Gilbert A. Chong, Jr., Complainant,v.Richard J. Danzig , Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionMar 10, 2000
01970633 (E.E.O.C. Mar. 10, 2000)

01970633

03-10-2000

Gilbert A. Chong, Jr., Complainant, v. Richard J. Danzig , Secretary, Department of the Navy, Agency.


Gilbert A. Chong, Jr. v. Department of the Navy

01970633

March 10, 2000

Gilbert A. Chong, Jr., )

Complainant, )

)

v. ) Appeal No. 01970633

) Agency No. 95-62204-013

Richard J. Danzig , )

Secretary, )

Department of the Navy, )

Agency. )

)

DECISION

On October 25, 1996, Gilbert A. Chong, Jr. (hereinafter referred to as

complainant) filed a timely appeal from the September 12, 1996, final

decision of the Department of the Navy (hereinafter referred to as the

agency) concerning his complaint of unlawful employment discrimination in

violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791,

794(c). Complainant received the final agency decision on September 27,

1996. Accordingly, the appeal is timely filed (see 64 Fed. Reg. 37,644,

37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �

1614.402(a)))<1> and is accepted in accordance with 64 Fed. Reg. 37,644,

37,659 (to be codified as 29 C.F.R. � 1614.405). For the reasons that

follow, the agency's decision is AFFIRMED.

The issue presented in this appeal is whether the complainant has proven,

by a preponderance of the evidence, that the agency discriminated

against him on the basis of disability (cervical herniation) when (a)

it did not extend his temporary appointment in October 1994 and (b)

he was allegedly harassed with regard to leave usage in January 1994.

Complainant was employed as a Heavy Equipment Mobile Mechanic, WG-10,

at the Marine Corps Logistics Base in Barstow, California, pursuant to a

temporary appointment NTE (not to exceed) one year.<2> In October 1993,

complainant was injured in an off-work accident suffering a cervical

herniation and was absent on sick leave or worked restricted light duty

for various periods until January 25, 1994, when he returned to work

with all restrictions removed. In September 1994, complainant was

informed that, because of decreased workloads, his appointment would

not be renewed and his appointment expired on October 14, 1994.

Complainant filed a formal complaint on January 10, 1995, alleging

that the agency discriminated against him when it did not renew his

one-year appointment and because his supervisors allegedly harassed

him about his leave usage and work attendance in the period following

his car accident.<3> Following an investigation, complainant requested

a final agency decision (FAD) without a hearing. The agency found no

discrimination, and complainant has filed the instant appeal without

substantive argument.

In its FAD, the agency found that complainant failed to establish a prima

facie case, in that, complainant did not provide evidence showing that

his back condition was permanent in nature or that it affected a major

life activity. The agency stated that it had reasonably accommodated

complainant until his return to full duty on January 25, 1994, and that

complainant did not contend otherwise. In addition, the agency held that

complainant did not have a record of a disability nor was he regarded

as disabled by agency managers.

As a threshold matter, one claiming protection under the Rehabilitation

Act<4> must show that s/he is a person with a disability as defined

therein. A person with a disability is one who has, has a record of, or

is regarded as having, a physical or mental impairment that substantially

limits one or more major life activities. 29 C.F.R. �1630.2(g). Major

life activities include caring for one's self, performing manual tasks,

walking, seeing, hearing, speaking, breathing, learning, and working.

29 C.F.R. �1630.2(i).

Although complainant asserted that he has an impairment of a cervical

herniation, he has not shown that he is a disabled person within the

meaning of the Rehabilitation Act and the Commission's regulations.

The record does not contain any documentation establishing that his

condition affects a major life activity or shows that he was incapacitated

from work for more than a brief period. 29 C.F.R. �1630.2(j). We find

that there is no evidence to show that complainant is a person with

a disability. Consequently, complainant is not subject to coverage

under the Rehabilitation Act.

CONCLUSION

Accordingly, the agency's decision was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

March 10, 2000

_________________

Date Frances M. Hart

Executive Officer

Executive Secretariat

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_____________ __________________________

Date

1On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply the

revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable,

in deciding the present appeal. The regulations, as amended, may also

be found at the Commission's website at WWW.EEOC.GOV.

2In October 1993, when complainant's initial temporary appointment

expired, it was renewed until October 1994.

3Initially, the agency dismissed the second part of his complaint for

untimely contact with an EEO counselor; however, it later accepted the

issue as part of the complaint at issue herein.

4The Rehabilitation Act was amended in 1992 to apply the standards in the

Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment. Since that time,

the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints

of disability discrimination. These regulations can be found on EEOC's

website: WWW.EEOC.GOV.