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ROSIAK v. U.S. DEPT. OF THE ARMY

August 28, 1987

Thomas E. Rosiak, Plaintiff
v.
U.S. Department Of The Army, Defendant



The opinion of the court was delivered by: CONABOY

 Richard P. Conaboy, United States District Judge.

 I. Procedural History

 Plaintiff, Thomas Rosiak, filed the above-captioned matter for reinstatement of employment at Tobyhanna Army Depot (Tobyhanna) and damages due under the Rehabilitation Act of 1973, 29 U.S.C. §§ 791 and 794, alleging that the United States Department of the Army improperly terminated his employment based on his physical handicap.

 By way of background, the record reveals that Plaintiff Rosiak began civilian employment at Tobyhanna on or about June 16, 1981. Around October, 1984, Rosiak began experiencing health related problems in his capacity of a carpentry worker following an increased exposure to contact cement.

 On July 26, 1985, Plaintiff Rosiak received a removal notice from the Department of the Army which stated that Mr. Rosiak was unable to perform the duties related to his position as carpentry worker, W6-07, and he was being removed from that position. By letter dated August 29, 1985 Plaintiff Rosiak was removed from his position at Tobyhanna effective September 6, 1985. Thereafter, Mr. Rosiak appealed his removal to the Merit Systems Protection Board ("MSPB"). Hearings were held on the appeal and on January 7, 1986, Frederick L. Fishman, Presiding Official, affirmed the Agency's action. On February 24, 1986, Rosiak filed a petition for review of this determination to the full MSPB. By opinion and order dated July 1, 1986, 31 M.S.P.R. 140, the MSPB affirmed the initial decision and sustained Tobyhanna's removal of Rosiak.

 Thereafter, on August 11, 1986, Rosiak filed the instant complaint seeking reinstatement of his employment at Tobyhanna and damages claiming that his removal violated the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. Rosiak alleges that due to a work related condition which renders him unable to be exposed to hydrocarbon-type fumes he is a "handicapped individual" within the meaning of the Act (complaint at para. 6); that he was terminated solely by reason of that physical handicap (see complaint at para. 8); that he was otherwise qualified in spite of his handicap because he could perform the essential duties of a carpenter with reasonable accommodations by Tobyhanna (see Complaint paras. 9 and 10); and that his removal was wrongful and without just cause (see Complaint para. 11). Presently before this Court is the Defendant's motion for summary judgment which has been responded to and is currently ripe for disposition.

 By reason that we find the Plaintiff is not a "qualified handicapped employee" within the meaning of the Rehabilitation Act of 1973, we will grant the Defendant's motion for summary judgment.

 II. Summary Judgment Standard

 Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(b). Any doubts as to the existence of such issues must be resolved against the moving party and all inferences to be drawn from the underlying facts viewed in the light most favorable to the party opposing the motion. Hollinger v. Wagner Mining Equipment Corp., 667 F.2d 402, 405 (3d Cir. 1981). The mere presence in the complaint of an allegation is not sufficient by itself to avoid summary judgment. Sound Ship Bldg. Corp. v. Bethlehem Steel Co., 533 F.2d 96, 100 (3d Cir.) cert. denied, 429 U.S. 860, 50 L. Ed. 2d 137, 97 S. Ct. 161 (1976). Where the movant relies upon affidavits, depositions or answers to interrogatories to show that there is no genuine issue of material fact, the non-moving party, in the context of a federal discrimination case, may survive the motion only by showing sufficient evidence supporting the claimed factual dispute to require a jury or judge to resolve at trial the parties' differing version of the truth. Jackson v. University of Pittsburgh, 826 F.2d 230, slip op. at 5 (3d Cir. 1987).

 III. Statement of Facts

 From our review of the briefs in this matter and the sworn testimony at the Merit Systems Protection Board (MSPB) hearing, it appears that the first evidence of a physical problem with Mr. Rosiak occurred on October 19, 1984 when Donald Carroll, Rosiak's immediate supervisor in charge of the carpentry section at Tobyhanna, first noticed erratic behavior by Rosiak on the job. Mr. Carroll observed Rosiak kicking his legs, dancing up and down and carrying on in a loud tone of voice. (See Hearing transcript, Doc. 10, Exh. 14, hereinafter referred to as "T" at 101-105). Carroll instructed Rosiak to go to the Tobyhanna health clinic and while accompanying him there Carroll asked Rosiak the nature of his problem. Mr. Rosiak responded that he could not work around contact cement (T 106).

 On the next work day, October 22, 1984, Carroll observed a continuation of Rosiak's erratic behavior, which he testified was "intolerable" for a person working in the carpentry section, and which caused him to refer Rosiak to the health clinic again (T 111). Rosiak told the clinic staff he was on medication, and had difficulty breathing with the mask he had to wear at work. Nevertheless, Mr. Rosiak refused to sign a medical release form at that time (T 39, 251-252).

 On October 23, 1984, Carroll observed that Rosiak was unruly, uncooperative, unproductive and continued not to complete projects assigned to him (T 112). Rosiak appeared at the health clinic on that date and was observed to be engaging in the same erratic behavior as before, which he said was caused by the contact cement he was working with (T 40).

 On October 25, 1984, Rosiak complained to Carroll of being dizzy and having pains in his chest (T 112), and was taken to the health clinic and from there, to the Mercy Hospital in Scranton, Pennsylvania where he was admitted and later released on October 30, 1984. Rosiak did not return to work until November 19, 1984 (T 112).

 When Rosiak returned to Tobyhanna on November 19, 1984, he advised Mr. Carroll that he could not be around dust or fumes. Accordingly, Mr. Carroll referred him to the health clinic for a determination as to whether he was fit for duty (T 113). At the clinic, Rosiak submitted a note to the clinic staff from his personal physician, Richard E. Colarusso, which stated that he be carried on light duty for two weeks and have "no exposure to fumes or dust under any circumstances". (Doc. 10, Exh. 1). Although the clinic staff received no diagnosis from Dr. Colarusso as to Mr. Rosiak's condition, the health clinic responded by ordering that Rosiak should be restricted from dust and cement and from lifting over 44 pounds (T 113, and Exhibit 2.2).

 In light of the above, Carroll moved Rosiak on November 19th from the main capentry shop into warehouse no. 4 with instructions to wear a respirator and to perform work that would not involve fumes or dust, yet Mr. Rosiak's erratic conduct continued and his work problems were not corrected (T 114-116). On December 4, 1984, Carroll requested Tobyhanna to reassign Rosiak because of the medical restriction that he ...


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