Before Newman, Rader, and Schall, Circuit Judges.
NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.
Mr. Esteban A. Sotuyo appeals a decision of the Merit Systems Protection Board (MSPB) affirming his removal from the Postal Service. *fn1 We affirm the decision.
Mr. Sotuyo was employed as a distribution clerk for the Postal Service in Provo, Utah. On the ground of stress caused by harassment at the Post Office, he left work in June 1994, beginning an extended absence. A removal action was instituted for failure to report to work as scheduled and absence without leave, and Mr. Sotuyo was removed from the Postal Service in August 1994. He appealed to the MSPB and, during the course of the appeal, entered into a settlement agreement. Pursuant to this agreement, dated November 3, 1994, in lieu of removal Mr. Sotuyo would receive a 30-day suspension. Upon completion of a treatment program and upon obtaining the appropriate approval, the suspension would be reduced to a 14-day suspension.
The Postal Service carried Mr. Sotuyo in leave-without-pay status from March 1995 until in October 1995 his psychiatrist wrote that he was able to return to work. Mr. Sotuyo returned on November 1, 1995, and was assigned to work on Tour 3 in an area where he had worked before his absence. After about six hours he asked to work elsewhere, and was given a different assignment. Less than an hour later, he complained to a supervisor that someone was telling him what to do; he then returned to work and finished the shift.
The next day Mr. Sotuyo told a Tour 2 supervisor that he could not work under the conditions on Tour 3. The supervisor responded that he would inform the postmaster of the problem, and two supervisors investigated Mr. Sotuyo's complaints. Later the same day, Mr. Sotuyo did not report to work as scheduled. He did not return to work, and did not request leave.
On November 9, 1995, the Postal Service issued a notice of proposed removal. Mr. Sotuyo provided no documentation to justify his absence. The Postal Service removed Mr. Sotuyo from the Service, by letter dated December 26, 1995. He appealed to the Board.
In considering Mr. Sotuyo's argument that he was discriminated against based on race, national origin (Hispanic/Mexican), and a handicapping condition of major depression, the Administrative Judge (AJ) found that there was a group of Postal employees who displayed hostility to employees of Mexican heritage. However, the AJ found that any past discriminatory actions were not related to this removal action, for Mr. Sotuyo had not asserted that when he returned to work on November 1, 1995 he was treated in a discriminatory fashion by anyone. According to the AJ, "[A]ll that occurred of importance on that date was that a co-worker, Mortensen, asked the appellant why he didn't tie up some mail instead of continuing to add the mail to an already-full bin." Although Mr. Sotuyo had testified that Mortensen was acting as if he was "in charge," the AJ found that this event did not warrant a reasonable employee's refusal to report to work.
The AJ also found that Mr. Sotuyo did not establish the defense of disability discrimination. He was being treated for depression, which, according to the AJ, "appeared to cause him to react in an exaggerated fashion to what he perceives as harassment or slights on the job." Mr. Sotuyo explained that he was unable to report to work both before and after November 1, 1995 because, due to what he perceived as harassment, he tended to experience violent thoughts and feelings, and that he was afraid of what he might do. On this and other evidence, the AJ found that Mr. Sotuyo had a tendency "to react to daily events in an inappropriate and exaggerated fashion," a condition which made him a "handicapped person." However, the AJ reasoned that he had not shown that there was a reasonable accommodation under which he could perform the duties of his position or of a vacant position to which he could be assigned. Mr. Sotuyo had not identified such a position and despite having had the right to bid for such a position, has refused in the past to do so.
In evaluating the removal action, the AJ considered Mr. Sotuyo's 27 years of service, that he was described as an "excellent worker" by almost all witnesses at the hearing, and that he had a disabling mental condition. The AJ noted that the agency had considered this mental condition by carrying him in a leave-without-pay status from March 1995 until the October 1995 letter from his psychiatrist that he was able to return to work. However, any inference of rehabilitation that arose from this letter disappeared when Mr. Sotuyo again left work on November 2, 1995 and did not return or request leave. The AJ found that he was not only absent during this period but that there was no foreseeable end to the absence. Accordingly, the Board held that the removal penalty was not unreasonable.
We may reverse a decision of the Board only if we conclude that it is "(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence." 5 U.S.C. '7703(c).
On this appeal Mr. Sotuyo argues that the AJ "failed to link" the past discrimination, which had resulted in a hostile work environment, to his current situation. He emphasizes that when he reported for work on November 1, 1995, management had not properly prepared for his return and the "hostilities resumed." He asserts that, as had been ...