Sean Foley, Petitioner,v.Janet Reno, Attorney General, Department of Justice (Immigration and Naturalization Service), Agency.

Equal Employment Opportunity CommissionSep 13, 2000
03990020 (E.E.O.C. Sep. 13, 2000)

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.