01990058
12-12-2001
Bernard Ivory, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Bernard Ivory v. United States Postal Service
01990058
12-12-01
.
Bernard Ivory,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01990058
Agency No. 4-C-440-0298-97
Hearing No. 220-98-5106X
DECISION
Complainant timely initiated an appeal from the agency's final decision,
dated September 4, 1998. The decision concerned his equal employment
opportunity (EEO) complaint 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. The appeal is accepted pursuant
to 29 C.F.R. �1614.405. Complainant alleged he was discriminated against
on the bases of disability (back, diabetes and depression) when:
on an unspecified date in 1995, he inquired regarding the status of
Carrier and Mail Handler positions for which he was interviewed in May,
1994; and
after being interviewed for a position of Laborer / Custodial in October
of 1995, he was told that he was not recommended and his name had been
removed from the eligibility list.
For the following reasons, the Commission affirms the agency's final
decision, dated September 4, 1998.
The record reveals that complainant was an applicant for
employment at one of the agency's Cleveland Ohio facilities (location
unspecified). Complainant took the Cleveland District Battery Examination
in March 8, 1994; and his name was entered on the Mail Handler Notice of
Rating Eligibility register on March 21, 1994. By complainant's request,
his name was continued on the register, but he was not selected for any
position. By letter dated January 3, 1996, the agency Human Resources
Specialist sent complainant a letter advising complainant that his
application for the position of Custodian was incomplete and that there
were discrepancies noted on complainant's application for the Custodian
position. Complainant filed a letter with the agency on March 14, 1997,
alleging that the agency had discriminated against him as referenced
above. At the conclusion of the investigation, complainant received a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Based on the investigative record and without
a hearing, the AJ issued a decision finding no discrimination. The AJ
concluded that complainant was an individual with a disability on the
basis of his diabetes, but his alleged disabilities were not known by the
agency and could not have been considered as a reason not to hire him.<1>
The agency's final September 4, 1998 decision adopted the AJ's recommended
decision with regard to his finding that complainant failed to timely
initiate EEO contact. The FAD did not articulate any additional
legitimate, nondiscriminatory reasons for its actions, but, instead,
the agency closed the record with a finding of no discrimination.<2>
The agency stated that, assuming arguendo that the complainant's contact
with an EEO Counselor was timely, the agency agreed that the entire
evidence of record does not support the allegation of discrimination
based on disability.
Complainant makes no new contentions on appeal; and the agency requests
that we affirm its final September 4, 1998 decision.
The Commission's regulations allow an AJ 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 U.S. 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). In ruling on a motion for summary judgment, a court does not
sit as a fact finder. Id. The evidence of the non- moving party must
be believed at the summary judgment stage and all justifiable inferences
must be drawn in the non moving party's favor. Id. A disputed issue of
fact is "genuine" if the evidence is such that a reasonable fact finder
could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103,
105 (1st Cir. 1988). A fact is "material" if it has the potential to
affect the outcome of the case. For purposes of analysis, we assume that
complainant was an individual with a disability. We agree with the AJ's
finding that an inference of discrimination does not arise in this case
since the record does not show that the agency had notice of complainant's
disabilities or acted on the basis of complainant's disabilities.
We find that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We discern
no basis to disturb the FAD which relied on the AJ's decision. Therefore,
after a careful review of the record, arguments and evidence not
specifically addressed in this decision, we AFFIRM the agency's final
September 4, 1998 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_12-12-01_________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1We also note that the AJ recommended that the subject complaint be
dismissed as untimely filed, inasmuch as the AJ found that complainant
failed to contact the EEO counselor in a timely fashion. The record is
unclear on this point; and we affirm the decision on the merits.
2Neither the AJ, nor the agency, made any findings with regard to
pretext, relying instead on the failure to establish that discrimination
had occurred.