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November 16, 2001


The opinion of the court was delivered by: Munson, Senior District Judge.



The plaintiff, Patrick Kinsella, was born with Coloboma of both eyes, rendering him legally blind. His vision, without correction, is 20/600 in his right eye and 20/700 in his left eye. With correction, plaintiff's vision is 20/200 in each eye.

In 1989, plaintiff began working at Rome Laboratories at Griffiss Air Force Base ("Griffiss") as a GS-350-4 copier/duplicator operator ("GS-4") and remained in this position until his termination in 1994 as part of a Reduction in Force ("RIF"). During his employment, he maintained and operated a high-speed Xerox 9900 copier, a Kodak color copier, a stapler/binder, a drill press, and a laser cutter.

On April 2, 1993, plaintiff initially requested EEO counseling for alleged handicap discrimination. Plaintiff claimed that he was discriminated against because he was issued a letter of caution and was threatened with other disciplinary action. On April 12, 1993, plaintiff was advised of his rights and responsibilities and on May 6, 1993, a Notice of Final Interview was issued by the Department of the Navy, Consolidated Civilian Personnel Office. The notice informed plaintiff that he had 15 days in which to file a complaint. On May 13, 1993, the EEO counselor issued a report identifying the issues presented by plaintiff as: (1) he received a letter of caution and was threatened with other disciplinary action; and (2) management was trying to transfer him back to the Air Force. Plaintiff did not follow up on the Notice of Final Interview and file a formal complaint.

On December 1, 1994, plaintiff requested additional EEO counseling for alleged discrimination on November 28, 1994, when he was told that he did not qualify for a WG-4402-7 bindery machine operator ("WG-7") position during a RIF. On January 12, 1995, plaintiff filed an EEO complaint alleging discrimination based upon a physical handicap of legal blindness.

On February 15, 1995, the Department of the Navy, Defense Printing Service Detachment Office ("DPSDO") issued a letter acknowledging plaintiffs complaint and accepting for investigation the issue of the alleged discrimination occurring when plaintiff was told on November 28, 1994 that he did not qualify for one of the WG-7 positions that would remain at the DPSDO facility at Griffiss following the RIF. Two additional issues were rejected for investigation: (1) management's failure to reclassify plaintiffs position as a GS-4 to a WG-7 because of physical disability discrimination; and (2) an alleged statement made on April 9, 1992 by Robert Feller, plaintiffs supervisor, that "a blind guy is not going to be working at our work site." The rejection was based on the fact that plaintiff raised these issues during the EEO counseling session on April 2, 1993, but failed to file a formal complaint.

On July 21, 1999, plaintiff filed a complaint with this court alleging that: (1) he had been denied promotion and continued employment because of his disability in violation of the Rehabilitation Act; (2) defendant intentionally caused plaintiff to suffer severe emotional distress; and (3) plaintiff suffered lost wages and benefits as a result of his failure to be promoted and/or reclassified.

Currently before this court is defendant's motion for summary judgment dismissing the complaint pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has entered opposition to this motion.


I. Standard for Summary Judgment

The standard for summary judgment is well-settled. Rule 56 allows for summary judgment where the evidence demonstrates that "there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Summary judgment is properly regarded as an integral part of the Federal Rules as a whole, which are designed "to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986) (quoting Federal Rule of Civil Procedure 1). A motion for summary judgment may be granted when the moving party carries its burden of showing that no triable issues of fact exist. See Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990). In light of this burden, any inferences to be drawn from the facts must be viewed in the light most favorable to the non-moving party. See id.; United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam). If the moving party meets its burden, the burden shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). To defeat a motion for summary judgment, however, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A dispute regarding a material fact is genuine "if evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. When reasonable minds could not differ as to the import of the evidence, then summary judgment is proper. See id. at 250-251, 106 S.Ct. at 2511.

Summary judgment is appropriate in discrimination cases for "the salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). The "impression that summary judgment is unavailable in discrimination cases is unsupportable." McLee v. Chrysler Corp., 38 F.3d 67, 68 (1994). The Supreme Court has also recently reiterated that the trial courts should not "treat discrimination differently from other ultimate questions of fact." Reeves v. Sanderson Plumbing Products, ...

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