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April 20, 1982

William L. BEY
William F. BOLGER, Postmaster General of the United States, United States Postal Service Merit Systems Protection Board

The opinion of the court was delivered by: BECHTLE

In this action, plaintiff William L. Bey ("Bey") seeks to reverse the decision of the Merit Systems Protection Board ("MSPB") which affirmed the decision of the United States Postal Service ("Postal Service") to deny for medical reasons plaintiff's application for reinstatement following Bey's completion of a two year enlistment with the United States Navy. In addition, plaintiff Bey claims that the Postal Service's action violated the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791. The parties have filed cross-motions for summary judgment on Bey's challenge to the decision of the MSPB, and a non-jury trial was held on August 20, 21 and 31, 1981, on Bey's claim of employment discrimination.

 The Court will now rule on the cross-motions for summary judgment and present its findings of fact and conclusions of law with respect to the Rehabilitation Act discrimination claim.

 I. Merit Systems Protection Board Claim

 A. Facts

 Plaintiff worked as a Distribution Clerk with the Postal Service from November 12, 1973 to February 8, 1976. On February 9, 1976, plaintiff enlisted in the United States Navy. On February 20, 1978, plaintiff was separated from the Navy and transferred to the temporary disability retired list. DD Form 214N (R. 139). On March 28, 1978, plaintiff applied for re-employment with the Postal Service, seeking reinstatement to his former position as a Distribution Clerk, Level 5, in Philadelphia, Pennsylvania. On March 29, 1978, plaintiff was examined by Irvin F. Hermann, then Area Medical Officer for the Postal Service, and the following blood pressure readings were obtained: 180/120, 170/115 (upright) and 165/115, 180/115 (reclining). Certificate of Medical Examination (March 29, 1978) (R. 128-131). Dr. Hermann noted the following medical history:

"Worked as clerk 1973-76. Navy 1976-78. 1976-Dec.-swelling of hands, elevated B.P. detected (while in service) in Portsmouth Hosp. Dec. 1976-Jan. 1977-3 weeks. Discharged from Navy Feb. 1978 because of hypertension and cold urticaria. Getting 30% disability."

 (R. 129). On April 18, 1978, Dr. Hermann re-examined the plaintiff and obtained the following blood pressure readings: 160/100, 160/100 (sitting) and 160/100, 160/100 (lying). (R. 129). Based on the medical history obtained from plaintiff and the blood pressure readings obtained on March 29 and April 18, 1978, Dr. Hermann recommended that plaintiff not be reinstated to employment because of "elevated B.P. (blood pressure) ... has been treated for more than one year ... not controlled." (R. 131). Dr. Hermann noted on a separate slip of paper that "(t)his man does not qualify and should reapply at a later date after adequate treatment." (R. 130). Plaintiff was again reexamined by the medical staff on three separate occasions. Certificate of Medical Examination (June 29, 1978) (R. 124-126). On May 3, 1978, plaintiff's blood pressure was recorded at 165/110; on June 8, 1978, it was 170/110, 180/120, 168/110; and on June 29, 1978, it was recorded at 168/118, 174/115. (R. 125). It was noted on the examination sheet that plaintiff was "on inderal, hydrodiural and apresoline daily for hypertension approx. 1 year from Phila. V. A. (Philadelphia Veterans Administration)" and that plaintiff was on a "30% vet. disability." On June 29, 1978, it was determined that plaintiff was "unsuitable" because of his hypertensive condition and the doctor's recommendation was adopted by Dominic J. Scola, an employment officer for the Postal Service. (R. 126). On July 5, 1978, plaintiff was notified by letter by A. E. Duncanson, Postmaster, Philadelphia District, that his request for re-employment-military had been denied.

 On July 14, 1978, plaintiff filed an appeal with the United States Civil Service Commission, Federal Employee Appeals Authority ("FEAA") (predecessor agency to MSPB) on the grounds that the Postal Service had violated his rights to re-employment under Section 9 of the Military Selective Service Act of 1967, as amended, 50 U.S.C.A.App. § 459 and 38 U.S.C. § 2021 et seq. and the applicable regulations found at 5 C.F.R. Part 353. On November 3, 1978, the FEAA reversed the agency action because the Postal Service had failed to consider plaintiff for positions other than his former position as a Level 5 distribution clerk for which he may be qualified despite his disability. Decision of FEAA (November 3, 1978) (R. 114-118). The FEAA noted:

We must find that the record clearly establishes that the appellant was not physically qualified for restoration to that position (Distribution Clerk) as of July 5, 1978, when the decision was made by the agency to deny his application for same. The record does not establish, however, that the appellant was physically disqualified for restoration under the criteria set forth in FPM, Chapter 353, Appendix B-4 to positions as set forth in 5 CFR 353.303 and 304. The medical evidence of record does not specifically address all of the position possibilities, agency-wide, to which the appellant was entitled to be considered for restoration as set forth above; nor does the agency otherwise address other position possibilities, other than light duty positions, even though specifically referred to 5 CFR 353.304 in our letter of October 16, 1978.

 (R. 116). *fn1" Therefore, the FEAA stated:

It is the decision of the Federal Employee Appeals Authority that the agency action is reversed. It is recommended that the agency restore the appellant to a position for which he qualifies after having again been medically examined and having had the criteria set forth in the FPM, Chapter 353, Appendix B-4 applied to all positions for which he is entitled to be considered pursuant to 5 CFR 353.303 and 304. This decision constitutes the agency's authority to take such recommended corrective action. Should such recommended corrective action result in the appellant being restored to employment, such restoration must be retroactive to the time frame prescribed by 5 CFR 353.302. Should such recommended corrective action result in a new determination that the appellant is medically disqualified for restoration, such new determination will be subject to a new appeal.

 (R. 117).

 Pursuant to the FEAA's remand, Bruce Dixon, Manager, Labor Relations, wrote to plaintiff on November 13, 1978, and requested "a complete medical file to include the following medical information:

1) history of your physical condition/hypertension
2) results of a current physical examination
3) results and conclusions of any and all pertinent studies
4) prognosis relative to your hypertensive condition
5) any and all limitations (to include duration of each) emanating from your hypertensive state."

 Letter from Dixon to Bey (November 13, 1978) (R. 110-111). On December 5, 1978, the Postal Service received the medical reports of plaintiff's treating physicians-the Veteran's Administration Outpatient Clinic ("V. A. Clinic")-which included progress notes of physical examinations from May through November, 1978, x-rays of plaintiff's heart taken on June 5, 1978, and a report of the electrocardiogram taken of plaintiff on June 18, 1978. (V.A. File No. 209 40 1371) (R. 77-90). These records revealed that plaintiff's "heart shows moderate enlargement to the left" (R. 84) and that high blood pressure readings were obtained from plaintiff during examinations with the V. A. Outpatient Clinic. (R. 85-89). *fn2"

 On December 6, 1978, Dr. Hermann wrote to the Personnel Office:

A review of the current information available indicates that the above named (Bey) has hypertensive cardiovascular disease with cardiac enlargement, abnormal EKG and poorly controlled blood pressure levels.
It is my opinion that he does not meet the requirements for any position in the Postal Service.

 Letter from Hermann to Personnel (Dec. 6, 1978) (R. 91). On December 28, 1978, Dixon advised plaintiff that:

After receipt (on December 5, 1978) of medical reports from your treating physician(s) (of the VA Outpatient Clinic) a review of two postal medical officers concluded that at this time you are physically unfit for any employment due to your continuing uncontrolled blood pressure, your cardiac enlargement and your abnormal EKG which evidenced left sided strain of the heart.
Our records indicate that subsequent to your March 28, 1978 application for reemployment, you were examined on five different occasions-March 29, April 18, May 3, June 8 and June 29, 1978-each time of which resulted in the same finding of uncontrolled elevated blood pressure. Records also disclose your claim that you were then under treatment for this condition. However, review by postal physicians of recent VA medical reports reflect no improvement of your physical condition.
Therefore, we regret to advise you that your request for re-employment-military must be disapproved since you physically disqualify as a result of failing to meet the physical employment ...

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