01985815
12-13-2000
Clement R. Walker v. Department of Health and Human Services 01985815 12-13-00 . Clement R. Walker, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services Agency.
Clement R. Walker v. Department of Health and Human Services
01985815
12-13-00
. Clement R. Walker,
Complainant,
v.
Donna E. Shalala,
Secretary,
Department of Health and Human Services
Agency.
Appeal No. 01985815
Agency No. IHS-011-97
DECISION
INTRODUCTION
The complainant timely initiated an appeal to the Equal Employment
Opportunity Commission (Commission) from the final decision of the agency
concerning his claim that the agency violated the Rehabilitation Act of
1973, as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in
Employment Act of 1967, as amended, 29 U.S.C. � 621 et seq.<0> The appeal
is accepted by the Commission in accordance with 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented herein is whether the agency discriminated against
the complainant based on disability (alcoholism) and age (47) when he
was removed from his position in August 1996.
BACKGROUND
The complainant filed a formal complaint in November 1996 in which he
raised the issue identified above. Following an investigation, the
complainant did not request a hearing and the agency issued a final
decision (FAD) dated June 18, 1998, finding no discrimination. It is
from this decision that the complainant now appeals.
The record reveals that the complainant, a Vietnam veteran, has a history
of alcoholism dating back to 1970. According to the complainant, this
condition has resulted in a number of problems, including prolonged
blackouts and at least one period of homelessness. In September
1995, the complainant was hired for the position of Housekeeping
Aid, WG-3566-2, at the Chinle Public Health Service Indian Hospital.
Although the complainant's alcoholism was under control during his first
six months in the position, he began drinking heavily in March 1996, and,
as he characterizes it, �blacked out for about a month.� As a result,
the complainant did not report for work between March 26 and April 17,
1996. When questioned about his absence, the complainant informed his
supervisor (the responsible official, RO) that it was because he had a
drinking problem.
The complainant was thereafter issued a letter of removal dated May 2,
1996, that offered him a �firm choice� between removal and retention of
his job through the successful completion of a rehabilitation program.
The complainant opted for the latter and thereafter participated in a
rehabilitation program between June 5 and 28, 1996. The complainant
states that, upon completing the program, he returned to his home and
discovered that his wife had moved their trailer to another town.
The complainant proceeded to join his wife, and, during the first
three weeks of July 1996, he reported to work without incident. On or
about July 22, however, the complainant began drinking again and he
did not return to work until August 9. In explaining his absence,
he testified, � I wanted to move back to where there was electricity,
water and shopping centers. But [my wife] would not discuss it. I left
thinking I would end it all. One day I came home and said I might as
well go out and went on a drinking spree for a month and a half.�
The complainant was thereafter charged with AWOL and issued a notice
of removal dated August 13, 1996. According to the notice, the
complainant was being removed because his AWOL violated a provision
of the �firm choice� offer he had received, i.e., that he �must not
engage in any misconduct or performance deficiencies after completing
[the rehabilitation] program.� The notice states further that the RO
had �lost all and complete confidence in [the complainant's] ability to
report for work.�
ANALYSIS AND FINDINGS
Disability
As an initial matter, the Commission notes that the agency conceded, in
its final decision, that complainant is an individual with a disability
as defined by the Rehabilitation Act. Therefore, this issue is not
before the Commission on appeal, and need not be further discussed
or addressed. The dispositive issue in this case is whether the
agency met its responsibility to provide complainant with reasonable
accommodation. The complainant's position, in effect, is that the
agency should have accommodated his condition by offering him a �firm
choice� between removal and treatment. The Commission has previously
held, however, that the 1992 amendments to the Rehabilitation Act are
inconsistent with an employer's obligation to provide a �firm choice.�
Johnson v. Department of the Interior, EEOC Petition No. 03940100
(March 28, 1996).<0> Furthermore, we find that the agency's removal
of the complainant based on his AWOL was not discriminatory insofar as
agencies, pursuant to the October 1992 amendments to the Rehabilitation
Act of 1973, are permitted to hold employees who are alcoholics to the
same qualification standards for employment or job performance and
behavior as other employees. 29 C.F.R. � 1630.16(b)(4). This is
true even if the misconduct or unsatisfactory performance is related to
the employee's alcoholism. Id. Consequently, we find that the agency
was not required to excuse the complainant's AWOL. See Woods v. Social
Security Administration, EEOC Petition No. 03970060 (June 19, 1997).
Accordingly, the Commission finds the complainant has not established
that the agency discriminated against him based on disability.
Age
In the absence of direct evidence of discrimination, the method of
establishing age discrimination is the three-step process set forth
by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979) (applying
McDonnell Douglas to claims brought under the ADEA). The complainant has
the initial burden of establishing a prima facie case. If the complainant
meets this burden, then the burden shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its challenged action.
The complainant must then prove, by a preponderance of the evidence,
that the legitimate reason articulated by the agency was not its true
reason, but was a pretext for discrimination.
Even assuming that the complainant is able to establish a prima
facie case, we find that the agency has articulated a legitimate,
nondiscriminatory reason for the complainant's removal, i.e., his
prolonged absences. The Commission finds that the complainant has offered
no evidence which demonstrates that this reason is pretextual. St. Mary's
Honor Center v. Hicks, 509 U.S. 502 (1993); Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Accordingly, we find the
complainant has not established that the agency discriminated against
him based on age.
CONCLUSION
It is the decision of the Commission to AFFIRM the FAD and find the
complainant has not established that he was discriminated against as
alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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:
__________________________________
Frances M. Hart, Executive Officer
Executive Secretariat
12-13-00
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify
that the decision was mailed to claimant, claimant's representative
(if applicable), and the agency on:
_________________________
Date
_________________________
01 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
02 In this regard, although the agency provided the complainant with
a �firm choice� following his initial AWOL, it was not required to do so.