the parties engaged in limited discovery. Both Sever and the

defendants filed motions for summary judgment.

       In supporting his motion for summary judgment, and opposing the defense motion,

Sever relied upon two affidavits by a Dr. Boriosi, one given more than seven years and

the other more than ten years after Sever was fired. Dr. Boriosi indicates that it was his

“initial” view that Sever had symptoms “similar to post traumatic stress disorder.” Then,



   1
      For these same actions, Sever was convicted in the Middle District of Pennsylvania
of influencing, impeding, or retaliating against a federal officer by threatening, in
violation of 18 U.S.C. § 115.

                                              3
his further observation and analysis led him to diagnose Sever with obsessive compulsive

disorder (OCD). Although the time frame of Boriosi’s conclusions is uncertain, it is clear

that Sever was not under Boriosi’s care until after the gesturing incident took place. The

defendants contend that these statements by Dr. Boriosi relate only how Sever’s condition

affected him at the time of Boriosi’s affidavits (in 2001 and 2004), and that Boriosi did

not give any opinion at all as to Sever’s condition during the time leading up to his

termination. Sever contends that Boriosi opines that Sever was suffering from OCD at

the time of his removal.

       The District Court granted the defendants’ motion for summary judgment and

denied Sever’s motion. Sever now appeals.

                                             II.

       This Court has jurisdiction under 28 U.S.C. § 1291, and we exercise plenary

review over the decision to grant summary judgment. See Torres v. Fauver, 292 F.3d

141, 145 (3d Cir. 2002). We must determine whether the record, when viewed in the

light most favorable to Sever, shows that there is no genuine issue of material fact and

that the Postmaster General was entitled to judgment as a matter of law. See id.; Fed. R.

Civ. P. 56.

       The Rehabilitation Act of 1973 applies only to federal employers and employers

who receive federal funding, and prohibits discrimination against persons with disabilities

in matters of hiring, placement, or advancement. See Shiring v. Runyon, 90 F.3d 827,

830-31 (3d Cir. 1996). Claims of employment discrimination in violation of the

                                             4
Rehabilitation Act are governed by the standards of the Americans with Disabilities Act.

See 29 U.S.C. § 794(d); Shiring, 90 F.3d at 831-32. In order to establish a prima facie

case of employment discrimination, an employee must demonstrate that he or she, (1) has

a disability, (2) is otherwise qualified to perform the essential functions of the job, and (3)

has suffered an adverse employment action because of his or her disability. See Shiring,

90 F.3d at 831. Under the ADA, a “disability” is defined as: (A) a physical or mental

impairment that substantially limits one or more of the major life activities of an

individual, (B) a record of such impairment, or (C) being regarded as having such an

impairment. See 42 U.S.C. § 12102(2). If the employee makes out a prima facie case of

discrimination, the employer may prevail by demonstrating a legitimate, non-

discriminatory reason for the adverse action. See Salley v. Circuit City Stores, Inc., 160

F.3d 977, 981 (3d Cir. 1998).

       In granting the defendants’ motion for summary judgment, the District Court

concluded that (1) Sever failed to present evidence that his alleged mental disorder

substantially limited any major life activity at the time he was fired, (2) Sever failed to

show that the defendants knew or had reason to know that he was substantially limited in

a major life activity at the time they determined that he should be fired for his threatening

conduct, and (3) the defendants did not violate the Rehabilitation Act by firing Sever for

misconduct. Because the District Court’s third conclusion is sufficient to support

summary judgment in favor of the Postmaster General, we need not reach the question of

whether Sever has shown sufficient evidence that he was disabled at the time of the

                                               5
alleged act of discrimination.

       Even if Sever has established a prima facie case of discrimination, the Postmaster

General proffered a legitimate, non-discriminatory reason for removing him from his

position. The Postmaster General’s evidence shows that Sever was terminated because of

his inappropriate workplace behavior, specifically, the threats of violence made against

his co-workers. This misconduct was severe enough to result in a criminal conviction for

threatening a federal officer. Because Sever fails to present any evidence from which a

fact finder could reasonably conclude that the stated reasons for his firing are pretextual,

the District Court properly granted summary judgment in favor of the Postmaster General.

See Salley, 160 F.3d at 981.

       Moreover, even assuming that Sever suffers from a disability, his employer may

nevertheless hold him to certain “qualification standards,” including the requirement that

an individual not pose a direct threat to the health or safety of other individuals in the

workplace. See 42 U.S.C. § 12113(b). Though an employer is prohibited from

discharging an employee based on his disability, the employer is not prohibited from

discharging an employee for misconduct, even if that misconduct is related to his

disability. See Jones v. American Postal Workers Union, 192 F.3d 417, 429 (4th Cir.

1999) (ADA was not violated when Postal Service discharged employee suffering from

schizophrenia and post traumatic stress syndrome who threatened to kill a co-worker);

Fullman v. Henderson, 146 F. Supp. 2d 688, 699 (E.D. Pa. 2001) (even assuming

employee disability, ADA was not violated when employee was discharged for filing a

                                               6
false workers’ compensation claim), aff’d, 29 Fed. Appx. 100 (3d Cir. 2002) (table).

Accordingly, the defendants did not commit unlawful discrimination by terminating Sever

for his misconduct.

      Therefore, we will affirm the judgment of the District Court.




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