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August 10, 2005.


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") ¶ 2.)*fn1 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 follows:
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 time.
  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 letter stated:
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 discrimination.

  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 ...

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