The opinion of the court was delivered by: Munson, Senior District Judge.
MEMORANDUM — DECISION AND ORDER
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
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.