03990020
09-13-2000
Sean Foley, Petitioner, v. Janet Reno, Attorney General, Department of Justice (Immigration and Naturalization Service), Agency.
Sean Foley v. Department of Justice (Immigration and Naturalization
Service)
03990020
09-13-00
.
Sean Foley,
Petitioner,
v.
Janet Reno,
Attorney General,
Department of Justice
(Immigration and Naturalization Service),
Agency.
Petition No. 03990020
MSPB No. SF 0752980258-I-2
DECISION
On November 12, 1998, Sean Foley (hereinafter referred to as petitioner)
timely filed a petition with the Equal Employment Opportunity Commission
(the Commission) for review of the initial decision of the Merit Systems
Protection Board (MSPB or Board) that became final on October 14,
1998, concerning an allegation of discrimination in violation of �501
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791, et seq.
The petition is governed by the provisions of the Civil Service Reform Act
of 1978 and EEOC Regulations, 29 C.F.R. �1614.303 et seq. The MSPB found
that the Department of Justice (Immigration and Naturalization Service)
(hereinafter referred to as the agency) did not engage in discrimination
as alleged by petitioner. For the reasons that follow, the Commission
concurs with the Board's decision.
The issue presented is whether the MSPB's determination that petitioner
failed to prove that the agency discriminated against him based on
disability when he was removed from his position of Border Patrol Agent
effective December 19, 1997, constitutes a correct interpretation of
the applicable laws, rules, regulations, and policy directives and is
supported by the record as a whole.
On May 12, 1998, petitioner refiled<1> an appeal from the agency's action
removing him from his position for reasons of medical disability that did
not allow him to perform the duties of his position. Petitioner alleged
that the agency discriminated against him based on disability, in that,
it failed to accommodate him by reassigning him to another position.
On September 9, 1998, an MSPB Administrative Judge (AJ) sustained the
agency's action and found that the agency had not discriminated against
petitioner.
The MSPB decision set out the pertinent facts. Since March 1995,
petitioner worked in the San Diego (California) area as a Border Patrol
Agent. On September 1, 1996, he was injured when he fell from a cliff in
the performance of his duties. Following rehabilitation, two physicians
recommended that physical limitations be placed on petitioner's job
activities, i.e., not to lift objects over 25-30 pounds and to avoid
situations placing stress on the spine, such as physical confrontations.
Petitioner's medical condition and restrictions rendered him unable to
perform the duties of his position as a Border Patrol Agent. The agency
conducted a job search for vacant positions but did not find any vacant
positions for which petitioner met the physical or basic qualifications.
Petitioner was terminated from the agency because his medical condition
precluded performance of the duties of his position.
The AJ found that petitioner was a person with a disability and that
the agency searched for a vacant position but found no positions
available for which petitioner met minimum requirements, that is, for
which he could perform the essential duties, with or without reasonable
accommodation. The AJ rejected petitioner's arguments that the agency
should have considered reassigning him to a position in the Boston area.
She concluded that he was not a qualified person with a disability and
that the agency did not discriminate against him.
The Commission must determine whether the decision of the MSPB with
respect to the allegation of discrimination constitutes a correct
interpretation of any applicable laws, rules, regulations, and policy
directives and is supported by the evidence in the record as a whole.
29 C.F.R. �1614.305(c). After considering petitioner's contentions
and thoroughly reviewing the record, the Commission concurs with the
MSPB, finding that the agency did not discriminate against petitioner.
The decision of the MSPB correctly states the facts and applies the
pertinent principles of law. We find that the MSPB's decision is
fully supported by the record. Petitioner has not demonstrated that
the agency's action was in violation of the Rehabilitation Act or taken
for reasons of discriminatory animus. We find therefore that the agency
did not discriminate against petitioner.
CONCLUSION
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to CONCUR with the final decision
of the MSPB finding no discrimination. The Commission finds that the
MSPB's decision constitutes a correct interpretation of the laws, rules,
regulations, and policies governing this matter and is supported by the
evidence in the record as a whole.
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:
Frances M. Hart
Executive Officer
Executive Secretariat
___09-13-00________
Date
1Petitioner originally appealed to the MSPB on January 20, 1998.
That appeal was dismissed without prejudice on May 5, 1998.