United States District Court, M.D. Pennsylvania
August 10, 2005.
RAYMOND A. SEVER, Plaintiff
WILLIAM J. HENDERSON, POSTMASTER GENERAL, et al., Defendants.
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
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 an
opinion as to Sever's condition in March and April of 1994, and
how that condition affected performance of major life activities.
Dr. Boriosi did opine that Mr. Sever's OCD had affected and
continues to affect his ability to sleep and concentrate.
(Boriosi Aff. of May 13, 2004 at 1.) Dr. Boriosi further stated
that Mr. Sever "at one time, did have repeated, intruding and
involuntary images of violence," but he stressed that "those
thoughts or images are, in my professional opinion, not something
he would have acted upon." (Boriosi Aff. of May 25, 2001 at 6.)
According to Dr. Boriosi, Mr. Sever's OCD also affects his
ability to learn and complete routine tasks. (Boriosi Aff. of May
13, 2004 at 2.) Dr. Boriosi found that Mr. Sever was preoccupied
with details, rules, order, and organization at the expense of
flexibility and efficiency. (Boriosi Aff. of May 25, 2001 at 6.)
Dr. Boriosi further stated that Mr. Sever's OCD "can be reasonably
controlled through medication and talk therapy, but is expected
to be a life long condition." (Boriosi Aff. of May 13, 2004 at
2.) At one point, Mr. Sever was taking medication and undergoing
talk therapy, which allowed his condition to improve
"significantly." (Boriosi Aff. of May 25, 2001 at 8.) The record
does not state when and how long Mr. Sever was taking medication
and undergoing therapy. Dr. Boriosi notes, however, that Mr.
Sever has sought treatment less frequently due to financial
As for accommodation to allow resumption of employment, Dr.
Boriosi's 2004 affidavit states:
[Mr. Sever] would function best in a position that he
has already mastered. He has demonstrated [an]
ability as a window-distribution clerk for 14 years.
His problem surfaced over the handling of registered
mail in a manner inconsistent with postal
regulations. [Mr. Sever] simply needs an
accommodation in which new directives or procedures
are given in writing to protect him from the adverse
circumstances arising from the potential loss of such
mail as a result of those procedures. Compared to the
average person, [Mr. Sever] can do his job with the
accommodation of having clearly defined duties,
standards and responsibilities. Minor deviations are
not expected to pose a problem since they have never
posed a problem for [Mr. Sever] in the past. This
accommodation would also keep [Mr. Sever] from
overreacting to the stimulus that caused him to point
(Boriosi Aff. of May 13, 2004 at 2-3.)
Defendants have not submitted any psychiatric evidence on the
summary judgment record. Instead, they maintain that Dr.
Boriosi's opinions do not suffice to create a genuine dispute of material fact on the questions of whether Plaintiff
suffered from a mental impairment that substantially limited a
major life activity at the time he was fired and whether
Defendants knew or had reason to know that he was substantially
limited in a major life activity at that time.
Summary judgment should be granted when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and . . . the moving party
is entitled to a judgment as a matter of law." FED. R. CIV. P.
56(c). A fact is "material" if proof of its existence or
nonexistence might affect the outcome of the suit under
applicable law. See Anderson v. Liberty Lobby Inc.,
477 U.S. 242, 248 (1986). "Facts that could alter the outcome are material
facts." Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 197 (3d
Cir.), cert. denied, 513 U.S. 1022 (1994). "[S]ummary judgment
will not lie if the dispute about a material fact is `genuine,'
that is, if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Anderson,
477 U.S. at 248.
Initially, the moving party must show the absence of a genuine
issue concerning any material fact. See Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). All doubts as to the
existence of a genuine issue of material fact must be resolved
against the moving party, and the entire record must be examined
in the light most favorable to the nonmoving party. See
Continental Ins. Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982).
Once the moving party has satisfied its burden, the nonmoving party, "must present
affirmative evidence in order to defeat a properly supported
motion for summary judgment." Anderson, 477 U.S. at 257. Mere
conclusory allegations or denials taken from the pleadings are
insufficient to withstand a motion for summary judgment once the
moving party has presented evidentiary materials. See Schoch
v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir.
1990). Rule 56 requires the entry of summary judgment if there
was adequate time for discovery and a party "fails to make a
showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear
the burden of proof at trial." Celotex, 477 U.S. at 322.
The elements of a claim under § 504(a) of the Rehabilitation
Act are very similar to the elements of a claim under Title I of
the Americans with Disabilities Act, 42 U.S.C. § 1211. See
Mengine v. Runyon, 114 F.3d 415, 420 n. 4 (3d Cir.
1997).*fn4 To establish a prima facie case of discrimination
under the Rehabilitation Act, a plaintiff must show: (1) that the
plaintiff has a disability; (2) that the plaintiff is otherwise
qualified to perform the essential functions of the job, with or
without reasonable accommodations by the employer; and (3) that
the plaintiff was nonetheless terminated or otherwise prevented
from performing the job. See Donahue v. Consol. Rail Corp.,
224 F.3d 226, 229 (3d Cir. 2000); Mengine, 114 F.3d at 418;
Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996). The
plaintiff must also make a prima facie showing that a reasonable accommodation is possible. See Shiring,
90 F.3d 827 at 831. If the plaintiff is able to establish a prima
facie case, the defendant then bears the burden of proving, as an
affirmative defense, that the accommodations requested by the
plaintiff are unreasonable, or would cause an undue hardship on
the employer. See id.
Under the Rehabilitation Act, a "disability" is defined as:
"(i) a physical or mental impairment that substantially limits
one or more of the major life activities of such individual; (ii)
a record of such an impairment; or (iii) being regarded as having
such an impairment." Wilson v. Pa. State Police Dep't, No. Civ.
A. 94-CV-6547, 2004 WL 875573, at *2 (E.D. Pa. Mar. 19, 2004)
(citing Sutton v. United Air Lines, 527 U.S. 471, 478 (1999)).
In the present case, Mr. Sever contends that he was disabled
under the first prong of the disability definition because his
obsessive compulsive disorder substantially limited him in the
major life activities of sleeping, concentrating, learning, and
performing routine tasks. Mr. Sever further seems to argue that
he was regarded as disabled under the third prong of the
disability definition because he informed Defendants that his
physician made initial findings of post-traumatic stress
To determine whether the plaintiff is disabled under the first
prong of the disability definition, a court must conduct a
three-step inquiry. First, the court must determine whether the
plaintiff's condition is a physical or mental impairment. Second,
the court must identify a life activity affected by the
impairment and determine whether it constitutes a "major life
activity." Finally, the court must determine whether the plaintiff's
impairment had a substantial limit on the identified major life
activity. See Bragdon v. Abbott, 524 U.S. 624, 631 (1998).
These determinations are to be made as of the time the adverse
employment action was taken. See EEOC v. Stowe-Pharr Mills,
Inc., 216 F.3d 373, 379 (4th Cir. 2000) ("the date of an adverse
employment decision is the relevant date for determining whether
a plaintiff is a `qualified individual with a disability'");
Griffith v. Wal-Mart Stores, Inc., 135 F.3d 376, 380 (6th Cir.
1998), cert. denied, 526 U.S. 1144 (1999).
The regulations define mental impairment as "[a]ny mental or
psychological disorder, such as mental retardation, organic brain
syndrome, emotional or mental illness, and specific learning
disabilities." 29 C.F.R. § 1630.2(h)(2). The term "major life
activities" refers to "functions such as caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working." 29 C.F.R. § 1630.2(i). Thus,
"major life activities" refers to activities that are of central
importance to daily life. See Toyota Motor Mfg., Kentucky,
Inc. v. Williams, 534 U.S. 184, 197 (2002).
An impairment "substantially limits" a major life activity if
the individual is
[u]nable to perform a major life activity that the
average person in the general population can perform;
or [is] significantly restricted as to the condition,
manner, or duration under which an individual can
perform a particular major life activity as compared
to the condition, manner, or duration under which the
average person in the general population can perform
that same major life activity. 29 C.F.R. § 1630.2(j); accord Toyota Motor Mfg.,
534 U.S. at 195-96. In determining whether an individual is substantially
limited in a major life activity, the regulations instruct that
the following factors should be considered: "(1) [t]he nature and
severity of the impairment; (2) [t]he duration or expected
duration of the impairment; and (3) [t]he permanent or long term
impact, or the expected permanent or long term impact of or
resulting from the impairment." 29 C.F.R. § 1630.2(j)(2). Thus,
"[i]t is insufficient for individuals attempting to prove
disability status under this test to merely submit evidence of a
medical diagnosis of an impairment." Toyota Motor Mfg.,
534 U.S. at 198. Instead, a claimant must "prove a disability by
offering evidence that the extent of the limitation [caused by
their impairment] in terms of their own experience . . . is
A court must also assess the limitation of a major life
activity in light of any corrective measures the plaintiff uses
to mitigate the impairment. See Sutton v. United Air Lines,
Inc., 527 U.S. 471, 488 (1999); Fiscus v. Wal-Mart Stores,
Inc., 385 F.3d 378, 385 (3d Cir. 2004). An issue arises as to
whether a plaintiff is substantially limited in a major life
activity if the plaintiff fails to avail himself of mitigating
measures. Although the Third Circuit has not addressed the issue,
some courts will only consider the mitigation that the plaintiff
has actually undertaken in determining whether the plaintiff is
substantially limited in a major life activity. See, e.g.,
Nawrot v. CPC Int'l, 277 F.3d 896, 904 (7th Cir. 2002) (stating
courts do not have a license to "meander in `would, could, or
should-have' land" and will "consider only the measures actually taken and consequences that actually follow"); Finical v.
Collections Unlimited, Inc., 65 F. Supp. 2d 1032, 1037-38 (D.
Ariz. 1999) (refusing to speculate on whether Plaintiff would be
disabled if Plaintiff used a hearing aid); Haworth v. Proctor &
Gamble Mfg. Co., No. Civ. A. 97-2149-EEO, 1998 WL 231062, at *6
(D. Kan. Apr. 30, 1998) (declining to take into account effects
of medications Plaintiff does not take regularly for
financial/insurance coverage reasons); see also Capizzi v.
County of Placer, 135 F. Supp. 2d 1105, 112-13 (E.D. Cal. 2001)
(holding that Plaintiff's failure to avail himself of corrective
measures reduces Plaintiff's damages award but does not defeat
the Plaintiff's disability discrimination claim). Other courts
have held that a plaintiff's failure to avail themselves of
mitigating measures defeats a disability discrimination claim.
See, e.g., Johnson v. Maynard, No. 01 Civ. 7393(AKH), 2003 WL
548754, at *4 (S.D.N.Y. Feb. 25, 2003) (finding that Plaintiff
failed to establish that she was substantially limited in a major
life activity because she failed to take available medicine that
she knew would allow her to function normally); Hooper v. Saint
Rose Parish, 205 F. Supp. 2d 926, 929 (N.D. Ill. 2002) (finding
Plaintiff failed to establish that she was disabled because she
had an opportunity to mitigate her symptoms and inexplicably did
not do so); Tangires v. Johns Hopkins Hosp.,
79 F. Supp. 2d 587, 596 (D. Md.), aff'd, 230 F.3d 1354 (4th Cir. 2000)
(finding that Plaintiff's asthma did not substantially limit any
major life activities because Plaintiff refused to comply with
her doctor's recommendations to take steroids).
In the present case, Plaintiff seems to argue that he is
substantially limited in the major life activities of sleeping, concentrating, learning, and
completing routine tasks as a result of his OCD. He relies on Dr.
Boriosi's affidavits as the factual premise for this assertion.
The shortcoming of this approach is that Dr. Boriosi does not
opine as to Mr. Sever's condition at the time of the challenged
employment action. Dr. Boriosi initially did not diagnose OCD. He
opined that Mr. Sever was suffering from post traumatic stress
symptoms induced by the disciplinary reprimands issued in March
of 1994. There is no evidence that Plaintiff was substantially
limited in any major life activity at that time.
Furthermore, Dr. Boriosi did not attribute Mr. Sever's
disciplinary problems to learning difficulties or inability to
concentrate. Instead, Dr. Boriosi stated that Sever's
obsessive-compulsive personality caused him to resist
management's perceived failure to enforce postal regulations on
handling registered mail. It was Mr. Sever's purported refusal to
allow the rules to be bent that resulted in the initial
disciplinary action. (Boriosi Aff. of May 25, 2001 at 7.) Thus,
Dr. Boriosi declares that "when faced with disciplinary action
amid strict financial accountability his obsessive-compulsive
personality (a good trait) elevated to the level of the
disorder. . . ." (Id.) Dr. Boriosi concluded that "the pressure
associated with [Sever's] situation at the postal service
caused his condition and it subsequently gained strength to
seriously interfere with his normal life functioning." (Id. at
8.) Notably, the accommodation suggested by Dr. Boriosi new
directives or procedures on mail handling be given to Plaintiff
in writing to protect him from the adverse circumstances arising
from the potential loss of such mail does not suggest any substantial limitation in any major life
Plaintiff's own evidence, therefore, compels the conclusion
that Plaintiff was not substantially limited in some major life
activity at the time he was fired. Plaintiff, of course, must
establish that his "disability existed at the time of the
discriminatory act." Kocsis v. Multi-Care Mgmt., Inc.,
97 F.3d 876, 884 n. 13 (6th Cir. 1996); accord, Nowak v. St. Rita High
School, 142 F.3d 999, 1003 (7th Cir. 1998). "The court must
examine how the physical impairment affected the major life
activity at the time of the allegedly discriminatory act because
the plaintiff must establish that his disability existed at the
time of the discriminatory act." Reid v. Runyon, No.
6:98-CV-129, 2000 WL 271732, at *3 (E.D. Ky. Feb. 29, 2000),
aff'd, 34 Fed.Appx. 469 (6th Cir. May 2, 2002) (Table). Dr.
Boriosi's affidavits do not address the question of Plaintiff's
functioning at the time he was fired. Instead, they concern the
impact of Plaintiff's OCD after he was discharged and convicted
under 18 U.S.C. § 115. The fact that a debilitating condition
becomes disabling after the alleged discriminatory act is not
sufficient. See Rebarchek v. Farmers Co-Op Elevator and
Mercantile Ass'n, 60 F. Supp. 2d 1145, 1151 (D. Kan. 1999);
Rondon v. Wal-Mart, Inc., No. C-97-0369 MMC, 1998 WL 730843, at
*4 (N.D. Cal. Oct. 8, 1998).
At the summary judgment stage, the plaintiff has the obligation
of presenting some evidence of a condition that substantially
impaired a major life activity at the time of his discharge. In
this case, Mr. Sever has presented no such evidence. On this
ground alone, Defendants are entitled to summary judgment.*fn5
Even if there were evidence of a condition that substantially
impaired a major life activity in March and April of 1994,
Plaintiff must nonetheless offer evidence that Defendants had
knowledge of the disability at that time. See Kocsis,
97 F.3d at 884 ("[T]he defendant cannot discriminate `because of' a disability if it has no knowledge of
the disability."). As explained in Hedberg v. Indiana Bell
Telephone Co., Inc., 47 F.3d 928, 932 (7th Cir. 1995):
[A]n employer cannot be liable under the ADA for
firing an employee when it indisputably had no
knowledge of the disability. At the most basic level,
it is intuitively clear when viewing the ADA's
language in a straightforward manner that an employer
cannot fire an employee "because of" a disability
unless it knows of the disability. If it does not
know of the disability, the employer is firing the
employee "because of" some other reason.
Accord Morisky v. Broward County, 80 F.3d 445
, 448-49 (11th
Cir. 1996); Long v. Thomson Industries, Inc., No. Civ. A.
99-CV-1693, 2000 WL 1586078, at *7 (E.D. Pa. Oct. 24, 2000) ("To
establish disability discrimination, . . . courts have uniformly
required proof that the employer acted with an awareness of the
disability itself to satisfy the causation requirement.").
Similarly, where, as here, a plaintiff claims that the employer
failed to provide a reasonable accommodation, the plaintiff must
show that the employer was aware of the employee's disability.
See Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563
(7th Cir. 1996). "In other words, the employer must know of both
the disability and the employee's desire for accommodations for
that disability." Taylor v. Phoenixville School District,
184 F.3d 296, 313 (3d Cir. 1999). The plaintiff may rely upon either
actual or constructive knowledge of the alleged disability.
Long, 2000 WL 1586078, at *7.
In this case, the parties were directed to engage in discovery
on the question of whether Defendants had the requisite knowledge
of Mr. Sever's alleged disability in order to support a disability discrimination claim. Mr. Spaulding, Plaintiff's
supervisor who made the decision to terminate his employment,
testified that he was not aware that plaintiff had a mental
disability at the time he took the employment actions in
question. (Spaulding Dep. at 98-99). Mr. Ruth, Spaulding's
supervisor, testified that he concurred with the decision to
terminate Plaintiff's employment and had no awareness that
Plaintiff had a "mental disability." (Ruth Dep. at
Mr. Sever points out that on March 24, 1994, about ten days
before the termination letter, he and his attorney informed Mr.
Spaulding of "Dr. Borisi's initial findings of Post-Traumatic
Stress symptoms." (Sever Aff. at ¶ 3.) Sever also points out
that, by handwritten letter dated March 26, 1994 addressed to
Jonathon Lister, a Postal Service labor relations specialist
manager who accompanied Mr. Spaulding to the March 24, 1994
meeting, Mr. Sever requested that any decision that may adversely
affect his employment be deferred until his doctor could provide
"a more complete prognosis of [his] condition."
The fact that plaintiff conveyed a health care professional's
initial findings of post-traumatic stress disorder does not
support an inference that Defendants were aware of a disability. Although post traumatic stress disorder may
constitute a mental impairment for purposes of the
anti-discrimination law, it does not follow that the impairment
is disabling. Furthermore, simply informing an employer of a
particular condition is not tantamount to providing the employer
with knowledge that the employee is substantially limited in some
major life activity. "Vague or conclusory statements revealing an
unspecified incapacity are not sufficient to put an employer on
notice of its obligations under the ADA." Morisky,
80 F.3d at 448.
In this case, it is evident that Mr. Sever was seeking to
explain that his threatening conduct was a by product of post
traumatic stress disorder. Proving a causal relationship between
his threatening conduct and an alleged mental condition would
not, however, support an inference that he was substantially
limited in any major life activity. Nor would awareness of a
preliminary diagnosis of a mental condition as a causative factor
for threatening conduct support an inference of knowledge by the
employer that the employee was substantially limited in some
major life activity.
This case stands in stark contrast to the facts presented in
Taylor v. Phoenixville School District, 184 F.3d 296 (3d Cir.
1999). In Taylor, a secretary for a school principal sued the
Phoenixville School District for the failure to accommodate her
disability resulting from bipolar disorder. In determining
whether the school district had sufficient notice of her
disability, the court noted that Ms. Taylor began to act
strangely at work. After work, she hid herself in a train station and disguised herself by covering her head with a scarf
because she believed that someone was after her. Ms. Taylor's
behavior caused the school principal and administrative assistant
for personnel to contact Ms. Taylor's son. After being contacted
by the school, Ms. Taylor's son drove her to a psychiatric
hospital. During the car ride, she began having paranoid
delusions. Ms. Taylor was admitted as a patient in the
psychiatric hospital and remained in the hospital for
approximately one month. During Ms. Taylor's leave of absence,
the son contacted the school principal and informed her that Ms.
Taylor had bipolar disorder and would require accommodations when
she returned to work. He provided the principal with information
he received from Ms. Taylor's doctors, including her diagnosis,
treatment, and medications. The hospital also sent a letter to
the school district that provided the name and phone number of
one of Ms. Taylor's physicians to answer any questions the school
district may have. The principal contacted one of Ms. Taylor's
physicians. Based on this evidence, the Third Circuit found that
the "school district had more than enough information to put it
on notice that [Ms.] Taylor might have a disability. . . ." Id.
at 314. The court further noted that it was not essential that
the principal or the plaintiff know the specific name of Ms.
Taylor's condition. See id.
In this case, by way of contrast, there is only Mr. Sever's
threatening conduct immediately following employment discipline.
Plaintiff has presented no evidence of a pattern of bizarre
behavior that could cause a reasonable person to suspect that
Plaintiff was suffering from some condition that was
substantially restricting his functioning in a major life
activity. No hospitalization preceded the threatening conduct. Nor does Mr.
Sever's disclosure of a preliminary finding of post traumatic
stress symptoms suffice to show that Mr. Sever may have been
substantially limited in some major life activity. An impairment
having a causal relationship to employment-terminating conduct
does not necessarily have a substantial impact on a major life
As noted above, it is incumbent upon the employee to "show that
the employer knew of [the] employee's substantial physical or
mental limitation" resulting from the diagnosed impairment.
Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 163
(5th Cir. 1996). In Taylor, the court confronted the question
of whether the employee had adduced sufficient evidence of the
employer's knowledge of limitations caused by bipolar disorder so
as to preclude summary judgment in favor of the employer. The
record showed that Mr. Taylor met with his employer to discuss
his annual review. During the meeting, the employer expressed
displeasure with Mr. Taylor's work. Mr. Taylor then informed the
employer that he had bipolar disorder and that he wanted the
employer's doctors to find out more about the disorder. After
being informed of the disorder, the employer asked Mr. Taylor if
he was alright. Mr. Taylor responded, "Yeah. I guess." At some
point in the meeting, Mr. Taylor asked for a reduction in his
work objectives and a lessening of pressure. Mr. Taylor did not
inform the employer that he was unable to do his job because of
In moving for summary judgment, the employer argued that Mr.
Taylor failed to inform anyone of his physical or mental limitations arising from his
bipolar disorder. The employer further argued that it is not the
illness the employer must accommodate, but rather any limitations
or restrictions caused by the illness. The Fifth Circuit agreed
with the employer, explaining:
For purposes of proving ADA discrimination, it is
important to distinguish between an employer's
knowledge of an employee's disability versus an
employer's knowledge of any limitations experienced
by the employee as a result of that disability. This
distinction is important because the ADA requires
employers to reasonably accommodate limitations, not
disabilities. "The determination of whether an
individual has a disability is not necessarily based
on the name or diagnosis of the impairment the person
has, but rather on the effect of that impairment on
the life of the individual." 29 C.F.R. 1630.2(j),
App. (1995); 42 U.S.C. § 12112(a)(5)(A) ("[T]he term
`discriminate' includes . . . not making reasonable
accommodations to the known physical or mental
limitations of an otherwise qualified individual
with a disability. . . .") (emphasis added);
29 C.F.R. 1630.9, App. (1995) ("Employers are obligated
to make reasonable accommodations only to the
physical or mental limitations resulting from the
disability that is known to the employer.") (emphasis
Id. at 164. See also Mihalko v. Potter, Civ. A. No.
00-2076, 2003 WL 23319594, at *10-11 (W.D. Pa. Dec. 12, 2003)
(finding that Plaintiff failed to establish that the employer
knew that Plaintiff was actually disabled because the employer
did not know of any substantial limitations that resulted from
As in Taylor, Sever has failed to produce any evidence that
the employer had knowledge of any limitations in concentrating,
learning, and completing routine activities at the time of his discharge. The record does not state whether Dr.
Boriosi's "initial observations of post traumatic stress
symptoms" involved Mr. Sever's substantial limitations in
concentrating, learning, and completing routine activities. The
record also does not show whether Mr. Sever provided Defendants
with medical reports discussing his substantial limitations prior
to issuance of the termination letter in 1994. As the Fifth
Circuit held in Taylor, I find it is insufficient to merely
inform the employer of a mental impairment without advising the
employer of the substantial limitations the impairment has on
major life activities for which the employee seeks accommodation.
Because Mr. Sever failed to establish that Defendants knew of any
substantial limitations he had in any major life activities, Mr.
Sever has failed to establish as a matter of law that Defendants
knew that he was disabled at the time of the adverse employment
Even if Plaintiff had established a genuine dispute of fact
material to the questions of disability and the employer's
knowledge thereof at the time of the adverse employment action,
Defendants would still be entitled to summary judgment. Plaintiff
must show that he was "otherwise qualified" to maintain his
employment with the Postal Service. Donahue, 224 F.3d at 229.
An employer may establish "qualification standards" that require
that an employee not pose a direct threat to the safety of other
persons in the workplace. See 42 U.S.C. § 12113(b). The conduct
that prompted Mr. Sever's discharge was so threatening as to
support a criminal conviction under 18 U.S.C. § 115, which makes
it unlawful to threaten to assault or murder a United States official with the intent to impede, intimidate or
interfere with that official's performance of official duties or
with intent to retaliate against that official. Clearly, an
employer could conclude that engaging in such egregious conduct
would disqualify the employee from continued employment.
"Although the ADA prevents an employer from discharging an
employee based on his disability, it does not prevent an employer
from discharging an employee for misconduct, even if that
misconduct is related to his disability." Fullman v. Henderson,
146 F. Supp. 2d 688, 699 (E.D. Pa. 2001), aff'd,
29 Fed.Appx. 100 (3d Cir. 2002) (Table). Thus, for example, in Jones v.
American Postal Workers Union, 192 F.3d 417, 429 (4th Cir.
1999), the court held that an employer could not be held liable
under the ADA for terminating an employee suffering from
schizophrenia and post traumatic stress syndrome after the
employee had threatened a co-worker, stating that "[t]he law is
well settled that the ADA is not violated when an employer
discharges an individual based upon the employee's misconduct,
even if the misconduct is related to a disability." Similarly, in
Hamilton v. Southwestern Bell Telephone Co., 136 F.3d 1047,
1052-53 (5th Cir. 1998), the court held that an employee could
not maintain an ADA claim on the grounds that post traumatic
stress disorder caused outbursts at work directed at fellow
employees, explaining that "the ADA does not insulate emotional
or violent outbursts blamed on an impairment." Thus, the fact
that Mr. Sever asked for the understanding of his employer
after his outrageous behavior, suggesting that his conduct may
have been attributable to post traumatic stress disorder, does not save
this action from dismissal.
For the reasons set forth above, Defendants' motion for summary
judgment will be granted and Plaintiff's motion for summary
judgment will be denied. An appropriate order follows.
NOW, THIS 10th DAY OF AUGUST, 2005, for the reasons set forth
in the foregoing Memorandum, IT IS HEREBY ORDERED THAT:
1. Defendants' motion for summary judgment (Dkt. Entry 80) is
2. Plaintiff's motion for summary judgment (Dkt. Entry 81) is
3. The Clerk of Court is directed to enter judgment in favor of
Defendants and to mark this matter CLOSED.