01A34747_r
12-01-2003
Thomas P. Kelly v. United States Postal Service
01A34747
December 1, 2003
.
Thomas P. Kelly,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(New York Metro Area)
Agency.
Appeal No. 01A34747
Agency No. 1A-126-0086-97
Hearing No. 160-98-8629X
DECISION
Complainant timely initiated an appeal from the agency's final
order concerning 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.
In his formal complaint, complainant alleged that the agency subjected
him to disparate treatment on the basis of disability when it denied
his request for a transfer to Mid Hudson P & D Center.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination because complainant failed to establish a prima
facie case for his claim. The agency fully implemented the AJ's 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 procedures
set forth in Rule 56 of the Federal Rules of Civil Procedure. Summary
Judgment is proper when "material facts are not in genuine dispute." 29
C.F.R. 1614.109(g). Only a dispute over facts that are truly material
to the outcome of the case should preclude summary judgment. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (only disputes over
facts that might affect the outcome of the suit under the governing law,
and not irrelevant or unnecessary disputes, will preclude the entry of
summary judgment). For example, when a complainant is unable to set
forth facts necessary to establish one essential element of a prima
facie case, a dispute over facts necessary to prove another element
of the case would not be material to the outcome. Celotex v. Catrett,
477 U.S. 317, 322-23 (1986). EEOC MD-110, at 7-15 November 9, 1999.
The Commission will apply a de novo standard of review when it reviews
an AJ's decision to issue a decision without a hearing pursuant to 29
C.F.R. 1614.109(g). See EEOC MD-110, at 9-16.
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability, and there is no direct evidence of discrimination, we
apply the burden-shifting method of proof set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens
Village Committee for Mental Health for Jamaica Community Adolescent
Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929,
933-34 (D.C. Cir. 1999). Under this analysis, in order to establish
a prima facie case, complainant must demonstrate that: (1) s/he is an
"individual with a disability"; (2) s/he is "qualified" for the position
held or desired; (3) s/he was subjected to an adverse employment action;
and (4) the circumstances surrounding the adverse action give rise to
an inference of discrimination. Lawson v. CSX Transportation, Inc.,
245 F.3d 916 (7th Cir. 2001). The burden of production then shifts to
the agency to articulate a legitimate, non-discriminatory reason for
the adverse employment action. In order to satisfy her burden of proof,
complainant must then demonstrate by a preponderance of the evidence
that the agency's proffered reason is
pretext for unlawful discrimination.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. Assuming arguendo that
complainant established that he is an individual with a disability,
we find that complainant failed to present any evidence from which an
inference of discrimination on the basis of disability could be raised,
such as a similarly situated non-disabled employee who was treated more
favorably than he under similar circumstances. Therefore, we find that
he has failed to establish a prima facie case of discrimination on the
basis of disability.<1>
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate, see Petty v. Department of Defense, EEOC Appeal
No. 01A24206 (July 11, 2003), and a preponderance of the record evidence
does not establish that discrimination occurred.
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
_Decembe 1, 2003_________________
Date
1We note that in his transfer request dated May 22, 1995, complainant
stated that he sought a transfer in order to reduce his commuting time
and spend more time with his family. As such, we find that complainant's
complaint does not allege a denial of a reasonable accommodation,
only disparate treatment on the basis of a disability.