01964338
10-16-1998
James Nance, Appellant, v. John H. Dalton, Secretary, Department of the Navy, Agency.
James Nance v. Department of the Navy
01964338
October 16, 1998
James Nance, )
Appellant, )
) Appeal No. 01964338
v. ) Agency No. DON95-62383-004
) Hearing No. 370-95-X2642
John H. Dalton, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of race (Black) and physical disability (perceived drug use), in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq., and the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791, et seq. The appeal is accepted in accordance with EEOC
Order No. 960.001. For the following reasons, the agency's decision is
AFFIRMED.
ISSUE PRESENTED
The issue on appeal is whether the agency discriminated against appellant
on either of the above-stated bases when: (1) in January of 1992, he
was forced to resign in lieu of removal following a positive drug test
for cocaine; and (2) in February of 1993, he was denied re-employment
on the basis of his previous positive test.
BACKGROUND
The record reveals that during the relevant time, appellant was employed
as an Able Seaman with the agency's Military Sealift Command Pacific,
Oakland, California. In November, 1991, appellant agreed to submit to
a drug test administered by the agency as part of his application for
a voluntary transfer. Appellant signed a voluntary drug test consent
form which stated that if he tested positive, he "[might] be referred
to a drug rehabilitation program, and, if circumstances warrant[ed],
subject to disciplinary action." On January 21, 1992, appellant was
notified that he tested positive for cocaine. Thereafter, appellant
was informed by an agency Employee Relations Specialist (ERS) that in
lieu of removal, he could voluntarily resign in exchange for a clean
personnel action form (standard form SF-50) and the opportunity to
apply for future re-employment with the agency. Appellant voluntarily
resigned and applied for re-employment with the agency in June of 1992.
After the agency took no action on his application, he resubmitted his
application on January 4, 1993. On February 4, 1993, the agency denied
him re-employment on the basis of his past positive drug test.
On February 23, 1993, appellant filed an appeal with the Merit Systems
Protection Board (MSPB) alleging that his resignation was involuntary and
that the agency discriminated against him on the bases of race (Black)
and disability (drug abuse) when it denied him re-employment based on
his past positive drug test. See Nance v. Department of the Navy,
MSPB Docket No. SF0752930308-I-1 (June 23, 1993). After a hearing,
the MSPB Administrative Judge concluded that appellant's resignation was
not involuntary, and that the MSPB, therefore, did not have jurisdiction
to hear his "mixed case" allegation that he was discriminatorily denied
re-employment. Immediately thereafter, appellant sought EEO counseling
and, subsequently, filed a formal complaint of discrimination with the
agency on August 28, 1993.
In a final decision dated September 21, 1993, the agency dismissed
appellant's complaint on the grounds that he failed to timely seek EEO
counseling and that he elected to pursue his discrimination claim with
the MSPB. On appeal, we vacated and remanded the agency's final decision,
noting that the agency erred by dismissing appellant's complaint on both
grounds. See Nance v. Department of the Navy, EEOC Appeal No. 01940863
(November 7, 1994). Appellant subsequently filed a new complaint with
the agency on January 17, 1995, alleging discrimination on the bases of
race (Black), physical disability (right hand thumb injury) and mental
disability (trauma resulting from shooting at police department).
The agency accepted the complaint bases as provided by appellant.<1>
At the conclusion of the investigation, appellant received a copy of the
investigative file and requested a hearing before an EEOC Administrative
Judge (AJ). Pursuant to 29 C.F.R. � 1614.109(e), the AJ issued a
Recommended Decision (RD) without a hearing, finding no discrimination.
The AJ concluded that appellant failed to establish a prima facie case
of race discrimination with respect to both issues because he failed to
demonstrate that similarly situated employees not in his protected class
were treated differently under similar circumstances. The AJ noted that
appellant made uncorroborated allegations that Caucasian employees who
tested positive were allowed to remain, whereas the agency provided a
list of approximately one-hundred employees who had tested positive, and
with the exception of one employee who was given a last chance agreement
and one other employee whose case was "dropped" without explanation,
every other employee, like appellant, was either removed, or resigned.
The AJ next concluded that appellant's allegation of disability
discrimination was not cognizable because his status as an illegal
drug user precluded him from coverage under the Rehabilitation Act.
The AJ relied on Respress v. Department of the Air Force, EEOC Petition
No. 03940064 (July 23, 1993) (claim of disability discrimination based
on illegal drug use outside the scope of the Rehabilitation Act)
as applicable to this case. The AJ also noted that employers "may
discharge or deny employment to persons who illegally use drugs, on the
basis of such use, without fear of being held liable for discrimination."
29 C.F.R. � 1630.3 App.<2> The AJ concluded that appellant was offered
resignation or removal because he had used illegal drugs, and not because
he was disabled.
The AJ also concluded, alternatively, that even if appellant were
considered to be an individual with a disability under the Rehabilitation
Act (i.e., an individual with a current or past drug addiction requiring
rehabilitation), he failed to demonstrate that the agency discriminated
against him because the ERS violated agency policy or misinformed him
with respect to his options after testing positive for cocaine. The AJ
noted that throughout the processing of his case, appellant denied that
he knowingly used or ingested cocaine, and he did not present himself to
the ERS as an individual with a drug addiction requiring rehabilitation.
On this basis, the fact that ERS did not present appellant any options
for rehabilitation or counseling was irrelevant because appellant never
notified ERS that he was in fact addicted to an illegal drug and in
need of rehabilitation. The AJ concluded, therefore, that appellant
failed to establish a prima facie case because he was not an aggrieved
person under 29 C.F.R. � 1614.105(a)<3>; he was not injured in fact,
and thus, his claim was subject to dismissal on this additional ground.
The agency's FAD adopted the AJ's RD. On appeal, appellant restated his
previous arguments and disagreed with the AJ's findings and conclusions,
and the agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
After a careful review of the record, based on McDonnell Douglas v. Green,
411 U.S. 792 (1973), and Prewitt v. United States Postal Service,
662 F.2d 292 (5th Cir. 1981) (applying McDonnell Douglas to disability
cases), the Commission finds that the AJ's RD summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
With respect to appellant's race discrimination allegation, we agree
with the AJ's conclusion that appellant failed to present evidence that
similarly situated Caucasian employees were treated differently than
appellant after testing positive for cocaine.
With respect to appellant's disability claim, we agree with the AJ that
he failed to establish a prima facie case of disability discrimination.
Moreover, we agree with that portion of the AJ's RD which concluded that
his failure to establish a prima facie case also required a finding that
he was not aggrieved under 29 C.F.R. � 1614.105(a) and therefore failed
to state a claim under 29 C.F.R. � 1614.107(a). In Respress, supra, we
concluded that the complainant's status as a social drug user precluded
him from coverage under the Rehabilitation Act because the complainant
never alleged that his marijuana use amounted to anything more than
social use. Here, appellant has alleged that the agency erroneously
perceived him as and illegal drug user. Under traditional notions of
notice pleading, appellant states a claim under the Rehabilitation Act
only if he can establish that he was erroneously perceived as an illegal
drug user. For the reasons set forth herein, however, appellant fails to
substantiate this allegation. Consequently, appellant failed to establish
that he is covered by the Rehabilitation Act. Appellant's failure in
this regard also leads to the conclusion that he fails to state a claim
under the Rehabilitation Act.
CONCLUSION
We discern no basis to disturb the AJ's findings which were based on
a detailed assessment of the record and applicable laws. Therefore,
after a careful review of the record, including appellant's contentions on
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
Oct 16, 1998
_______________ _________________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat
1 The AJ noted that the agency did not accept the alleged disability
(perceived drug use or drug abuse) as it had been posed before the
MSPB and stated by the Commission in its previous decision. Id.
The AJ further noted that both parties agreed that the thumb injury
and shooting were not issues in this case. See RD pages 4-5, at n.2.
Therefore, the AJ addressed the basis of appellant's alleged disability
as perceived drug use.
2 We note that the AJ inadvertently cited 29 C.F.R. � 1603.3 App.
3 We note that the AJ inadvertently cited 29 C.F.R. � 1614.106(b).