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.