01983716
07-24-2001
Salvatore L. D'Alessandro, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Salvatore L. D'Alessandro v. United States Postal Service
01983716
July 24, 2001
.
Salvatore L. D'Alessandro,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01983716
Agency No. 1A-113-0015-97
Hearing No. 160-97-8450X
DECISION
The complainant timely initiated an appeal from the agency's final
decision concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and
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. The complainant alleges he was discriminated against
on the bases of his disability and reprisal for prior EEO activity when
on October 30, 1996, management reassigned him to a Rehab Distribution
Clerk position.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that the complainant, a Modified Vehicle Maintenance
Facility (VMF) Mechanic, PS-06, worked at the agency's Staten Island,
New York facility, which had a complement of fifteen employees, three of
which or 20%, including the complainant, were on limited duty. The record
shows that the agency reassigned the complainant and one other limited
duty employee to the Main Post Office within the same facility with
the same hours of work, non-scheduled days, rate of pay and seniority
benefits because there was not enough work within their limitations
to keep them at the VMF. The agency admits that the complainant has
a partial permanent disability which does not allow him to perform the
full duties of his Mechanic position. The complainant does not allege
that the reassignment was not within his medical restrictions.
Without a hearing, an Administrative Judge (AJ), assuming that the
complainant had made a prima facie case of retaliation, found that
the agency had articulated legitimate non-discriminatory reasons for
its reassignment of the complainant. The AJ further found that the
complainant presented no persuasive evidence that the reassignment
was motivated by discriminatory animus based on his prior EEO activity.
Additionally, the AJ found that the complainant was a qualified individual
with a disability under the Rehabilitation Act and that the agency
had met its burden to reasonably accommodate the complainant's medical
restrictions. Accordingly, the AJ found that the complainant had not
been discriminated against on the basis of his disability nor had the
agency retaliated against him for his prior EEO activity. The agency's
final decision implemented the AJ's decision.
Complainant makes no new contentions on appeal, and the agency requests
that we affirm its final decision.
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. If a case can only be resolved by
weighing conflicting evidence, summary judgment is not appropriate.
In the context of an administrative proceeding under Title VII, an AJ
may properly consider summary judgment only upon a determination that
the record has been adequately developed for summary disposition.
After a careful review of the record, the Commission finds that there is
no genuine issue of material fact in this case and that the AJ properly
determined that summary judgment was appropriate. The agency need not
maintain the complainant in a position where there is not enough work
within his medical restrictions. Here, the record shows that the agency
reassigned the complainant to an equivalent position within his medical
restrictions because there was not enough work in the VMF positions
for either the complainant or another employee on light duty who was
also reassigned to the Main Post Office. We note that the complainant
failed to present evidence that any of the agency's actions were in
retaliation for the complainant's prior EEO activity or were motivated
by discriminatory animus toward complainant's physical disability.
Accordingly, we discern no basis to disturb the AJ's decision.
Therefore, after a careful review of the record, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M701)
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
July 24, 2001
__________________
Date