William J. Heino, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (New York Metro Area), Agency.

Equal Employment Opportunity CommissionJan 28, 2002
01994965 (E.E.O.C. Jan. 28, 2002)

01994965

01-28-2002

William J. Heino, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (New York Metro Area), Agency.


William J. Heino v. United States Postal Service

01994965

January 28, 2002

.

William J. Heino,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(New York Metro Area),

Agency.

Appeal No. 01994965

Agency Nos. 1A-111-0098-98; 1A-111-0117-98

Hearing Nos. 160-99-8417X; 160-99-8418X

DECISION

Complainant timely initiated an appeal from the agency's final

decision concerning his equal employment opportunity (EEO) complaints

of unlawful employment discrimination in violation of Section 501 of

the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29

U.S.C. � 791 et seq.<1> The appeal is accepted for the Commission's de

novo review pursuant to 29 C.F.R. � 1614.405. For the following reasons,

the Commission affirms the agency's final decision.

The record reveals that complainant, an Automotive Mechanic at the

agency's Queens, New York Processing and Distribution Center, filed two

formal EEO complaints with the agency alleging that he was discriminated

against on the of basis of disability (broken hand) when he was denied

work between March 24, 1998 and May 4, 1998 and in reprisal for prior

protected activity arising under the Rehabilitation Act when he was

offered a rehabilitation position that was not within his medical

restrictions, in a different craft and on a different tour.<2> At

the conclusion of the investigation, complainant received a copy of the

investigative report and requested a hearing before an EEOC Administrative

Judge. The Administrative Judge issued a decision without a hearing,

finding no discrimination.

The Commission's regulations allow an Administrative Judge to issue

a decision without a hearing when he or she finds that there is no

genuine issue of material fact. This regulation is patterned after the

summary judgment procedure set forth in Rule 56 of the Federal Rules

of Civil Procedure. The United States Supreme Court has held that

summary judgment is appropriate where a court determines that, given

the substantive legal and evidentiary standards that apply to the case,

there exists no genuine issue of material fact. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986).

Concerning the denial of work between March 24, 1998 and May 4, 1998, the

Administrative Judge found that complainant was requesting accommodation,

in the form of a temporary light duty assignment, as a result of

fracturing his left hand in a car accident. The agency denied him the

assignment. The Administrative Judge further found that complainant

did not offer evidence to establish that the medical restrictions

resulting from the fracture were of sufficient duration to render him

substantially limited in any major life activity. Concerning the offer

of a rehabilitation position, the Administrative Judge found that the

agency was engaged in an ongoing program to reassess rehabilitation

employees to determine if they had reached maximum rehabilitation, that

the position offered to complainant was within his medical restrictions,

and that complainant failed to establish a nexus between his prior

protected activity and the offer.

On appeal, complainant contends that he had a right to light duty work

after his auto accident and a right to remain in the rehabilitation

assignment he had held since 1988. The agency did not submit a response

to the appeal.

After a careful review of the record, the Commission finds that it was

appropriate for the Administrative Judge to issue a decision without

holding a hearing in the instant matter. In reaching this conclusion,

we note that complainant did not dispute that his hand fracture was a

temporary condition or that the agency undertook to assign complainant

to a rehabilitation position, within his medical restrictions, that

was more productive than the one he occupied. We further find that

the Administrative Judge correctly concluded that complainant did not

establish a prima facie case of disability discrimination because the

evidence did not establish that the limitations resulting from the

fracture were sufficiently long term, or even potentially long term,

to render him an individual with a disability within the meaning of the

Rehabilitation Act. See Deese v. United States Postal Service, EEOC

Appeal No. 01980889 (August 2, 2001). We also find that complainant

failed to establish a prima facie case of reprisal discrimination because

he failed to present evidence from which a reasonable fact finder could

infer retaliatory animus. See Shapiro v. Social Security Administration,

EEOC Request No. 05960403 (December 6, 1996) (citing McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973)). Accordingly, we discern no

basis to disturb the Administrative Judge 's decision, and we affirm

the agency's final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. In the absence of a legible postmark, the

request to reconsider shall be deemed timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)

You have the right to file a civil action in an appropriate United States

District Court within ninety (90) calendar days from 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. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

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

January 28, 2002

__________________

Date

1 The 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 Complainant held a rehabilitation position for impairments unrelated

to his fractured hand.