01A10710
06-07-2002
Thomas P. Kulisch, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Northeast Area), Agency.
Thomas P. Kulisch v. United States Postal Service
01A10710
June 7, 2002
.
Thomas P. Kulisch,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 01A10710
Agency No. 1B-029-0008-99
Hearing No. 160-99-8701X
DECISION
Complainant timely initiated this appeal from the agency's final
decision 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. Complainant alleged in his complaint that he was subjected
to unlawful discrimination on the basis of disability (perceived) when
(1) on November 5, 1998, he was informed that his bid on Job I.D. number
5878419 was disallowed, and (2) he was issued a letter dated November
21, 1998 directing him not to push or pull loaded general purpose mail
carriers (GPMC). At the conclusion of the agency's investigation into
his complaint, complainant received a copy of the investigative report
and requested a hearing before an EEOC Administrative Judge (AJ).
The agency submitted a motion for a decision without a hearing, and
complainant submitted a memorandum in opposition to the agency's motion.
The AJ granted the agency's motion and issued a recommended decision
without a hearing, finding no discrimination.
The AJ found that the issuance of a decision without a hearing was
appropriate, as there existed no genuine issue as to any material fact.
As for claim (1), the AJ found that while the agency did regard
complainant as an individual with a disability, complainant did not
introduce any evidence which would suggest that the agency was in
any way motivated in its action by a discriminatory animus toward
complainant's alleged perceived disability status. As for claim (2),
the AJ found that despite complainant's assertions that he can safely
perform the function of pushing GPMCs, the record clearly established
that he was placed on medical restrictions which limited the amount of
weight he was able to push or pull, and the instruction to not push or
pull loaded GPMCs was a �reasonable exercise of managerial authority
calculated to comply with the complainant's medical restrictions.� The
AJ further found that there was no evidence in the record that showed
that the GPMC instruction was an act of disability discrimination.
The agency implemented in full the AJ's recommended decision.
On appeal, the Commission finds that the AJ's issuance of a decision
without a hearing was appropriate, as no genuine dispute of material
fact exists. We also find that the AJ's decision properly summarized
the relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence in the manner most favorable
to complainant, we note that complainant failed to present evidence that
any of the agency's actions were motivated by a discriminatory animus
towards his alleged perceived disability. Even assuming for the purposes
of this appeal that complainant established that he was regarded by the
agency as an individual with a disability, the agency provided legitimate,
nondiscriminatory reasons for its actions, and complainant failed to
prove by a preponderance of the evidence that those reasons were merely
pretext for unlawful discrimination. Complainant has therefore failed
to carry his �ultimate burden of persuading the trier of fact that the
[agency] intentionally discriminated� against him. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 143 (2000).
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed herein, it is the decision of the Commission
to AFFIRM the agency's FAD.
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
June 7, 2002
Date