05A40206
12-29-2003
Spencer Montgomery v. Department of the Navy
05A40206
December 29, 2003
.
Spencer Montgomery,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Request No. 05A40206
Appeal No. 01A31922
Agency No. 01-68836-002
Hearing No. 360-A2-8619X
DENIAL OF REQUEST FOR RECONSIDERATION
Spencer Montgomery (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider the
decision in Spencer Montgomery v. Department of the Navy, EEOC Appeal
No. 01A31922 (October 23, 2003). Complainant alleges that the agency
discriminated against him, in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., on the bases of race (African-American), color
(black), disability (right-side paralysis), and reprisal (prior EEO
activity) when: (1) he was suspended for five days for a work-related
motor vehicle accident in September 2000; and (2) he was suspended for
three days for a safety violation in November 2000.
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 request for reconsideration, complainant argues, inter alia,
that the agency was aware of his hand condition and the difficulty he had
driving a motor vehicle, but forced him to drive a motor vehicle anyway.
Even assuming the agency was aware that complainant had a disability,
the evidence does not support the finding that the agency set complainant
up to fail. We note that following a hearing, the AJ concluded that
complainant did not request a reasonable accommodation in any form. Upon
our review of the record, we agree with the AJ and our previous decision
and find insufficient evidence to support a finding of discrimination.
Accordingly, after a review of 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. 01A31922 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
December 29, 2003
__________________
Date