0520140061
04-16-2014
Complainant, v. Chuck Hagel, Secretary, Department of Defense, Agency.
Complainant,
v.
Chuck Hagel,
Secretary,
Department of Defense,
Agency.
Request No. 0520140061
Appeal No. 0120120043
Agency No. 2011-MDA-003
DENIAL
The Agency requested reconsideration of the decision in EEOC Appeal No. 0120120043 (Sept. 20, 2013). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
Complainant had alleged that the Agency discriminated against him on the basis of disability when, on March 18, 2011, it removed Complainant from federal service. The Agency dismissed the complaint for failure to state a claim, because Complainant did not have a disability and was removed after his security clearance had been revoked. The previous decision reversed the dismissal, because Complainant had stated a valid claim of discrimination, and the Agency had improperly addressed the merits of the complaint without a proper investigation.
On request for reconsideration, the Agency again maintains that dismissal was proper because Complainant is not a person with a disability under the law. Section 512(a) of Title V of the Americans with Disabilities Act of 1990 provides that the definition of an individual with a disability does not include an individual who is "currently engaging in the illegal use of drugs when a covered entity acts on the basis of such use." The facts presented by Complainant as the basis for his disability accommodation claim state that he was arrested and charged with being under the influence of a controlled substance. Therefore, there is no need for the Agency to investigate and determine if Complainant's drug use qualified as a disability. The basis of the allegation states that Complainant did not suffer from a drug addiction, but rather a one-time recreational use and possession of an illegal drug on a single occasion.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to deny the request. We note that the Agency failed to provide the Commission a copy of Complainant's formal complaint, which deprived our ability in the previous decision and on request for reconsideration to determine, independent of what the Agency portrayed in its dismissal decision, what exactly Complainant alleged in his formal complaint. Given what was included on appeal for us to review, we determine that the previous decision did not clearly err in finding that Complainant alleged a viable claim of denial of accommodation on the basis of disability. Whether Complainant was in fact limited in a major life activity besides drug use, or whether he requested a reasonable accommodation, are issues that must be investigated before they can be properly adjudicated. Therefore, the decision in EEOC Appeal No. 0120120043 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
The Agency shall comply with the Order as set forth below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
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
____4/16/14______________
Date
2
0520140061
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520140061