05A10784
10-24-2001
Michael S. Kearns, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Michael S. Kearns v. Department of the Navy
05A10784
October 24, 2001
.
Michael S. Kearns,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Request No. 05A10784
Appeal No. 01994896
Agency No. 95-68909-001; 95-68909-002
Hearing No. 340-95-3842X; 340-95-3843X
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission to reconsider the decision in Michael S. Kearns v. Department
of the Navy, EEOC Appeal No. 01994896 (May 17, 2001). EEOC Regulations
provide that the Commission may, in its discretion, reconsider any
previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
In his formal complaint, complainant alleged that he was discriminated
against on the bases of disability (ventricular tachycardia) and in
reprisal for prior protected activity arising under Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. when the agency did not make reasonable accommodation for
his disability. The appellate decision affirmed an Administrative
Judge's post hearing finding of no discrimination. In his request
for reconsideration, complainant contends that the appellate decision
involved clearly erroneous interpretations of material fact concerning:
(1) what kinds of reasonable accommodations complainant requested and
was willing to consider; and (2) whether there were vacant, funded
positions for which complainant was qualified and to which he could
have been reassigned. In support of these contentions, complainant
re-characterizes the evidence by restating the facts in a light more
favorable to his position. However, upon review, we find that the record
does not support complainant's re-characterization of the evidence, and
we therefore conclude that the appellate decision did not involve a
clearly erroneous interpretation of material fact. We also note that
complainant has not presented any argument that was not previously
considered by the Commission when we affirmed the agency's final decision.
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01994896 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 24, 2001
__________________
Date