Arnold A. Roscoe, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionSep 21, 2000
01974138 (E.E.O.C. Sep. 21, 2000)

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).