01982042
07-31-2001
John W. Russell, II v. Department of the Navy
01982042
July 31, 2001
.
John W. Russell, II,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01982042
Agency No. DON-96-62813-002
Hearing No. 370-96-X2566
DECISION
Complainant timely initiated an appeal from the agency's final
decision concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq., Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant to 29
C.F.R. � 1614.405. Complainant alleges he was discriminated against on
the bases of disability (alcoholism/perceived drug abuse) and reprisal
(prior grievance) when he was not selected for the positions of Fire
Protection Inspector and Fire Fighter at the Naval Station, Pearl Harbor,
Hawaii, in 1995.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that complainant, a former employee at the agency's
Federal Fire Department at the agency's Pearl Harbor, Hawaii facility,
filed a formal EEO complaint with the agency on December 8, 1995,
alleging that the agency had discriminated against him as referenced
above. At the conclusion of the investigation, complainant received
a copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). Following a hearing, the AJ issued a
decision finding no discrimination.
The AJ found the following facts: Complainant was employed by the
agency for over nineteen years, beginning as a trainee and eventually
reaching the position of engineer. In May, 1992, complainant failed a
random drug test, testing positive for cocaine. Complainant's positive
drug test led to the loss of his security clearance in October, 1992.
Complainant was terminated in May, 1993 for failure to maintain a valid
security clearance.<1> Complainant never disputed the accuracy of the
drug test, but took the position that he must have unknowingly ingested
the cocaine during a drinking binge at a party where he �blacked out.�
Following his positive drug test, complainant completed two rehabilitation
courses for alcoholism and states that he has been sober since that time.
In March 1995, complainant applied for the position of Fire Protection
Inspector. Complainant was one of ten eligible applicants who were
referred to the selecting official (S1). S1 and two other panelists
(S2 and S3) ranked the candidates in three areas (knowledge of fire
prevention rules and practices, ability to interpret instructions, and
ability to communicate). Complainant received a score of 21 points.
The highest person ranked received 29 points. The two selectees received
a score of 27 and 26 points. Neither of the selectees had a disability.
In May, 1995, complainant applied for the second position, Fire Fighter.
Complainant was one of 29 eligible applicants referred to the selecting
official (S4). Complainant was ranked among the top six candidates
for this position. S4 stated that the principal reason complainant
was not selected was his lack of a security clearance, which would
prevent complainant from working as a fire fighter until his clearance
was reinstated. S4 explained that he needed to fill the position as
quickly as possible. S4 also indicated that a secondary reason for not
selecting complainant was his knowledge of �some behavioral problems on
the job during [complainant's] prior employment with the Federal Fire
Department.� None of the selectees had a disability.
The AJ concluded that complainant established a prima facie case
of disability discrimination with respect to his allegations of
discrimination based on his alcoholism. Specifically, the AJ found
complainant qualified for the vacant positions and that none of the
selectees were disabled. In addition, since the parties stipulated that
complainant has the disability of alcoholism, the AJ found complainant
to be a person with a disability within the meaning of the Rehabilitation
Act.
With respect to complainant's allegation that agency officials incorrectly
perceived him as a drug abuser, or �druggie,� the AJ determined that
complainant is not covered by the Rehabilitation Act since he failed to
show that he was perceived to be addicted to drugs or having a significant
dependence on drugs. Specifically, the AJ noted that complainant
testified that he is not currently, nor ever has been, addicted to or
significantly dependent on drugs. In addition, the medical evidence
in the record specifically indicates no diagnosis of current or prior
drug abuse. The AJ also noted that complainant stated several times at
the hearing that he thought agency officials viewed him as a drug user
as opposed to a drug addict. However, while complainant's positive drug
test was common knowledge among agency officials, the AJ noted that no
testimony was presented to suggest that complainant had exhibited any
substantial limitations or problems in his attendance or performance
that might have caused either his co-workers or his supervisors to
suspect that he was a heavy drug user or addict. In fact, the AJ found
evidence in the record which supported the finding that complainant
performed well during his employment with the agency. Accordingly, the
AJ determined that complainant failed to demonstrate that the agency
regarded him as having a drug-related disability because he failed to
show that he was perceived as a drug addict or as significantly dependent
on drugs. Lastly, the AJ concluded that complainant failed to show that
he is covered by an exception to the exclusion of persons engaging in
the illegal use of drugs because he has successfully completed a drug
rehabilitation program or has otherwise been rehabilitated successfully
and is no longer engaged in such use. See C.F.R. � 1614.203(h)(i); 29
U.S.C. �� 706(8)(C)(ii), 791(g). While complainant told the investigator
that he attended two �rehabilitation programs,� the AJ found it clear
from the context of the discussion that the two rehabilitation programs
were for alcoholism, rather than drug use.
The AJ determined that the agency articulated legitimate,
non-discriminatory reasons for its employment action. Specifically, the
panelists for the first position all denied considering the complainant's
past drug or alcohol use in making the selections. The panelists all
seemed to be aware that complainant left the agency due to a positive
drug test and the loss of his security clearance. The panelists explained
that the two selectees were ranked higher than complainant despite their
lack of specialized fire fighting experience because that experience
was not essential to performing the duties of a fire inspector.
With respect to the second position, a list of minimally qualified
applicants for the Fire Fighter position was referred to the selecting
official, S4. S4 asked two deputy chiefs (S5 and S6) to review the
applications and to rank the best-qualified candidates. S5 ranked
complainant number one on the list of best qualified applicants.
S5 was aware of complainant's prior positive drug test and loss of
security clearance. However, S5 testified that he had no knowledge
that complainant had any problem with alcohol. S6 ranked complainant
number one on the best qualified list. S6 also testified that while he
was aware of complainant's prior positive drug test and lost of security
clearance, he was not aware of any alcohol problem. S4 did not dispute
that complainant was the best qualified for the Fire Fighter position.
However, he testified that he did not select complainant because he
lacked a valid security clearance. In addition, S4 testified that, to
a lesser degree, complainant was not selected due to some �behavioral
problems� during complainant's prior employment.
Complainant argues that the reasons articulated by the agency were pretext
for disability discrimination. Specifically, complainant alleges that
all selecting officials were aware of his past drug use and considered
him a drug user. In addition, complainant argues that S4's original
explanation to complainant for why he was not selected was that the
agency was not rehiring anyone back.
The AJ found that the evidence presented by complainant that he was not
selected because the selecting officials considered him a drug user
did not amount to discrimination because a user of illegal drugs, as
opposed to a drug addict, is not protected by the Rehabilitation Act.
See Roman v. Department of Justice, EEOC Appeal No. 01942954 (May 9,
1997). The AJ also determined that complainant failed to show that the
reasons offered by the agency are a mask for discriminatory motive.
First the AJ determined that S4's statement that the agency was not
rehiring anyone was factually accurate. The record indicates that
the agency rejected all applicants who formerly worked for the agency
regardless of their protected status. With respect to the charge that
S1 tampered with S3's ratings of complainant, the AJ determined that a
higher rating would not have guaranteed complainant's selection since
three other applicants who rated equal or higher than the selectees
were not selected. With respect to the Fire Fighter position, the AJ
determined that there is no evidence in the record that complainant's
prior positive drug test tainted S4's selection decision. The AJ noted
that S4 wrote a letter on complainant's behalf when he was seeking
restoration of his security clearance. Lastly, the AJ noted that
complainant's own explanation of why he believes he was not selected
for the positions in question does not suggest discriminatory motive by
agency officials. Complainant opined that the former Chief (C1) actually
made the decision not to hire complainant because complainant knew about
the death of a woman in a fire in the distant past that C1 had covered
up and that complainant would not keep the matter quiet because he was
not a �yes man.� Complainant also testified that he had trouble with
S1 and S4 because he �rocked the boat� and was considered a trouble-maker.
Lastly, while the AJ noted that complainant had the disability of
alcoholism at the time of the challenged selections, since the record
contained no evidence that his condition had any negative impact on
the non-selections, the AJ concluded that complainant failed to prove
disability discrimination.
With respect to complainant's reprisal claim, the AJ found that
complainant failed to establish, by a preponderance of the evidence,
that the articulated reasons for his non-selections were motivated by
his protected EEO activity. While the AJ recognized that a couple of
witnesses agreed with complainant's testimony that he was viewed as a
�troublemaker,� due to his propensity to speak his mind about issues
and policies that he did not agree with, there was no testimony that
complainant's outspoken manner related to EEO protected activity in
any way. Accordingly, the AJ found that complainant failed to prove,
by a preponderance of the record that he was not selected due to his
prior EEO protected activity. In addition, the AJ found it more likely
that complainant was not selected due to his perceived drug use.
On appeal, complainant restates arguments previously made at the hearing.
In response, the agency restates the position it took in its FAD, and
requests that we affirm its final decision.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that any of the agency's actions were in
retaliation for complainant's prior EEO activity or were motivated by
discriminatory animus toward complainant's alcoholism.<2> We discern no
basis to disturb the AJ's decision. Therefore, after a careful review of
the record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we AFFIRM the agency's final decision.
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
July 31, 2001
__________________
Date
1Complainant's loss of security clearance and termination are not at
issue herein.
2We also agree with the AJ that the record contained insufficient evidence
to establish that agency officials perceived complainant as a drug addict
or someone with a significant dependence on drugs.