UNPUBLISHED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Affirmed by unpublished per curiam opinion.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, Vir-
ginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit.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 vio-
lation 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 "indi-
vidual 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 cytol-
ogy. 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 instal-
lation 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 reduc-
tion 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 judg-
ment, the district court determined that the Act did not protect Barrera
because his cancer did not affect a major life activity. The court fur-
ther 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 "qual-
ified 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 employ-
ment 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 per-
son 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).*
_________________________________________________________________
*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 con-
tends, however, that his superiors perceived him as having an impair-
ment 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 argu-
ment. 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). Barr-
era was an electronics technician at Guantanamo Bay; he was an elec-
tronic 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 Guanta-
namo Bay.

III

Having determined that Barrera is not an "individual with a disabil-
ity" 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 argu-
ments are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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