David F. Chavez, Complainant,v.Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionDec 11, 2003
01A24900 (E.E.O.C. Dec. 11, 2003)

01A24900

12-11-2003

David F. Chavez, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.


David F. Chavez v. Department of the Navy

01A24900

12-11-03

.

David F. Chavez,

Complainant,

v.

Hansford T. Johnson,

Acting Secretary,

Department of the Navy,

Agency.

Appeal No. 01A24900

Agency No. DON 01-62204-012

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's

appeal from the agency's final decision in the above-entitled matter.

Complainant alleged that the agency had discriminated against him on

the bases of national origin (Hispanic), color (Brown), and disability

(knee and back injury), when on February 26, 2001, he was advised that

his temporary detail as a Security Guard would not be extended; and since

his workplace injury in 1991, the agency has not found him a permanent

light duty position.<1> After a review of the record in its entirety,

including consideration of all statements submitted on appeal, it is

the decision of the Equal Employment Opportunity Commission to affirm

the agency's final decision because the preponderance of the evidence

of record does not establish that discrimination occurred.<2>

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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), 9-18 (November 9, 1999). 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 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 (S0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

_____12-11-03_____________

Date

1Complainant had originally maintained an additional claim, which

the agency analyzed as a proposed personnel action, and dismissed it

pursuant to 29 C.F.R. � 1614.107(a)(5) for failing to state a claim.

We find the dismissal was proper and we affirm.

2We assume without finding, for the purposes of analysis only, that

complainant is an individual with a disability. More notably, the

agency meets its responsibility under the Rehabilitation Act when it

initially reassigns complainant to a permanent vacant position that is

within complainant's medical restrictions. Here, complainant has not

shown that the agency's initial detail of complainant was outside of

his medical restrictions or that he was not qualified; therefore, the

agency fulfilled its reasonable accommodation obligation at that time.

The fact that complainant was removed from the reassigned position due to

performance or disciplinary problems does not negate our finding that the

agency met its requirements under the Rehabilitation Act. Section 501

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