UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ELSON BARRERA,

Plaintiff-Appellant,

v.

No. 95-3077

JOHN H. DALTON, Secretary of the

Navy,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

James C. Cacheris, Chief District Judge.

(CA-95-1194-A)

Submitted: June 30, 1997

Decided: July 15, 1997

Before WIDENER and MURNAGHAN, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Roger K. Rutledge, RUTLEDGE & RUTLEDGE, P.C., Memphis,

Tennessee, for Appellant. Helen F. Fahey, United States Attorney,

Rachel C. Ballow, Assistant United States Attorney, Alexandria, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Elson Barrera appeals the district court's order entering summary

judgment for the Secretary of the Navy (Secretary) in this action

claiming employment discrimination on the basis of handicap, in violation of the Rehabilitation Act of 1973, 29 U.S.C.A. §§ 701-797b

(West 1994 & Supp. 1997) (Act). We find that Barrera is not an "individual with a disability" within the meaning of the Act, 29 U.S.C.A.

§ 706(8)(B). Therefore, we affirm.

I

Barrera was a civilian electronics technician assigned to the Naval

Air Station at Guantanamo Bay, Cuba. His tour began in 1988 and

was scheduled to expire in April 1992. In September 1990 doctors

diagnosed bladder and prostate cancer requiring surgery and periodic

follow-up monitoring such as biopsies, cystoscopy, and urinary cytology. Because Guantanamo Bay did not provide such services, Barrera

had to travel to the continental United States for care.

Initially, Barrera requested reassignment to a stateside facility.

However, his condition improved by late 1991. He requested an

extension of his tour at Guantanamo Bay for an additional year. He

was notified late in 1991 that his tour would not be extended. The

Navy maintains that this decision was based on its anticipated installation of a new radar system at Guantanamo. By the time the Navy

had trained Barrera on the new system, he would have had less than

one year left to serve, even if his tour were extended to five years as

he had requested. The Navy maintains that its decision not to extend

Barrera's tour had nothing to do with his medical condition, but was

based on the desire to train someone on the new system who would

be at Guantanamo Bay for several years.

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Barrera was given the option of separation from service or taking

a job under the Navy's Priority Placement Program (PPP). Veterans

who are civilian employees of the Navy apply for reassignment

through the PPP when they rotate to the continental United States

from overseas employment. Two jobs were available to Barrera

through the PPP: one in Tennessee and one in Oklahoma. The job in

Oklahoma was not offered to Barrera, apparently because he had a

nerve paralysis that affected a leg and the job required him to climb

tall radio towers. Barrera therefore took the job as a radio technician

in Tennessee, even though it involved a demotion, or at least a reduction in pay and benefits.

Barrera claimed in this action that the failure to extend his tour and

the subsequent reassignment constituted employment discrimination

on the basis of handicap, in violation of 29 U.S.C.A. § 794. At the

conclusion of a hearing on the Secretary's motion for summary judgment, the district court determined that the Act did not protect Barrera

because his cancer did not affect a major life activity. The court further found that, even if Barrera did qualify under the Act, the Navy

had demonstrated a legitimate, nondiscriminatory reason for failing to

retain him at Guantanamo Bay. Barrera appeals.

II

The Act prohibits an employer from discriminating against a "qualified individual with a disability" on the basis of that disability. 29

U.S.C.A. § 794(a). To establish a violation of the Act, a plaintiff must

establish that: (1) he has a disability; (2) he is otherwise qualified for

the employment in question; and (3) he was excluded from employment solely because of his disability. Doe v. University of Md. Med.

Sys. Corp., 50 F.3d 1261, 1264-65 (4th Cir. 1995).

For purposes of § 794, an "individual with a disability" is "any person who (I) has a physical or mental impairment which substantially

limits one or more of such person's major life activities, (ii) has a

record of such an impairment, or (iii) is regarded as having such an

impairment." 29 U.S.C.A. § 706(8)(B). Work is a major life activity.

Gupton v. Virginia, 14 F.3d 203, 205 (4th Cir. 1994).*

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*Work is the only major life activity allegedly affected by Barrera's

medical problem.

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Barrera admitted that he had never missed any scheduled work.

Further, he stated that his medical problems had never affected his job

performance. Given these admissions, Barrera cannot qualify as an

individual with a disability under § 706(8)(B)(I) or (ii). Barrera contends, however, that his superiors perceived him as having an impairment that substantially limited his ability to work, and that he

therefore falls under the protection of § 706(8)(B)(iii). His transfer to

a similar, though less lucrative, job in Tennessee defeats this argument. We have previously observed "that an employer regards an

employee as [disabled] in his . . . ability to work by finding the

employee's impairment to foreclose generally the type of employment

involved." Forrisi v. Bowen, 794 F.2d 931, 935 (4th Cir. 1986). Barrera was an electronics technician at Guantanamo Bay; he was an electronic measurement equipment mechanic in Tennessee. This transfer

shows that the Navy did not regard Barrera's condition as foreclosing

his ability to do the general type of work he performed at Guantanamo Bay.

III

Having determined that Barrera is not an "individual with a disability" under the Act, there is no need to address the remaining issues

on appeal. We accordingly affirm the decision of the district court.

We dispense with oral argument because the facts and legal arguments are adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED

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