0120063882
11-10-2008
Michael E. Hooper, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Michael E. Hooper,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01200638821
Agency No. 050964
DECISION
On June 19, 2006, complainant filed an appeal from the agency's May 8,
2006 final decision concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, complainant
worked as a Special Agent at the agency's Immigration and Customs
Enforcement facility, Office of Investigations, in San Diego, California.
Complainant was hired as a Schedule B employee on March 3, 2006, pursuant
to an Excepted Appointment subject to a three-year probationary period.
On May 2, 2004, complainant was arrested by the San Diego Police
Department and charged with two counts of Driving Under the Influence
(DUI) of alcohol.
Complainant filed an EEO complaint dated December 30, 2004, alleging
that he was discriminated against on the basis of disability (perceived
alcoholic) when: on October 29, 2004, complainant was terminated from
his position as Special Agent in San Diego, California.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision pursuant to 29
C.F.R. � 1614.110(b). The decision concluded that complainant failed to
prove that he was subjected to discrimination as alleged. The agency
found no evidence complainant was an individual with a disability, had
a record of a disability, or that the agency perceived him as disabled
because of his association with SSA 1. Further, the agency asserted
that the Acting Special Agent in Charge (ASAIC), the deciding official
in complainant's termination, terminated complainant based on his two
prior DUI arrests and the fact that a third arrest occurred on May 2,
2004, while complainant was a probationary employee. The agency states
that as a result of the arrests complainant was determined to not meet
the agency's higher standard of conduct for special agents.
The agency also found that the ASAIC referred complainant to the
Employee Assistance Program (EAP) because that was standard operating
procedure when an employee was arrested or had any kind of substance
or alcohol-related incident. The ASAIC had also referred employees
to the EAP for other matters, such as anger management counseling.
With regard to the other purported comparatives cited by complainant,
the agency noted that those employees involved different circumstances
and were not subject to the same probationary terms as complainant.
The agency noted that while the ASAIC had recommended termination for
other employees, he had not done so for any probationary employee prior
to October 2002. Thus, the agency argued complainant failed to show that
he was treated differently than anyone outside his protected class.
Finally, the agency contends that complainant's termination resulted
from his three arrests for DUI of alcohol, the last arrest occurring on
May 2, 2004, while complainant was a probationary employee. The agency
stated that complainant's misconduct was the motivating factor for his
termination. The agency also stated complainant's referral to the EAP
was a standard operating procedure when an employee was arrested or had
a substance or alcohol-related incident. The agency found there is no
evidence that complainant's termination or referral to EAP was based on
his perceived disability.
On appeal, complainant claims he was discriminated against because the
agency perceived him as having a "history" of alcohol related problems.
Complainant states he informed the agency that on the night of his arrest
he had been drinking with SSA 1 who was also perceived as having alcohol
related problems. Complainant cites the fact that the agency directed
him to remove SSA 1's name from his memorandum describing his May 2,
2004 arrest, and the fact that other employees were arrested for DUI
but were not terminated from the agency, as evidence of pretext.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Upon review, we find that the agency articulated legitimate,
non-discriminatory reasons for its actions. Complainant failed to present
evidence that the agency's actions were motivated by discriminatory
animus toward complainant's protected class. Here, we assume arguendo
that complainant is disabled pursuant to the Rehabilitation Act.2
The Commission concludes that even assuming arguendo, complainant
did establish a prima facie case of discrimination on the alleged
basis, the preponderant evidence does not show that discrimination
occurred. With regard to complainant's termination, we find the agency
articulated legitimate, non-discriminatory reasons for terminating
complainant: his three arrests for DUI, the last arrest occurring
while he was in a probationary period. Further, the agency stated that
complainant's referral to the EAP was standard operating procedure when
an employee was arrested or had a substance or alcohol related incident.
Complainant failed to show that the agency's explanation was a pretext
for discrimination.
Accordingly, the agency's final decision finding no discrimination is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
November 10, 2008
__________________
Date
1 This case has been redesignated with the above-referenced appeal
number.
2 We do not address whether complainant is a disabled individual under
the Rehabilitation Act.
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0120063882
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120063882