UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHARLIE V. TAN,
Plaintiff-Appellant,

v.                                                                     No. 95-1366

MARVIN T. RUNYON, JR.,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
W. Curtis Sewell, Magistrate Judge.
(CA-94-610-A)

Argued: May 9, 1996

Decided: July 1, 1996

Before RUSSELL, ERVIN, and WILKINS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Herman McCoy Sawyer, Jr., Arlington, Virginia, for
Appellant. Lori Joan Dym, Appellate Division, UNITED STATES
POSTAL SERVICE, Washington, D.C., for Appellee. ON BRIEF:
Helen F. Fahey, United States Attorney, Paula Pugh Newett, Assistant
United States Attorney, Alexandria, Virginia; R. Andrew German,
Chief Counsel, Appellate Division, UNITED STATES POSTAL
SERVICE, Washington, D.C., for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Charlie Tan appeals the district court's dismissal of his case, with
prejudice, against Marvin T. Runyon, Postmaster General, for the
United States Postal Service (the "Postal Service"). Tan filed suit
under the Rehabilitation Act of 1973, as amended , 29 U.S.C. §§ 701-
797b, claiming that the Postal Service wrongly disqualified him from
employment because of a mental disability, Tan's low I.Q.* After Tan
presented his case at trial, the district court dismissed it with prejudice
pursuant to Rule 52(c) of the Federal Rules of Civil Procedure on the
grounds that the Postal Service's failure to know of Tan's disability
abrogated Tan from establishing a prima facie case of discrimination
based on disability. Tan contends that the district court's finding that
the Postal Service was not on notice of his disability is clearly errone-
ous. We disagree with Tan's argument and affirm the district court's
decision.

I.

Tan, a 27 year old, South Vietnamese immigrant living in the
United States since 1979, attempted to take the Postal Service's writ-
ten exam several times since 1987. In 1990 he passed the exam and
was called to interview on February 11, 1993.
_________________________________________________________________

*Tan also alleged that the Postmaster General had sexually discrimi-
nated against him in violation of Title VII of the Civil Rights Act of
1964, by failing to hire him. The district court dismissed this claim
because Tan failed to present any evidence that any person, male or
female, who falsified their employment application, was treated differ-
ently than the way in which Tan was treated. Tan does not appeal this
finding.

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As part of the interview process, Tan completed some application
materials beforehand and submitted them upon his arrival at the inter-
view. In addition to these preliminary forms, Tan received other
forms at the interview. He completed the "Applicant Drug Testing
Consent and Release," which instructed each applicant to "carefully
read the following information before complet[ing] and sign[ing]
th[e] form," and notified Tan that "participation in the drug screening
test [wa]s mandatory to determine [an applicant's] qualifications and
suitability for USPS employment." Tan signed the form, agreeing to
provide the required urine sample.

Tan also received a "Drug Screening Personnel Notification Form."
Boxes at the form's bottom were clearly marked:"to be completed by
medical unit and returned to requesting official." Instead of the
attending medical officer checking the appropriate box indicating
whether or not Tan should be disqualified for providing a positive
urine sample, Tan checked the box indicating he"was qualified for
employment consideration" without having submitted a urine sample,
and returned the form to the personnel office. Upon discovering the
error in Tan's form, the personnel office promptly disqualified Tan
from further consideration for employment and asked him to leave the
premises. Tan's sister, who had accompanied Tan to the interview,
tried to dissuade the Senior Personnel Specialist from disqualifying
Tan from the interview process. She told the Senior Personnel Spe-
cialist that "[her brother] was a very slow learner, and he must have
been confused, and his English was not great. . . ." The Senior Spe-
cialist was unconvinced; Tan had falsified his application.

Tan received a letter one week later, explaining why he had
become ineligible for employment. The letter read:

          Postal employment procedures require that the employment
          process end upon a failure to appear as scheduled for urinal-
          ysis screening. In addition, when such failures occur, the
          applicant's eligibility is ended on all registers on which that
          applicant has achieved eligibility. You were advised in writ-
          ing in advance of these requirements, and the consequences
          of a failure to report for the screening. You chose to not sub-
          mit to the screening and accordingly, your name has been

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          removed from further consideration for employment with
          the Postal Service.

The letter further advised that Tan could write to the Personnel Office
if he believed that the decision was erroneous.

Tan and his sister wrote the Postal Service's Human Resources
Manager. They explained the sequence of events at the interview and
reasserted Tan's slow mental capacity. The Human Resources Man-
ager found no compelling reason to overturn the decision made by the
Personnel Services unit on the grounds that Tan's actions were
improper and contrary to the "clear and unambiguous" urinalysis
screening instructions that had been provided.

Tan sought informal Equal Employment Opportunity counseling
with the Postal Service in May of 1993 and filed a formal complaint
alleging discrimination based on sex and on mental disability. The
EEO Agency dismissed Tan's complaint for untimely counselor con-
tact. And the EEOC affirmed the Agency's decision that Tan failed
to present adequate justification for waiting until May 10, 1993, to
contact an EEO counselor.

On May 10, 1994, Tan filed his action in United States District
Court. Both Tan and his sister testified at trial. On cross-examination,
Tan admitted that at no time during the application process on Febru-
ary 11, 1993, did he advise the Postal Service that he possessed a
mental disability.

The Postal Service moved for judgement pursuant to Fed. R. Civ.
P. 52(b). The district court dismissed the discrimination claims
because Tan failed to establish a prima facie case of discrimination
based upon either his sex or his mental disability. On the issue of
Tan's alleged mental disability, the district court found that the Postal
Service had no reason to know that Tan was mentally disabled. The
district court opined:

          [I]t is clear to the Court from the application, and through
          documents submitted by [Tan] on his employment applica-
          tion process, that [Tan] demonstrated cognitive ability to

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          read and respond to questions, and the Court finds as a fact
          that the Postmaster General had no knowledge of any
          alleged disability at the time of the alleged discrimination on
          the 11th of February of 1993.

This appeal followed.

II.

Tan urges that we reverse and remand his case for trial on its merits
because he believes the district court clearly erred by finding as a
matter of fact that the Postal Service had no knowledge of Tan's dis-
ability. We will not disturb the district court's findings of fact unless
clearly erroneous. Fed. R. Civ. P. 52(a); Carter v. Ball, 33 F.3d 450,
457 (4th Cir. 1994). The purpose of the Rehabilitation Act of 1973
(the "Act"), 29 U.S.C. §§ 701 et seq., is to promote and expand
employment opportunities in the public and private sectors for dis-
abled individuals. The Act prohibits discrimination on the basis of
mental and physical disabilities. 29 U.S.C. § 701. It requires employ-
ers to reasonably accommodate the known physical or mental limita-
tions of a qualified disabled applicant or employee, unless the agency
can demonstrate that the accommodation would impose an undue
hardship on the operation of its program. 29 C.F.R.§ 1614.203(c). To
establish a prima facie claim of disability discrimination under the
Act, Tan must demonstrate that he has a disability; that he is other-
wise qualified for the position; and that his application was disquali-
fied because of his disability. 29 C.F.R. § 1613.702 (1994); see also
School Bd. of Nassau County v. Arline, 480 U.S. 273 (1987); Huber
v. Howard County Md, 849 F. Supp. 407, 411 (D. Md. 1994) (citing
Walders v. Garrett, 765 F. Supp. 303, 308 (E.D. Va. 1991), aff'd, 956
F.2d 1163 (4th Cir. 1992)). The critical requirement is that the
employer knew of the disability at the time of the alleged discrimina-
tion. Williams v. Casey, 691 F. Supp. 760, 767 (S.D.N.Y. 1988).

In the instant case, the district court found that Tan failed to present
evidence that he was in fact disqualified because of his alleged dis-
ability. To prove that he was disqualified because of a disability, Tan
had to show that his potential employer knew of his disability at the
time he was disqualified from employment, not that his potential
employer should have known of his disability. An employer must

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know about the existing specific disability before it can be liable for
failing to accommodate the disabled person's needs. 29 C.F.R.
§ 1614.203 (c). Unless the Postal Service knew of Tan's alleged dis-
ability, there can be no cause of action. Tan, himself, testified at trial
that at no time during the application process did he advise the Postal
Service that he possessed a mental disability. Nonetheless, Tan asserts
that his sister's statements to the Senior Personnel Specialist were
made contemporaneously with his disqualification, therefore, placing
the Postal Service on notice of his alleged disability. The evidence of
record demonstrates, however, that Tan is indulging in a revisionist's
accounting of events. Tan falsified his employment application and
the personnel office disqualified him before his sister indicated that
"he was slow." Furthermore, we are hardpressed to equate a statement
of one's being slow with an affirmative statement that one possesses
a disability. We, therefore, reject Tan's "contemporaneous" notice
argument. A finding of discrimination cannot be predicated on infor-
mation the employer did not possess when it made its decision.
Treadwell v. Alexander, 707 F.2d 473, 477 (11th Cir. 1983).

The district court's finding that the Postal Service was not on
notice of Tan's alleged disability when it disqualified him for falsify-
ing his application, was not clearly erroneous. Hence, we affirm the
district court's dismissal of Tan's case.

III.

For the foregoing reasons, the decision of the district court is

AFFIRMED.

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