Michael Buckler v. Federal Retirement Thrift Investment Board
03990123
September 8, 2000

Michael Buckler,                            )
 Petitioner,                                )
                                            ) Petition No. 03990123
 v.                                         ) MSPB No.     DC-0432-98-0536-I-1
                                            )
Roger Mahle,                                )
Executive Director,                         ) 
Federal Retirement Thrift Investment Board, )
 Agency.                                    )
____________________________________________)

DECISION  

INTRODUCTION

On July 9, 1999, Michael Buckler (hereinafter referred to as petitioner)
filed a petition with the Equal Employment Opportunity Commission
(Commission) for review of the Merit Systems Protection Board's (MSPB
or the Board) final decision on his case.<1>  In that decision, the
MSPB found that petitioner was not subjected to disability (attention
deficit hyperactivity disorder) discrimination when he was terminated
from employment on April 25, 1998.  See 501 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. 791 et seq.  The Commission accepts
this petition in accordance with the Civil Service Reform Act of 1978
and EEOC Regulations at 29 C.F.R. 1614.303 et seq.

ISSUE PRESENTED

The issue herein is whether the Board's determination that the agency
had not discriminated against petitioner on the basis of his disability
(attention deficit hyperactivity disorder (ADHD)) constitutes a correct
interpretation of the applicable laws, rules, regulations, and policy
directives, and is supported by the record as a whole.

BACKGROUND

Petitioner filed an appeal with the MSPB on May 19, 1998, alleging that
he had been subjected to disability discrimination when he was terminated
from his Thrift Savings Plan (TSP) Communications Specialist, GS-12,
position on April 25, 1998.  Following a hearing, an MSPB Administrative
Judge (AJ) issued an initial decision, sustaining the agency's action
and finding no discrimination.  The full Board subsequently denied
petitioner's petition for review.  Petitioner timely filed a petition
for review with this Commission.

A review of the record reveals that petitioner had previously worked
for the agency as a Special Services Officer, GM-15, but was separated
in 1994 during a reduction in force.  Petitioner appealed the matter
to the MSPB, which found that he was entitled to be reassigned to
the position of TSP Communications Specialist.<2>  Petitioner began
working in the Office of Communications in March 1997.  In August 1997,
petitioner received a performance evaluation for the period from March 1,
1997, through July 31, 1997, in which he was rated unsatisfactory in
three of five critical elements.  Petitioner's performance evaluation
included a seven-page narrative describing deficiencies in the areas
of 1. writing, editing, and revising TSP documents and other material;
2. project management skills; and 3. initiative and responsibility.
Petitioner's supervisors also noted that he devoted a significant amount
of time to technical aspects of software that were not relevant to his
work, used leave without prior approval, did not take on new assignments
without being prompted, and shifted work and responsibility to others.
Petitioner was placed on a 90-day performance improvement plan (PIP)
on November 3, 1997.  The PIP letter also included a lengthy description
of petitioner's work deficiencies and suggestions for improvement.

The Director and Deputy Director of the Office of Communications met with
petitioner on a weekly basis during the PIP to review his performance.
Both the Director and the Deputy Director stated that they frequently
met with petitioner on a daily basis to discuss his work or specific
assignments.  The Deputy Director noted that petitioner was given
relatively easy assignments with lengthy deadlines and little writing
in order to improve his performance.  Petitioner also received written
instructions regarding his assignments.  The Director noted that
petitioner continued to use significant amounts of unscheduled leave
and was away from his desk for several hours during the day.

On January 15, 1998, shortly before the PIP was scheduled to end,
petitioner informed the Director and Deputy Director that he had been
diagnosed with ADHD and would be seeking reasonable accommodation.
On February 3, 1998, petitioner provided his supervisors with a one-page
letter from his psychiatrist (Dr. C) listing nine accommodations
which generally aid individuals with ADHD, including 1. developing an
external training plan; 2. continued weekly or more frequent meetings;
3. relocation to a less distracting office; 4. tape recording meetings
with supervisors; 5. identifying two colleagues to provide technical
assistance; 6. documenting office policies and procedures; 7. job
restructuring/modification; 8. a flexible work schedule to allow for
evening and weekend hours or work at home; and 9. providing specific
written instructions for major projects.  The Director responded on
February 11, 1998, noting that petitioner had already been receiving the
majority of suggested accommodations.  The Director requested that Dr. C
provide more specific information regarding accommodation, particularly
how the job could be restructured to address petitioner's ADHD.
The Director also questioned Dr. C's recommendation that petitioner be
given a flexible work schedule given the additional assistance Dr. C
had also recommended.  Dr. C responded to the Director's letter by
essentially repeating the general recommendations made previously.

The PIP was extended for a period of 30 days, after which petitioner's
supervisors concluded that his performance had not improved.  The Director
of Administration was consulted regarding possible reassignment;
however, petitioner did not qualify for any of the vacant positions
at the agency.<3>  Petitioner was therefore terminated from his TSP
Communications Specialist position.

The Deputy Director testified that she denied petitioner's request, on
his first day in the office, that his performance not be reviewed for
three months.  She stated that she met with petitioner at the beginning
of each assignment to discuss the nature of the work and scheduling,
and provided him with examples to follow.  The Deputy Director noted that
she met with petitioner at least daily to discuss his work.  The Deputy
Director stated that petitioner advised her that she would regret placing
him on a PIP.  She stated that, during the PIP, she increased her efforts
to clarify what was expected from petitioner.  Nevertheless, the Deputy
Director noted that petitioner continued to use unscheduled leave and
arrive late for work, citing reasons such as difficulty getting a cab, the
need to pick up tissues and cold medicine, and his dishwasher overflowing.
In addition, she stated that, on two occasions, petitioner submitted
documents with coffee stains.  The Deputy Director stated that management
was already providing most of the accommodations recommended by Dr. C.
The Director noted that, upon assuming the TSP Communications Specialist
position, petitioner was hesitant about signing his performance plan,
stating that his attorney indicated it was not appropriate for the
GS-12 level.  She stated that petitioner, however, never specified any
language with which he disagreed.  The Director stated that, during the
PIP, petitioner was given increasingly easier assignments with longer
deadlines, but that his performance did not improve.

Both the Director and the Deputy Director noted that it would have been
difficult to schedule petitioner for outside training during the PIP
due to his number of absences, but that petitioner received training
from colleagues and supervisors.  In addition, they stated that it
would have been difficult to tape record meetings, which were frequently
spontaneous and involved discussions of written text, and that doing so
would have required petitioner to keep detailed logs of various tapes in
order to find the material he needed.  The Director and Deputy Director
also considered providing petitioner with a partition as he requested,
but found that it would have blocked his doorway while failing to block
sound.  Nevertheless, petitioner was told he could close his office door.
With regard to restructuring petitioner's job, the Director and Deputy
Director noted that petitioner and Dr. C only suggested that the agency
overlook petitioner's errors.

The record includes an intake form showing that petitioner contacted
Dr. C's office on September 30, 1997, for possible ADD.  Dr. C stated
that he read petitioner's performance appraisal and PIP letter, and
conducted two relatively new computerized tests.  Petitioner's test
results revealed a severe impairment in the lowest 25th percentile.
Dr. C noted that on petitioner's second visit, his test results improved
after he was given Ritalin.  Dr. C stated that only approximately ten
percent of his diagnosis was based upon the tests.  Dr. C noted that
no tests are required to diagnose ADHD, and that such a diagnosis is
descriptive, based upon behavior and history.  Dr. C noted a number
of examples of behavior typical of individuals with ADHD cited in the
documents from the agency.  Dr. C testified that he spent one hour
of the first session interviewing petitioner, and asked if petitioner
had any neurological problems, weakness, serious medical conditions,
drug addiction, sustained head trauma or automobile accidents.  Dr. C
noted that he reviewed petitioner's childhood history, which confirmed
the same type of problems as those noted by the agency.  Dr. C stated
that the problems in petitioner's personal life paralleled those in
his work; however, the only examples given by Dr. C were petitioner's
difficulty balancing his checkbook, occasional failure to pay bills on
time, occasionally running out of gas, and difficulty locating income tax
documents.  Dr. C noted petitioner's prior outstanding job performance,
but stated that the job involved larger, more abstract problems.

Dr. C acknowledged that he did not take notes during petitioner's sessions
at petitioner's request, which was not in keeping with the standard
practice in the profession or his own standard practice.  Dr. C also
stated that he treats from 50 to 60 patients each week.  He stated that
he diagnosed severe ADHD of the predominately inattentive type after his
second session with petitioner.  Dr. C confirmed that he did not obtain
any of petitioner's medical records, and did not have a record of the
history petitioner articulated.  He stated that if the information which
petitioner provided was incorrect, then it was possible the diagnosis was
inaccurate.  Dr. C acknowledged that the symptoms exhibited by petitioner
could also be seen in someone who lacked motivation, but Dr. C ruled out
that possibility in part because of petitioner's prior history of high
achievement and outstanding job performance.  Dr. C stated that he did
not have a physical examination performed on petitioner. Dr. C confirmed
that he was not familiar with petitioner's specific job duties or what
could have been done to restructure his job.

The agency presented reports and testimony from a doctor of occupational
medicine (Dr. P) and a psychologist (Dr. H).  Dr. P concluded that
the clinical information in the record was insufficient to establish a
diagnosis of ADHD.  Specifically, Dr. P noted the lack of clinical notes
and historical information to substantiate or exclude other diagnoses.
Dr. P stated that in other cases he has reviewed, the record includes
evidence of a complete psychiatric examination, including a social
history and examples of a lifelong disability, as well as information
ruling out other medical or psychiatric conditions.  Dr. P noted that
petitioner's work did not improve despite medication, and that there
was no evidence of any relationship between petitioner's absences
and his ADHD.  Dr. P acknowledged that he did not examine petitioner,
but stated that he did review Dr. C's deposition testimony.<4>  Dr. P
stated that petitioner's symptoms are not specific to ADHD, and that
there is no evidence that a physical examination was conducted to rule
out causes such as neurological conditions, metabolic illness, diabetes,
kidney disease, or heart disease.  Dr. P stated that, in his experience,
individuals with ADHD do not work well at home, especially if the job
requires significant feedback or interaction with others.  Dr. P concluded
that the agency had essentially complied with Dr. C's recommendations,
but that the job, which was detail oriented, would be difficult for an
individual with ADHD of the severity diagnosed by Dr. C.

Dr. H also found the evidence of record insufficient to render a
diagnosis of or suggest accommodations for petitioner.  Dr. H noted
the lack of historical information and an examination.  Dr. H stated
that ADHD requires the exclusion of other diagnoses, and that there
was no information that such causes had been excluded in this case.
Dr. H questioned the tests used by Dr. C, stating that despite several
attempts, he was unable to obtain the test material or any information
regarding one of the tests.  Further, Dr. H noted that the other test
showed a below normal level of verifiable responses and an above normal
level of probable errors.  Dr. H stated that a diagnosis of ADHD involves
a pervasive history, essentially lifelong in nature, and an examination
of the individual's educational, social, and occupational adjustment.
Dr. H noted that there would be a consistent pattern of incidents.
Dr. H questioned the lack of a physical examination to rule out thyroid
or hearing problems, and substance abuse.  Dr. H also stated that he
did not examine petitioner, but reviewed Dr. C's deposition testimony.
Dr. H questioned whether a diagnosis could be made after just a few hours,
stating that his evaluations usually encompass an entire day, including up
to four hours of interviews, and occur after the individual has undergone
a complete physical examination.  Dr. H questioned Dr. C's failure to
keep notes, stating that while he has treated individuals who ask that
records not be kept of certain incidents, such as abuse, he has never been
asked at the outset of treatment not to record entire sessions.  Dr. H
further indicated that individuals with ADHD require a more structured
environment and schedule rather than more flexible arrangements.

Petitioner stated that he obtained a bachelor of science degree and
completed a number of post-graduate courses.  He testified to a successful
professional career in the insurance industry prior to coming to the
agency in June 1987.  Petitioner first worked for the agency as a Special
Assistant, Telecommunications, GS-15, in the Office of Administration.
Petitioner acknowledged that his previous job at the agency involved
writing and editing, and stated that after he took the initiative for one
project, he wrote several memoranda to the Executive Director, including
a six to eight page document outlining various technical issues, as well
as contract proposals and evaluation criteria.  Petitioner described
his former job as being high stress.

Petitioner described his return to the agency in 1997 as being awkward,
stating that he was not welcomed by the Director or Deputy Director.
He testified that, after receiving his performance appraisal, he concluded
that there was a problem and contacted a social worker regarding a
medical referral.  Petitioner contacted Dr. C in late September 1997.
Petitioner stated that he wanted a measurement of his cognitive functions.
He acknowledged asking that Dr. C not take notes during their sessions.
Petitioner stated that, during the first two sessions, he spoke with
Dr. C for only five or ten minutes, and spent most of his time undergoing
testing.  He stated that, after that time, Dr. C asked him to research
his family history.  Dr. C then asked about his childhood, and school
experiences.  Petitioner stated that he specifically advised Dr. C of an
incident in kindergarten when he was made to sit in the corner, although
he could not recall the reason therefor, and one occurrence in second
grade in which his teacher caught him not paying attention in class.
Petitioner noted that his discussions with Dr. C regarding changes in his
personal life occurred during separate sessions from those concerning
work, and that Dr. C did not draw any parallels between the two areas.
Petitioner stated that, with regard to his personal life, Dr. C offered
him suggestions as to how to avoid last minute shopping for Christmas
and birthdays, and how to manage his time.  Dr. C recommended that
petitioner break down personal tasks into small steps and make lists,
but did not recommend that he follow those practices at work.  Dr. C
also did not recommend that petitioner close the blinds in his office
or unplug his telephone for a period of time each day.

As stated, the MSPB AJ issued a decision affirming the agency's action.
The MSPB AJ further determined that petitioner had not proven his
allegation of discrimination.  Specifically, the AJ concluded that
petitioner failed to show that he had a disability which substantially
limited a major life activity.  In so finding, the AJ concluded that Dr. C
failed to provide a reasoned explanation for his diagnosis. Further,
the AJ stated that there was no evidence that petitioner was unable to
work in any position other than that of TSP Communications Specialist.
Finally, the AJ determined that, even assuming petitioner had established
the existence of a substantially limiting impairment, he failed to
articulate a reasonable accommodation under which he could perform the
essential functions of his position.

ANALYSIS AND FINDINGS

The Commission must determine whether the MSPB's decision with respect
to petitioner's allegation of discrimination constitutes a correct
interpretation of the applicable laws, rules, regulations and policy
directives, and is supported by the evidence in the record as a whole.
See 29 C.F.R. 1614.305(c).  The Commission finds that the Board's
decision constitutes a correct interpretation of the law governing the
matter at issue, and is supported by the record as a whole.  Therefore,
for the reasons set forth below, the Commission concurs with the Board's
findings.

In order to establish disability discrimination, petitioner must first
show that he is a qualified individual with a disability.  See Prewitt
v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981).  A disabled
individual is one who: 1. has an impairment which substantially limits one
or more major life activities; 2. has a record of such an impairment; or
3. is regarded as having such an impairment.  29 C.F.R. 1630.2(g).<5>
Major life activities include caring for one's self, performing
manual tasks, walking, seeing, breathing, learning, and working.
29 C.F.R. 1630.2(i).

In the case at hand, the Commission agrees with the MSPB that petitioner
has failed to prove that he is disabled for purposes of the Rehabilitation
Act.  Specifically, petitioner has not shown that he has an impairment
which substantially limits a major life activity.  It is undisputed that
Dr. C diagnosed petitioner with ADHD at the conclusion of two treatment
sessions.  While Dr. C asserted that his diagnosis was based primarily
upon petitioner's history, petitioner acknowledged that he only spoke
with Dr. C for five to ten minutes during those sessions.  Further,
given Dr. C's failure to make any record of petitioner's treatment
sessions and the stated volume of patients he treats each week, we
find Dr. C's recollection of petitioner's history at the hearing to be
questionable.  In so finding, it is noted that Dr. C did not cite to any
specific examples of behavior indicative of ADHD in petitioner's past.
Drs. P and H both found the record insufficient to support a diagnosis
of ADHD, particularly in light of the failure to perform a complete
medical examination in order to rule out other possible causes.  Thus,
the MSPB AJ's finding that Dr. C's opinion was not supported by the
record was reasonable given the record in this case.

In addition, even assuming Dr. C's diagnosis was valid, petitioner has
not shown that he is substantially limited with regard to any major
life activity. We do not find the articulated concerns in petitioner's
personal life, that is difficulty balancing his check book, misplacing
tax documents, occasionally running out of gas, and procrastination
with regard to gift shopping, to be substantially limiting as compared
to the average person in the general population.

In order to be considered substantially limited in the major activity of
working, an individual must be significantly restricted in the ability
to perform either a class of jobs or a broad range of jobs in various
classes as compared to others having comparable training, skills, and
abilities.  29 C.F.R. 1630.2(j)(3)(i).  Further, several factors may
be considered when determining whether an individual is substantially
limited with regard to working, including the number and types of jobs
utilizing similar training, knowledge, skills, or abilities, within
the geographical area, from which the individual is also disqualified.
29 C.F.R. 1630.2(j)(3)(ii).

Based upon the record herein, we find petitioner was not substantially
limited with regard to working.  While petitioner admittedly was unable
to successfully perform the duties of the TSP Communications Specialist
position, he acknowledged an outstanding professional career prior
to assuming that job.  Petitioner further stated that his previous
job at the agency involved writing, editing, and project management,
and that he successfully performed all of those tasks.  Petitioner's
job progression prior to coming to the agency also shows increasing
levels of responsibility.  The Supreme Court recently held that, to be
substantially limited in the major life activity of working, an individual
must be precluded from more than one type of job, a specialized job,
or a particular job of choice.  Sutton v. United Airlines, Inc., 527
U.S. 471, 119 S.Ct. 2139 (1999); Murphy v. United Parcel Service, Inc.,
527 U.S. 516, 119 S.Ct. 2133 (1999); see also 29 C.F.R. 1630.2(j)(3)(i).
In this case, the record shows that petitioner was at most unable
to perform one particular job, and was not substantially limited with
regard to a class or broad range of jobs.  Thus, the Commission concurs
with the MSPB that petitioner failed to prove that he was discriminated
against on the basis of disability with regard to his termination.

CONCLUSION

For the reasons as set forth above, the Commission CONCURS with the MSPB's
finding that petitioner failed to show that the agency discriminated
against him on the basis of his disability when he was terminated
effective April 25, 1998.

STATEMENT OF PETITIONER'S RIGHTS

PETITIONERS' RIGHT TO FILE A CIVIL ACTION (W0400)

This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision.  You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, WITHIN
THIRTY (30) CALENDAR DAYS of the date that you receive this decision.
If you file a civil action, YOU MUST NAME AS THE DEFENDANT IN THE
COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD,
IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security.  See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court.  Filing a request for an attorney does not extend your time
in which to file a civil action.  Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").

                                       FOR THE COMMISSION:

  09-08-00
    Date                               Frances M. Hart
                                       Executive Officer
                                       Executive Secretariat

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing.  I certify that
the decision was mailed to petitioner, petitioner's representative
(if applicable), and the agency on:

_________________________              __________________________

1On November 9, 1999, revised regulations governing the EEOC's federal 
sector complaint process went into effect.  These regulations apply to 
all federal sector EEO complaints pending at any stage in the 
administrative process.  Consequently, the Commission will apply the 
revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable, 
in deciding the present appeal.  The regulations, as amended, may also be 
found at the Commission's website at www.eeoc.gov.

2Petitioner did not raise any allegations of discrimination in his
previous appeal to the MSPB.

3The vacancies included an Accountant position, two Systems Analyst
positions, and two Student Assistant positions.

4Petitioner refused to submit to examination by Dr. P or Dr. H after he
filed his appeal with the MSPB.

5The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.  Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination.  These regulations can be found on EEOC's
website: www.eeoc.gov.