03A10109
06-27-2002
Fred Justice, Petitioner, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Fred Justice v. Department of the Navy
03A10109
06-27-02
.
Fred Justice,
Petitioner,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Petition No. 03A10109
MSPB No. DC-0752-00-0360-I-1; DC-0752-00-0361-I-1
DECISION
On September 18, 2001, petitioner filed a timely petition with the Equal
Employment Opportunity Commission (EEOC) asking for review of a final
Opinion and Order issued by the Merit Systems Protection Board (MSPB
or Board) on August 28, 2001, concerning his claims of discrimination
in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq. (1994 & Supp. V 2000) (Rehabilitation Act). The Commission
accepts this petition in accordance with the Civil Service Reform Act of
1978, Pub. L. No. 95-454, 92 Stat. 1111 (codified as amended in various
sections of 5 U.S.C.) and EEOC regulations at 29 C.F.R. � 1614.303 et seq.
ISSUE PRESENTED
In this petition, petitioner alleged that the agency discriminated
against him based on his disability when 1) from October 25, 1999 to
February 11, 2000, he was constructively suspended and 2) on February 12,
2000, he was removed from the agency. The issue presented is whether
the MSPB's determination that petitioner failed to prove discrimination
constitutes a correct interpretation of the applicable laws, rules,
regulations and policy directives, and is supported by the record as
a whole.
BACKGROUND
On March 3, 2000, petitioner filed a timely appeal with the MSPB
challenging his constructive suspension and removal from his position
as a cook/baker on board an agency Navy ship based in Virginia Beach,
Virginia, and alleging discrimination based on his disability (bipolar
affective disorder). Following a hearing, an MSPB administrative judge
(AJ) issued an Initial Decision on November 7, 2000, reversing the
agency's constructive suspension and sustaining the removal action, but
in both actions, finding that the agency acted in conformance with its
regulations dealing with the physical standards applicable to positions
involving sea duty, and that the agency did not discriminate against
petitioner. The Board modified the AJ's decision by expanding the dates
included in the constructive suspension determination, but affirmed the
AJ's removal decision and agreed with the AJ that discrimination was
not a factor in the agency's decisions. Thereafter, petitioner filed
the instant Petition For Review.
On August 1, 1999, petitioner, a cook/baker on board a Navy ship at
sea, failed to report for duty, and later tested positive for using an
intoxicant and being legally impaired. On August 3, 1999, the agency
suspended petitioner for failing to report for duty, and for being under
the influence of intoxicants during his duty hours, in violation of
ship's orders. On August 14, 1999, petitioner was removed from his ship
and returned to his home port in a sick leave status. The ship's Medical
Services Officer characterized petitioner's recent shipboard behavior as
psychotic, and reported that petitioner had given away personal items,
telling others that he had considered jumping overboard. Petitioner
had been seen sitting on the deck, smoking and crying. According to a
clinical neuropsychologist who examined petitioner, petitioner reported
that he did not sleep or eat well, and lost about 30 lbs. prior to
the August 1, 1999 event. Petitioner experienced irritability, poor
tolerance of frustration and mood swings. In late August, petitioner
was diagnosed with bipolar affective disorder in the depressed phase.
The agency's medical officer testified that petitioner's condition was
chronic and demanded constant medical attention. In late September,
petitioner's psychiatrist prescribed medication and released him to
resume his regular duties. On October 25, 1999, petitioner reported
for duty but the agency's medical officer would not clear him because
she determined there was a high probability that petitioner would not
stay on his medication while at sea. The medical officer was guided in
reaching her decision by the agency's medical manual and by information
from petitioner's personal physicians. She concluded that petitioner
was permanently not fit for duty, and on February 12, 2000, petitioner
was removed from the agency.
ANALYSIS
The Commission must determine whether the decision of the MSPB with
respect to the allegations 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). The Commission finds that the MSPB's decision
is supported by the record and, for the reasons stated below, concurs
with its findings.
One bringing a claim of discrimination on the basis of disability has
the burden to show that he is an individual with a disability. Ceralde
v. United States Postal Service, EEOC Appeal No. 07A00038 (Aug. 2, 2001).
An individual with a disability is defined as one who (1) has a physical
or mental impairment that 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. <1> 29 C.F.R. � 1630.2(g); Fidurski
v. Department of Health and Human Services, EEOC Request No. 05960027
(Feb. 19, 1997). One can be regarded as disabled if an impairment is
perceived as substantially limiting in the performance of a major life
activity, or if one has no impairment but is erroneously perceived as
having an impairment which substantially limits a major life activity.
29 C.F.R. � 1630.2(l). In regard to working,<2> the term substantially
limited means �significantly restricted in the ability to perform either
a class of jobs or a broad range of jobs in various classes as compared to
the average person having comparable training, skills and abilities.� 29
C.F.R. � 1630.2(j)(3)(i). �...[T]o be regarded as substantially limited
in the major life activity of working, one must be regarded as precluded
from more than a particular job.� Murphy v. United Parcel Service,
Inc., 527 U.S. 516, 523 (1999). While petitioner argued that the agency
regarded his impairment as substantially limiting his ability to work,
he adduced no evidence in support of this. Indeed, no evidence showed
that the agency regarded complainant as unable to be employed on land
as a cook/baker. Here the agency regarded petitioner only as unable to
work at sea. 29 C.F.R. � 1630.2(j)(3)(i); Murphy, supra.
Absent evidence that the agency perceived his impairment as substantially
limiting, petitioner cannot show that he was disabled within the meaning
of the Rehabilitation Act.<3>
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
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
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
__06-27-02________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to petitioner, petitioner's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The 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.
2 Where an individual is not substantially limited in any other major
life activity, the individual's ability to perform the major life activity
of working should be considered. 29 C.F.R. � 1630.2(j) App.
3We note that on appeal, petitioner solely argued that he was
discriminated against based on the agency's regarding him as disabled.