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.