0120100226
06-21-2011
Kenneth D. O'Sullivan, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Kenneth D. O'Sullivan,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120100226
Hearing No. 480-2008-00135X
Agency No. 1E-891-0026-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 10, 2009 final action concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the period at issue, Complainant was employed as a Mail Processing Clerk, PS-05, at the Agency's Las Vegas, Nevada Processing and Distribution Center.
On April 18, 2007, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On July 27, 2007, Complainant filed the instant formal complaint. Therein, Complainant claimed that he was the victim of unlawful employment discrimination on the basis of disability (visual impairment) when:
1. as of April 16, 2007 and continuing, he has not been provided with opportunities for upward mobility including performing as a 204B and attending the Associate Supervisor's Program (ASP); and
2. in 2005, he was denied a typewriter or computer when sitting for the ASP test.
Following the investigation into his formal complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The Agency filed a Motion for a Decision without a Hearing on May 2, 2008. Therein, the Agency argued that regarding claim 1, Complainant did not establish a prima facie case of disability discrimination. Regarding claim 2, the Agency argued that this claim should be dismissed pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds of untimely EEO Counselor contact. The Agency argued that Complainant did not initiate EEO Counselor contact until April 18, 2007, which was well beyond the 45-day limitation period from the time he alleged he was not provided reasonable accommodation for taking the 2005 ASP test.
Complainant filed a Response to the Agency's Motion for Summary Judgment on May 19, 2008. The AJ issued a decision without a hearing on August 27, 2009, finding no discrimination.
In her decision, the AJ adopted and incorporated the Agency's statement of the material facts as set forth in the Agency's Motion for Summary Judgment. The AJ found that in regard to claim 1, Complainant did not establish a prima facie case of disability discrimination because Complainant failed to demonstrate that similarly situated employees outside of his protected group were treated more favorably under similar circumstances.1 The AJ further found assuming arguendo that Complainant established a prima facie case of disability discrimination, the Agency nevertheless articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext for discrimination.
The AJ noted that the Plant Manager (PM) met with Complainant in February 2007, to discuss advancement opportunities. The AJ further noted that PM stated that he told Complainant there was an upcoming ASP class but Complainant failed to submit an application for the class in a timely manner. The AJ noted that a review of the record reflects that the subject ASP class was cancelled so no one was given an opportunity for advancement under the ASP Program.
PM stated that on March 7, 2007, Complainant "told me he would like to become an acting supervisor. He also requested I check out for him why he was not selected for the ASP program a couple years back. I told him I would and would let him know what I find out. On May 22nd [2007], after performing my investigation I met with [Complainant] and relayed to him my findings. At this time I also offered him a detail as an acting supervisor. I brought the [Manager Distribution Operations] with me so we could outline the specifics of the detail. [Complainant] told me he would get back to me. On June 14th [2007] I received a memo from [Complainant] rejecting my offer."
The record contains a copy of Complainant's memorandum dated June 14, 2007 to PM. Therein, Complainant stated "this short note is in regard to the offer you made during our meeting of May 22. I have decided against training and working as a 204B, at this time."
Regarding claim 2, the record reflects that Complainant sat and took the ASP test in 2005. The record reflects in the instant complaint, Complainant stated that he was granted accommodation he sought which was unlimited time to take the written portion of the test. Specifically, Complainant stated that he was initially informed by the instructor "that no such accommodation was ever allowed, and that I would simply have to do my best. Later, after some good advice from an MDO, and with some effort on my part, I was ultimately granted the accommodation I sought. I turned in my completed application on time and was tested soon after. I achieved grades of 'excellent' on both the math and reasoning portions but failed the writing test with a grade of 'no demonstration'...while it is true that I took the test free of time constraints, I was not free of the intimidation, pressure, or anxiety, over being tested in a medium that lies well outside my everyday experience."2
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ erred in issuing a summary judgment because there are material facts at issue. For instance, Complainant argues that the AJ "committed harmful procedural error" by failing to address his Motion to Compel Discovery. Complainant further argues that he attempted to show PM's explanations "were not believable, during discovery Complainant made several relevant inquiries into the meaning of the Plant Manager's responses in his sworn affidavit." Moreover, Complainant argues that "there should not have been a finding by the administrative judge, in granting the agency's motion, that the Complainant failed to prove pretext when she failed to address Complainant's attempts to acquire the type of evidence or responses, that could show pretext."
ANALYSIS AND FINDINGS
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. 29 C.F.R. � 1614.109(g). 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's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. 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. at 255. An 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. If a case can only be resolved by weighing conflicting evidence, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition.
After a review of the record in its entirety, including consideration of all statements submitted on appeal, we can discern nothing in the record reflecting the discriminatory animus motivated the Agency actions in the instant claim. Therefore, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final action because the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that unlawful discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 21, 2011
__________________
Date
1 For purposes of this analysis, we assume without finding that Complainant was a qualified individual with a disability.
2 The Commission notes that while the AJ did not address claim 2 in her decision, the record contains sufficient evidence for us to adjudicate Complainant's claim.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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