Thomas P. Kelly, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (New York Metro Area) Agency.

Equal Employment Opportunity CommissionDec 1, 2003
01A34747_r (E.E.O.C. Dec. 1, 2003)

01A34747_r

12-01-2003

Thomas P. Kelly, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (New York Metro Area) Agency.


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.