01974138
09-21-2000
Arnold A. Roscoe, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Arnold A. Roscoe v. Department of the Navy
01974138
September 21, 2000
.
Arnold A. Roscoe,
Complainant,
v.
Richard J. Danzig,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01974138
Agency No. 9400189004
Hearing No. 120-96-5471X
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination
on the basis of disability (alcoholism and depression) in violation
of Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq.<1>
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405). Fore the reasons that follow,
the agency's decision is AFFIRMED.
ISSUE PRESENTED
The issue on appeal is whether the agency failed to accommodate
complainant's disability and unlawfully terminated his employment on
August 8, 1994.
BACKGROUND
During the relevant time, complainant was a stevedore at the
agency's Fleet and Industrial Supply Center in Norfolk, Virginia.
He filed a formal complaint with the agency on September 29, 1994,
alleging discrimination as referenced above. At the conclusion of
the investigation, complainant requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a Recommended Decision (RD)
without a hearing, finding no discrimination. The FAD adopted this
determination, and complainant now appeals the FAD.
The record reveals that complainant has a history of alcoholism, resulting
in excessive absenteeism. Complainant frequently gave both alcohol
and non-alcohol related reasons for his absences. Recognizing that
complainant required rehabilitation, the agency advanced complainant
160 hours of sick leave for inpatient treatment under a �Firm Choice
Agreement� in 1992. Thereafter, complainant continued in his pattern
of leave abuses, resulting in over one hundred hours of Absent Without
Leave (AWOL) status in 1993. In March 1993, he was issued a Proposed
Suspension, which the agency held in abeyance upon complainant's promise
not to incur any further disciplinary offenses. However, complainant
continued to have leave problems, again offering various reasons for his
absences, including alcohol related problems. Consequently, the agency
again issued complainant 176 hours of advanced sick leave for inpatient
rehabilitation, which he completed in June 1993. Complainant continued
to abuse leave, and was issued a Proposed Suspension concerning AWOL
in March 1994. Two more AWOL infractions followed in April and May,
causing him to miss meetings with his supervisors concerning the Proposed
Suspension. Complainant claimed he was experiencing medical problems
(high blood pressure and medication side-effects), but failed to provide
the agency with requested verifying medical documentation.
Based on his history of absenteeism, the agency issued complainant a
Proposed Removal in May 1994. However, the agency then agreed to hold
this in abeyance and entered into a Last Chance Agreement (LCA) with
complainant in June 1994. In pertinent part, complainant agreed to
maintain satisfactory attendance, and to provide medical documentation
for medically related absences. The LCA provided that breach of these
terms would result in reactivation of the Proposed Removal without
further notice.
Two weeks after executing the LCA, complainant was charged with AWOL
from July 1, 1994 to July 13, 1994. When he returned to work on July
14, 1994, he submitted a statement from his treating psychiatrist
which indicated that he was under medical treatment and could return
to work on July 14, 1994. He also told his supervisors that he was
�depressed� and had �blackouts� during this period, stating that his
first-line supervisor �refused� to give him leave on July 1, 1994,
to see his doctor for depression. The agency requested documentation
to verify complainant's account, but complainant failed to provide it.
Subsequently, the agency issued its Decision on the Proposed Removal on
August 3, 1994. The next day, complainant submitted a medical opinion
from his treating psychiatrist. The statement indicated that complainant
had a single episode of �major depression,� during the AWOL period
and was responding to medication. It also stated that complainant had
not complained of blackouts, and there was no reference to alcoholism.
The agency reviewed this statement, but issued a memorandum on August 5,
1994, concluding that this documentation was insufficient to rescind its
decision to remove complainant. Complainant was terminated effective
August 8, 1994.
In his statement on appeal, complainant sets forth various arguments,
which are addressed below. The agency stands on the record and requests
that the Commission affirm its FAD.
ANALYSIS AND FINDINGS
In concluding that complainant failed to present a prima facie case of
discrimination, the AJ found that the medical evidence established that
complainant was an individual with two disabilities, namely alcoholism
and depression,<2> and that complainant's removal from employment
was an adverse action. However, the AJ held that complainant failed
to establish the two remaining elements of the prima facie case: (1) a
causal connection between his disabilities and his AWOL incidents; and
(2) a showing that he was a �qualified individual with a disability.�
See 29 C.F.R. 1630.2. <3>
Regarding the first of these elements, the AJ found that complainant's
proffered reasons for his absences primarily dealt with incidents
unrelated to alcoholism or depression, thereby defeating the required
connection. We disagree. Our review of the record reveals that
the involved management officials, from 1991 to 1994, were aware
of complainant's alcoholism, as evidenced by his need for inpatient
treatment in 1992 and 1993. Given this history, these officials knew that
alcoholism was at the root of complainant's leave abuses in 1992 and 1993.
These officials could not then ignore this history in 1994 and assert they
did not realize that complainant's continued leave problems were related
to alcoholism (and now also depression by virtue of his 1994 physician's
statements), especially since complainant continued in the same pattern of
offering reasons for his absence that included alcohol and non-alcohol
related incidents.<4> Accordingly, we find that complainant's AWOL
incidents were causally related to his disability, however defined.
The AJ noted that according to Commission precedent, where an agency
contends complainant is not a "qualified individual with a disability"
because of excessive absences from work, the complainant may prove that
he or she is a "qualified individual with a disability" -- in spite of
such absences -- by demonstrating that there is a sufficient nexus between
the absences and the complainant's disability. See McCullough v. United
States Postal Service, EEOC Request No. 05950539 (April 25, 1996).
Because the AJ had determined that complainant's history of unauthorized
absences were not causally related to his disability, the AJ found that
complainant failed to establish that he was a �qualified individual
with a disability.� However, having found that complainant established
this nexus, we find that complainant is a �qualified individual with
a disability,� and he has therefore established a prima facie case.
Accordingly, the agency then has either the duty to provide complainant
with a reasonable accommodation, or the burden of demonstrating that
accommodating these absences would pose an "undue hardship." Id.
We find that the agency has satisfied its duty to provide complainant
with a reasonable accommodation. In response to complainant's leave
abuses, the agency twice provided him with substantial advanced sick
leave to enter rehabilitation, counseled him about his leave problems
from 1991 to 1994, and suspended formal disciplinary actions while
giving him additional opportunities to correct his leave problems.
Each time complainant failed to improve, and by 1994 he had accumulated
hundreds of hours of AWOL, and a very large negative sick leave balance.
The agency then agreed to enter a LCA with complainant, which he violated
two weeks later.<5> Thereafter, the agency granted complainant another
opportunity and indicated that it would forbear implementation of the
removal action, provided he submitted medical documentation regarding
his depression and blackouts. After complainant failed to do so, the
agency issued its decision to remove him from employment. However,
the next day, when complainant provided a medical statement, the agency
accepted it and reviewed it, but found it inadequate to support the
accommodation complainant requested.<6>
Based on the foregoing, we concur with the AJ's decision that complainant
was not unlawfully discriminated against by the agency on the basis of his
disability when his employment was terminated for violation of the LCA.
See Brooks v. Small Business Administration, EEOC Petition No. 03980014
(September 24, 1998).<7>
CONCLUSION
Therefore, after a careful review of the record, including complainant's
arguments on appeal, the agency's response, and arguments and evidence
not discussed in this decision, the Commission AFFIRMS the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
___________________________________
Frances M. Hart
Executive Officer
Executive Secretariat
September 21, 2000
_____________
DATE
_______________
DATE
1 On 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.
2The medical evidence does not address whether complainant's depression
is a symptom of his alcoholism, or whether it stands as an unrelated and
independent condition. On appeal, complainant argues that the agency owes
him two separate duties to accommodate his two separate disabilities, and
that a hearing with expert witness testimony is necessary to clarify this.
However, we find that whether complainant had one combined disability,
or two separate disabilities, is not determinative.
3The 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. 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.
4We find that �blackouts� are so commonly associated with alcoholism that
given complainant's severe alcoholism, it should have been reasonably
assumed by the management officials that complainant was describing an
alcoholism-related symptom.
5Before the AJ, and again on appeal, complainant contends that this
AWOL period resulted from his supervisor's refusal to approve requested
leave on July 1, 1994. However, we do not find that this constitutes a
failure to provide a reasonable accommodation given complainant's failure
to produce adequate documentation for the request as required by the LCA.
Moreover, on the instant record we find it is too speculative to conclude
that this denial of leave precipitated the following two week AWOL period,
particularly as no corroborative evidence substantiates complainant's
version of events during this period.
6On appeal, complainant argues that the agency improperly terminated
him when it refused to consider his August 4, 1994, submission of
medical evidence because it was not tendered prior to the proposed
removal action. However, as described herein, the record shows that
this evidence was considered after-the-fact, but found insufficient to
justify complainant's violation of the LCA. Complainant argues on appeal
that the submission of this evidence created a new duty for the agency
to accommodate his depression presumably by rescinding its decision
to terminate him. However, we find that the LCA, and the agency's
provision of an opportunity for complainant to submit documentation,
satisfied the agency's already existing duty to accommodate either or
both disabilities in this instance.
7The Commission notes that the agency's obligation to accommodate
employees with alcoholism was modified by the Rehabilitation Act
Amendments of 1992, which amended section 501 of the Rehabilitation Act
of 1973, requiring application of the Americans with Disabilities Act
standards. As a result, an agency may hold an employee with alcoholism
to the same qualification standards for employment or job performance
and behavior as other employees. This is so even if the unsatisfactory
performance and behavior is related to the alcoholism. Accordingly,
an agency is no longer is required to excuse the violation of
uniformly-applied conduct or job performance standards as a form of
reasonable accommodation. As noted by the AJ, the Commission has found
that these standards are inconsistent with the obligation to provide a
"firm choice" between treatment or removal, and therefore, agencies are
no longer required to provide a firm choice. See Johnson v. Department
of Interior, EEOC Petition No. 03940100 (March 28, 1996).