03A20074
09-04-2002
Dean D. Stevens, Petitioner, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Dean D. Stevens v. Department of the Air Force
03A20074
September 4, 2002
.
Dean D. Stevens,
Petitioner,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Petition No. 03A20074
MSPB No. DE-0752-01-0278-I-1
DECISION
On May 18, 2001, petitioner filed a timely petition with the Equal
Employment Opportunity Commission requesting review of a Final Order
issued by the Merit Systems Protection Board (MSPB) concerning his claim
of discrimination in violation of Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Petitioner, a Production Controller, GS-9, at Hill Air Force Base in
Utah, alleged that he was discriminated against on the basis of perceived
disability (regarded as alcohol dependant) when on February 15, 2001,
the agency issued a notice of proposed indefinite suspension, stating
that petitioner was medically unfit for duty due to alcohol dependance.
On July 2, 2002, petitioner filed a mixed case appeal with the MSPB.
After a hearing, the Administrative Judge upheld the agency's suspension
of petitioner and found that the agency had shown, by a preponderance of
the evidence, that petitioner is alcohol dependant and medically unfit
for duty. The Board denied petitioner's petition for review.
EEOC Regulations provide that the Commission has jurisdiction over
mixed case appeals on which the MSPB has issued a decision that makes
determinations on allegations of discrimination. 29 C.F.R. � 1614.303
et seq. The Commission must determine whether the decision of the
MSPB with respect to the allegation of discrimination constitutes an
incorrect interpretation of any applicable law, rule, regulation or policy
directive, or is not supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
Petitioner contends that the agency discriminated against him on the
basis of perceived alcohol dependancy when it placed him on indefinite
enforced leave. The record establishes that on January 16, 2001,
petitioner reported to work under the influence of alcohol. Petitioner
was escorted to the agency's medical office where the agency's Medical
Director performed a blood test with petitioner's permission. The blood
test taken on that date showed petitioner to have a blood alcohol level
of .356 gm%.<1> Due, in part, to the results of this blood test, the
Medical Director found petitioner unfit for duty on the grounds that
he was alcohol dependant.<2> The Medical Director informed petitioner
that he could not return to work until he underwent a detoxification and
rehabilitation program. On April 30, 2001, after several unsuccessful
attempts on both sides to resolve the issue, petitioner was placed on
enforced leave. Petitioner was informed that he would be able to return
to work either by providing the agency with a verifiable statement from a
private health care provider stating that he is medically fit to return,
or by entering a treatment program approved by the agency. (Agency File,
Notice of Proposed Indefinite Enforced Leave, dated February 15, 2001).
Petitioner appealed his placement on leave to the MSPB.
The Administrative Judge found that the agency established, by a
preponderance of the evidence, that petitioner is alcohol dependant.
The Administrative Judge further found that the agency established that
petitioner was medically unfit for duty and posed a danger to himself
and others as a result of his alcohol dependency. The Administrative
Judge concluded that petitioner failed to show that he was discriminated
against on the basis of disability, and in that because he failed to
meet the requirements necessary to show that he is fit for duty, the
agency acted properly in not ending the indefinite suspension.
The Commission concurs with the Administrative Judge's conclusion that
petitioner failed to show that he was subject to unlawful discrimination
on the basis of perceived disability.<3> The record establishes that
petitioner reported to work on January 16, 2001, under the influence of
alcohol and that, after conducting a blood alcohol test on petitioner on
that date, the Medical Director found petitioner to be unfit for duty.
The agency informed petitioner that his indefinite suspension would
be lifted and he would be reinstated to his position upon receipt of
verifiable medical documentation which stated that he was fit for duty.
Petitioner has failed to provide that documentation. Accordingly, we find
that petitioner has failed to establish that the agency's actions were
based upon discriminatory animus in violation of the Rehabilitation Act.
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to concur with the final decision
of the MSPB finding no discrimination. The Commission finds that the
MSPB's decision constitutes a correct interpretation of the laws, rules,
regulations, and policies governing this matter and is supported by the
evidence in the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, within
thirty (30) calendar days of 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.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 4, 2002
__________________
Date
1 The agency's Medical Director stated that petitioner's blood alcohol
level was significant, in that an average, non-alcohol dependant
individual with a blood alcohol level of .356 gm% would most likely
not be conscious. Petitioner, however, was conscious and relatively
functional, indicating a high tolerance level that could only be
reached through extremely heavy consumption of alcohol over an extended
period. (Agency File, Exhibit H, page 2-3).
2 In his report, the Medical Director stated that petitioner exhibited
mental, behavioral, and psychomotor evidence consistent with �acute
intoxication and chronic alcohol abuse.� (AF, Ex. H, page 2).
3 Inasmuch as petitioner denies that he is alcohol dependent, we address
only the issue of whether petitioner was subjected to discrimination
because he is regarded as alcohol dependant. 29 C.F.R. 1630.(2)(g)(3).