0120142441
01-29-2015
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120142441
Hearing No. 410-2013-00301X
Agency No. 1K-301-0031-12
DECISION
Complainant filed an appeal from the Agency's June 15, 2014 final order concerning his equal employment opportunity (EEO) complaint. He alleged employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Tractor Trailer Operator at the Agency's Atlanta Processing & Distribution Center in Atlanta, Georgia.
On June 15, 2012, Complainant filed an EEO complaint, alleging that the Agency discriminated against him on the basis of disability (perceived) and retaliation when, on February 21, 2012, he was subjected to two drug tests and placed in an off-duty status. Complainant also alleged that management released some of his medical information to co-workers.
The Agency initially dismissed the complaint. Complainant's appealed the dismissal to the Office of Federal Operations, which reversed the dismissal and remanded the matter to the Agency for investigation.
The pertinent record reveals the following facts. Complainant has been a tractor-trailer operator with the Agency for 24 years.
Complainant named the Manager Transportation and Networks (Manager) as the alleged discriminating official. He acknowledged that he believed Complainant had an alcohol addiction.
Complainant has filed two prior EEO complaints. One of the complaints was filed in 2011. That matter was settled on December 9, 2011. The Manager was a signatory to the agreement.
The settlement agreement stated that Complainant would be subjected to "additional random drug tests at management's discretion . . . for a one year time period (December 9, 2011 to December 9, 2012).
The Manager ordered multiple tests of the Complainant from the date of the settlement agreement until February 21, 2012. On that date, Complainant tested positive. Complainant was placed on Emergency Placement in an off- duty, non-pay status. The Manager was subsequently advised by the testing facility that the positive finding was erroneous. The Manager returned Complainant to duty. Complainant did not suffer a loss of pay.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation. Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ held a hearing on April 3, 2014. Two witnesses appeared at the hearing, including the Complainant, who was represented by an attorney. The second witness the Manager Transportation and Networks, who was the named responsible management official.
The AJ noted that, during the hearing, Complainant offered no testimony regarding any medical condition. Complainant also did not offer testimony regarding the alleged inappropriate release of medical information. The AJ did not address Complainant's claim that the alleged discrimination was based on management's perception that Complainant had a disability. The AJ found, instead, that Complainant established a prima facie case of retaliation by his showing that management ordered Complainant to be drug tested five to six times after the signing of the settlement agreement.
The AJ found that the Agency rebutted the prima facie case. The AJ based his conclusion on the testimony of the management witness whom the AJ found to be "straightforward and above board." The Manager testified that he ordered the test based on the terms of the settlement agreement which permitted discretionary testing. The AJ also found that Complainant had not suffered any loss of pay when he was placed off-duty, following the positive drug test results.
The Agency subsequently issued a final order adopting the AJ's finding of no discrimination.
This appeal followed.
ANALYSIS AND FINDINGS
On appeal, Complainant argues that the Agency violated the Rehabilitation Act and Title VII when it subjected him to random drug testing and placed him in off-duty status because of a perception of a disability. Furthermore, Complainant argues that the only random testing that is permissible is pool-based testing. Complainant asserts that the AJ misconstrued his claim and improperly applied the law.
In response, the Agency contends that it established a legitimate reason (positive drug testing and discretionary testing, consistent with the settlement agreement). Complainant contends that he has "shown the Agency's alleged legitimate business reason for having subjected him to the DOL defined Reasonable Suspension Drug Testing to be untruthful in nature." Complainant next argues that the Agency did not articulate a legitimate reason because the random drug testing violated the Department of Labor (DOL) definition of random drug testing. The DOL definition allows a random selection of employees for testing, as drawn by a computer from a pool of 15 to 20 employees. Complainant argues that discretionary alcohol testing is permissible only where there exists a reasonable cause to suspect an employee is abusing alcohol and that the Agency did not establish this.
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). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
As a threshold matter, Complainant must establish that he is a qualified individual with a disability within the meaning of the Rehabilitation Act, or was regarded as such. An "individual with a disability" is a person who has, has a record of, or is regarded as having a physical or mental impairment which substantially limits one or more of that person's major life activities.
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
For purposes of our analyses, we will assume that Complainant established the elements of his prima facie claims. In this case, however, the AJ made a determination that the Agency articulated a legitimate, non-discriminatory reason for its actions. The AJ found that the Agency conducted discretionary testing in accordance with the discretionary management testing permitted under the parties' settlement agreement and placed Complainant in an on off-duty status after the Manager received a positive drug test result. The AJ found that Complainant failed to rebut the articulated reasons. The AJ made his decision based on credibility determinations which are supported by the record. The preponderance of the evidence does not show that the reason was based on any perceived disability or prior EEO activity. Therefore, we find that there is no reason to disturb the AJ's findings and the Agency's decision.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 tends 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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (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
January 29, 2015
__________________
Date
2
0120142441
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120142441