Spencer Montgomery, Complainant,v.Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionDec 29, 2003
05A40206 (E.E.O.C. Dec. 29, 2003)

05A40206

12-29-2003

Spencer Montgomery, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.


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