Bernard Ivory, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 12, 2001
01990058 (E.E.O.C. Dec. 12, 2001)

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.