The opinion of the court was delivered by: THOMAS VANASKIE, Chief Judge, District
This case arises in the wake of the termination of Plaintiff's
employment by the United States Postal Service after several
co-workers claimed that he had threatened a supervisor and
observed Plaintiff mimicking the action of firing a handgun at
his supervisor. At issue on motions for summary judgment filed by
pro se Plaintiff Raymond Sever and the Defendants is whether
there is sufficient evidence to warrant a trial on Plaintiff's
disability discrimination claim brought under the Rehabilitation
Act, 29 U.S.C. § 791 et seq. Defendants' motion will be
granted and judgment will be entered in their favor for three
reasons: first, Plaintiff has failed to present any evidence that
his alleged mental disorder, which purportedly caused him to
engage in the threatening conduct (for which he was successfully
prosecuted under 18 U.S.C. § 115), substantially limited any
major life activity at the time that he was fired; second,
Plaintiff has not shown that Defendants Robert Spaulding and Jeff
Ruth knew or had reason to know that Plaintiff was substantially limited in a major life activity at
the time they determined that Plaintiff should be fired for his
threatening conduct; and third, an employer does not violate the
Rehabilitation Act by firing an employee for conduct that
threatens the life of co-workers, even if that conduct was the
product of a mental disorder.
Mr. Sever began working for the United States Postal Service on
May 31, 1980. (Defs' Statement of Material Facts ("SMF") ¶
On March 14, 1994, he received a warning letter from
Honesdale Postmaster Robert Spaulding for the failure to follow
instructions on four separate occasions and for the willful delay
of accountable mail. The specific charges in the letter were as
Charge 1 You are charged with failure to follow
instructions. On 1/24/94 a discussion was given to
you about close out time and the deposit was to be
dispatched every night. Again, on 02/16/94 Ed DeGroat
hah [sic] a second discussion about the deposit not
going out. On 02/25/94 registered mail was not
dispatched. [sic] as instructed. On 03/07/94 and
again on 03/08.94 [sic] the last truck was held up
because the deposit was not ready for 5:50 dispatch
Charge 2 You are charged with willfull [sic] delay
of accountable mail. On 02/25/94 three (3) registered
articles were not sent on the last dispatch truck.
Your statement was quoted as saying that two PTF
clerks refused to sign the register bag. However you
were instructed on 02/16/94 that all deposits and
registers be sent every night. (Defs' Ex. 15, Dkt. Entry 82.) After discussing the specific
incidents underlying both charges, the letter further provided:
It is hoped that this official letter of warning will
serve to impress upon you the seriousness of your
actions and that future discipline will not be
necessary. If you are having difficulties which I may
not be aware of or if you need additional assistance
or instructions for improving your performance,
please call me, or you may consult with your other
supervisor, and we will assist you where possible.
However, I must warn you that future deficiencies
will [r]esult in more severe disciplinary action
being taken against you. Such action may include
suspensions, reduction in grade and/or pay, or
removal from the Postal Service.
Approximately one hour after Mr. Sever received the warning
letter, he discussed the matter with a fellow employee, David
Rollison. (Defs' Ex. 15, p. 3.) According to Defendants, Mr.
Sever told Mr. Rollison that he would buy a gun and come back to
the post office if he were ever dismissed from the Postal
Service. (Id.) Mr. Sever contends that he never made such
a statement. (Sever Aff. ¶ 8, Dkt. Entry 88.)
On March 15, 1994, Mr. Sever formed his fingers into the shape
of a gun on several occasions and pointed his finger towards Mr.
Spaulding and/or SPO, Ed DeGroat. (Defs' Ex. 15, p. 3.) He also
made a noise as if firing a gun. (Id.) Mr. Sever contends that
he only made two "finger points" and that he never said "pow."
(Sever Aff. ¶¶ 6-7, Dkt. Entry 88.)
On March 15, 1994, Mr. Spaulding placed Mr. Sever on "off-duty
without pay status" because of Mr. Sever's threatening gestures.
(Defs' Ex. 15, p. 2.) On March 24, 1994, Mr. Sever and his attorney attended a labor management meeting with
Mr. Spaulding and Jonathan Lister, a labor relations specialist
manager. (Sever Aff. ¶ 2, Dkt. Entry 88; Spaulding Dep. at 16-17,
Dkt. Entry 81.) At the meeting, Mr. Sever and his attorney
informed Mr. Spaulding and Mr. Lister of Plaintiff's treating
psychiatrist's "initial findings of Post-Traumatic Stress
symptoms." (Sever Aff. ¶ 3, Dkt. Entry 88.) Mr. Sever's attorney
requested that no adverse decision be made until his treating
physician could further evaluate "his medical or psychological
status or his condition." (Spaulding Dep. at 19.)*fn2 Mr.
Sever then made a written request to Mr. Lister to hold his
position open until his doctor could complete his evaluation.
(Sever Aff. ¶ 4, Dkt. Entry 88.) He further offered to make his
doctor's findings and reports available to postal management at
the earliest possible date. (Id. ¶ 5.) The record does not state when, if ever, Defendants received the medical reports.
On March 31, 1994, the Grand Jury for this District returned an
indictment against Mr. Sever, charging him with violating
18 U.S.C. § 115, Influencing, Impeding or Retaliating Against a
Federal Official by Threatening. The indictment was premised upon
the accusation that Sever had mimicked the action of pointing a
gun at a supervisor and pulling the trigger.*fn3
By letter dated April 4, 1994, Sever was fired. The termination
You are hereby notified you will be removed from the
U.S. Postal Service on May 13, 1994. The reasons for
this action are as follows:
Charge 1: On March 14, 1994 . . . you were issued a
Letter of Warning by the Officer in Charge.
Approximately one hour later, you discussed this
Letter of Warning with fellow employee, D. Rollison.
You told him if you were ever dismissed from the
Postal Service you would go out and buy a gun and
come back to the post office. On the morning of March
15, 1994, you were observed on several instances
forming your fingers into the shape of a gun, aiming
at Officer-in-Charge, Robert Spaulding and/or SPO, Ed
DeGroat, and making a noise as if firing a gun. As a
result of your actions, you were placed in emergency
off-duty status. Prior to leaving the facility, you
indicated to SPO DeGroat that this was the first time
in your life you thought you could hurt someone.
(Defs' Ex. 15, p. 3, Dkt. Entry 82.) The letter was signed by
Defendants Spaulding and Jeff Ruth, the Manager of Operations for
the Post Office. Mr. Spaulding testified at his deposition that it was solely
his decision to terminate Mr. Sever. (Spaulding Dep. at 98, Defs'
Ex. 17, Dkt. Entry 82.) He further testified that he was not
aware that Plaintiff labored under any mental disability at the
time he decided to terminate Mr. Sever. (Id. at 98-99.) Mr.
Ruth testified that "there was nothing that would lead [him] to
believe that . . . [Mr.] Sever had any type of handicap, mentally
[or] physically. . . ." (Ruth Dep. at 58, Dkt. Entry 81.) Mr.
Ruth further testified that he did not take any employment action
against Mr. Sever because of a mental disability. (Id. at 75.)
After Defendants terminated Mr. Sever, he filed a formal
complaint with the EEOC alleging, not disability discrimination,
but gender discrimination. (Defs' SMF ¶ 12.) An Administrative
Judge granted an Agency request for recommended findings and
conclusions of law without a hearing. (Id. ¶ 13.) The Postal
Service adopted the administrative judge's findings and
conclusions of law and issued its final agency decision. (Id. ¶
14.) Mr. Sever appealed the final agency decision to the EEOC
Office of Federal Operations ("OFO"). (Id. ¶ 15.) The OFO
affirmed the Postal Service's final decision. (Id. ¶ 16.) Mr.
Sever requested reconsideration of the OFO decision, which was
denied. (Id. ¶ 17.) The OFO advised Mr. Sever of his right to
file a civil action. (Id.) On July 17, 2000, Mr. Sever
commenced this action under the Rehabilitation Act. (Id. ¶ 18.)
On March 20, 2001, Defendants moved for summary judgment,
arguing that Mr. Sever failed to exhaust his administrative
remedies as to his disability discrimination claim. By Memorandum Opinion dated April 22, 2002, Defendants' motion for
summary judgment was denied because an affidavit from Plaintiff's
treating psychiatrist, Guido Boriosi, M.D., sufficed to raise a
genuine dispute of fact material to the application of the
doctrine of equitable tolling. Specifically, there was a question
as to whether Plaintiff's mental health disorder impaired his
ability to timely pursue an administrative claim of disability
Following a telephone conference on May 24, 2002, this Court
issued an order providing for a ninety day period of discovery
limited to (1) whether Mr. Sever was disabled under the
Rehabilitation Act; and (2) whether Defendants knew about the
alleged disability. By Order dated September 13, 2002, litigation
in this matter was stayed while Plaintiff considered whether to
continue to pursue the action. At Plaintiff's request, the stay
was lifted on February 6, 2003, and the discovery period on the
questions of disability and Defendants' knowledge thereof was
re-opened for a period of 90 days. After several extensions of
the discovery period and resolution of discovery disputes, Mr.
Sever and Defendants filed motions for summary judgment.
In moving for summary judgment and opposing the defense motion,
Plaintiff has relied extensively on two affidavits signed by Dr.
Boriosi, the first dated May 25, 2001 and submitted in opposition
to Defendants' first summary judgment motion, and the second
dated May 13, 2004. Dr. Boriosi's first affidavit indicates that
he initially observed symptoms of post-traumatic stress disorder.
(Boriosi Aff. of 5/25/01 at at 4.) Dr. Boriosi opined that the
written warning charging Sever with intentionally delaying the U.S. mail was
particularly stressful for Mr. Sever because the charge had
criminal implications. (Id. at 3.) Dr. Boriosi further opined
that the stress caused Mr. Sever to react spontaneously by
pointing his finger in what postal officials "allegedly" viewed
as a threat. (Id.)
Dr. Boriosi stated that his continuing observations of Sever
resulted in a diagnosis of obsessive compulsive disorder ("OCD").
(Id. at 4.) It is unclear when Dr. Boriosi arrived at this
conclusion. According to Dr. Boriosi, OCD causes an individual to
have intrusive thoughts of a frightening or disturbing nature
which in turn may cause the person to do things repeatedly. Dr.
Boriosi related how the OCD impacted Mr. Sever as of the time of
his affidavits (2001 and 2004). He did not, however, express ...