Bailey v. Department of Defense, AT0752000849-1-2, July 18, 2002.

• The employee's actions near and after her removal did not support a finding that she was incapable of filing and pursuing a disability retirement application and accordingly the Board declined to order the agency to file on her behalf.
  
• Evidence did not show that the employee was disabled by reason of her bipolar illness.
  
• Neither the Rehabilitation Act nor the Americans with Disabilities Act immunize disabled employees from being disciplined for misconduct in the workplace, provided the agency would impose the same discpline on an employee without a disability.

The appellant was an Accounting Technician at the agency’s Defense Finance and Accounting Service. Effective August 12, 2000, the agency removed her from her position for disruptive behavior and threatening a coworker. The agency found that the appellant had disrupted the workplace when she became extremely agitated and loud, used profanity, generally ranted as she confronted several coworkers about allegedly moving some of her personal property (including her mother’s photograph), and threatened to "take whoever was responsible off post and tear them apart." The agency also found that the appellant'’s misconduct left several coworkers in fear for their safety. The agency further found that the appellant had threatened another coworker when she blocked the exit to the coworker’s cubicle and in an angry, loud tone stated to the coworker that she "was going to pay," that she was "going to take her down," and that she was going to get the coworker because "no one messes with [the appellant’s] mother."

The appellant appealed the removal to the Board, denying the charges. She alleged that removal was too harsh and that the agency’s removal action was based on disability discrimination (bipolar disorder). The administrative judge (AJ) affirmed the removal finding that the appellant engaged in disruptive behavior and had made threatening remarks to a coworker. The AJ also found that the appellant failed to establish her affirmative defense of disability discrimination based on her diagnosed condition of bipolar disorder, and that the penalty of removal was reasonable.

The appellant petitioned the Board for review of the AJ’s decision again alleging that removal was too harsh, and that she suffered disability discrimination based on her diagnosed condition of bipolar disorder.

In reviewing the case, the Board issued a show-cause order to the agency because of the obvious connection between the appellant's charged misconduct and her diagnosed bipolar disorder and the agency’s failure in either its notice of proposed removal or decision letter to inform the appellant about the possibility of a FERS disability retirement. After considering the agency’s response to the show-cause order and the Board’s evaluation of the record, the Board found that the employee’s actions near and after her removal did not support a finding that she was incapable of filing and pursuing a disability retirement application. Accordingly, the Board declined to order the agency to file on her behalf. Under 5 CFR § 844.202, an agency has a duty to file and prosecute a disability retirement application on behalf of an employee who lacks the capability to make a rational decision to file and process such an application with the Office of Personnel Management.

On the appellant’s allegation that she suffered disability discrimination based on her diagnosed condition of bipolar disorder, the Board determined that not every individual who suffers from an impairment is disabled under disability discrimination law. To be considered so disabled, one must have a "physical or mental impairment that substantially limits one or more of the major life activities of such individual," have "a record of such an impairment," or be "regarded as having such an impairment." For the major life activity of working, "substantially limits" means that the individual is generally foreclosed by her impairment from the type of employment involved. When the major life activity of working is under consideration, the statutory phrase "substantially limits" requires that the employee allege she is unable to work in a broad class of jobs. Citing Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 122 S. Ct. 681, 692-93 (2002), it noted that the "class-based framework" does not apply outside the context of the major life activity of working.

In this case the appellant did not specifically allege that she was generally foreclosed by her bipolar disorder from performing the work of an Accounting Technician or similar work or that any other major life activity was substantially limited. The evidence did not show that she was disabled by reason of her bipolar disorder. The Board determined that even assuming the appellant was found to be disabled, and assuming that the employee’s disruptive behavior and threatening statements were a manifestation of her bipolar disorder, she would still not have proven her allegation of disability discrimination. "Neither the Rehabilitation Act nor the Americans with Disabilities Act immunize disabled employees from being disciplined for misconduct in the workplace, provided the agency would impose the same discipline on an employee without a disability." In the appellant’s case, the record suggests that the agency would have removed an employee without a disability who threatened a coworker and caused such extensive disruption, and the appellant presented no evidence to the contrary. Accordingly the Board agreed with the AJ and affirmed the removal.

In recent years, the Board has on several occasions ordered an agency to submit an application for disability retirement on behalf of an employee it determines is incapable of making such a decision. This case is a good example of the limits of such a trend. In addition, this decision reaffirms several important established holdings, including the new test for determining whether an employee is disabled and the principle that entitlement to reasonable accommodation does not immunize an employee from being held accountable for misconduct.

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