0120152335
03-24-2016
Garth N.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Garth N.,1
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120152335
Agency No. DON (MC) 15-67856-00793
DECISION
On June 25, 2015, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated May 26, 2015, dismissing his 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant served the Agency as a Marine Corps Junior Reserve Officers' Training Corps (MCJROTC) Instructor (Marine Instructor) at Jean Ribault Senior High School in Jacksonville, Florida.
On February 26, 2015, Complainant filed a formal complaint alleging that the Agency discriminated against him based on his disability (paralyzed from the waist down) and reprisal for prior protected EEO activity under the Rehabilitation Act (requesting a reasonable accommodation) when effective November 30, 2014, the Agency rescinded his certification as a MCJROTC Marine Instructor on the ground that he did not meet the physical qualification standards therefor, resulting in his termination.2
Complainant started working as a MCJROTC Marine Instructor in June 2009. He was involved in a motorcycle accident in February 2014, which left him paralyzed from the waist down.
The Agency dismissed the complaint for failure to state a claim. It reasoned that Complainant was not an employee of the Agency, and the alleged discrimination arose in the context of his military related duties.
On appeal, Complainant submits a detailed brief opposing the FAD. In opposition to the appeal, the Agency submits a detailed brief supporting the FAD.
ANALYSIS AND FINDINGS
McNair v. Department of the Navy, EEOC Appeal No. 0120141034 (July 11, 2014) is dispositive of Complainant's appeal. Therein, the complainant served the Agency as a MCJROTC Instructor at a high school in Guam. He alleged that he was discriminated against based on his disability when in July 2013, the Agency did not extend or recertify him as a Marine Instructor (following a stoke), resulting in his separation. We found that the alleged discrimination arose in the context of the complainant's military duties, and hence affirmed the dismissal.
Based on a review of the facts in the case before us - in terms of the alleged discrimination arising in the context of Complainant's military duties - this case is indistinguishable from McNair.
Accordingly, the FAD is AFFIRMED.3
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
March 24, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 In its FAD, the Agency wrote that Complainant also alleged discrimination based on his sex and age. On appeal, Complainant clarifies he did not allege discrimination on those bases.
3 As we affirm on the above basis, we need not rule on whether the Agency jointly employed Complainant under common law.
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0120152335