03a10005
02-27-2001
Phillip G. Daugherty, Petitioner, v. David Satcher, Acting Secretary, Department of Health and Human Services, Agency.
Phillip G. Daugherty v. Department of Health and Human Services
03A10005
February 27, 2001
.
Phillip G. Daugherty,
Petitioner,
v.
David Satcher,
Acting Secretary,
Department of Health and Human Services,
Agency.
Petition No. 03A10005
MSPB No. DA-0752-99-0311-I-1
DECISION
On September 18, 2000, the petitioner filed a timely petition with the
Equal Employment Opportunity Commission asking for 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.<1> The
petition is governed by the provisions of the Civil Service Reform Act of
1978 and EEOC regulations, 29 C.F.R. � 1614.303 et seq. The MSPB found
that the Department of Health and Human Services, Indian Health Service
(IHS), did not engage in discrimination as alleged by the petitioner.
For the reasons which follow, the Commission CONCURS with the decision
of the MSPB.
ISSUE PRESENTED
The issue presented is whether the MSPB's determination that the
petitioner failed to prove that the agency discriminated against him
based on disability (alcoholism) when he was removed from federal service
pursuant to the Indian Child Protection and Family Violence Prevention Act
(the Act) constitutes a correct interpretation of the applicable laws,
rules, regulations, and policy directives, and is supported by the record
as a whole.
BACKGROUND
The petitioner, a Clinical Nurse, GS-0610-09, at the W. W. Hastings
Hospital in Tahlequah, Oklahoma, alleged that he was discriminated against
on the basis of disability (alcoholism) when on March 29, 1999, the agency
removed him from federal service. On April 2, 1999, the petitioner filed
a mixed case appeal with the MSPB. After a hearing, the Administrative
Judge (AJ) found that the agency had removed the petitioner because of
its improper interpretation of the Act. The AJ further found that the
petitioner failed to establish that the agency's action was the result
of his disabling condition or that he had been disparately treated.
The agency petitioned the full Board which affirmed the AJ's findings
with respect to the alleged discrimination and reversed the AJ's findings
that the agency's statutory interpretation was incorrect and sustained
the removal.
The agency's removal of the petitioner was based on, inter alia, his loss
of qualifications and ineligibility to perform the duties of his position
pursuant to the Indian Child Protection and Family Violence Prevention
Act. The Act requires the Secretary of Health and Human Services to:
(1) compile a list of all authorized positions within their respective
departments, the duties and responsibilities of which involve regular
contact with, or control over, Indian children,
(2) conduct an investigation of the character of each individual who
is employed or is being considered for employment, by the respective
Secretary in a position listed pursuant to paragraph (1), and
(3) prescribe by regulations minimum standards of character that each
of such individuals must meet to be appointed to such positions.
25 U.S.C. � 3207(a). The Act also provides:
The minimum standards of character that are to be prescribed under this
section shall ensure that none of the individuals appointed to positions
described in subsection (a) of this section have been found guilty of,
or entered a plea of nolo contendere or guilty to, any offense under
Federal, State, or tribal law involving
crimes of violence; sexual assault, molestation, exploitation, contact
or prostitution; or crimes against persons.
25 U.S.C. � 3207(b). The record shows that IHS had listed the petitioner's
position as one subject to the requirements of the Act because it involved
regular contact with Indian children.
The evidence further showed that a background check of the petitioner
revealed that he had been convicted by special military court-martial
of three violations of the Uniform Code of Military Justice, including a
charge of indecent assault with intent to gratify lust/or sexual desires
and drunk and disorderly behavior. At the hearing, the Director of
Personnel (DP) testified that neither the petitioner's performance,
nor conduct was considered in this action. The DP furthered stated
that by operation of the Act, the petitioner was not qualified for
the position because it involved regular contact with Indian children,
and he had been found guilty of certain crimes prohibited by the Act.
The Executive Officer (EO) of the Oklahoma City Area, testified that
he and the DP looked for a non-covered position that the petitioner
could be moved to, however, there were no open positions at the time.
Further testimony indicated that the agency had no discretion to consider
other factors in carrying out the requisites of the Act.
The petitioner argued that he had been sober since 1987, that he had
gone to school and acquired a professional career, received positive
performance appraisals, and that he and his wife had adopted two Indian
children and endured rigorous background checks for the adoptions.
He further stated that while the charges by the special military
court-martial were serious, the offenses resulted from his alcohol abuse
and post-Vietnam survivor's guilt.
The evidence showed that the agency's promulgated regulations, pursuant
to the Act, were not in effect at the time of the petitioner's removal.
The AJ, therefore, relied on regulations promulgated by the Bureau of
Indian Affairs (BIA) interpreting a similar Act. The AJ found that the
agency should have considered the length of time since the incident,
the age of the individual at the time of the incident, the probability
of the individual repeating the conduct in question and the petitioner's
commitment to rehabilitation and a change in the behavior in question.
Taking these factors into consideration, the AJ found that the removal
could not be sustained.
The AJ further found that the petitioner failed to show that the agency's
action was discriminatory based on his alcoholism. The AJ found that
the EO credibly testified that he did not know the petitioner prior
to the removal action and that he had not considered his alcoholism.
The EO further stated that his decision to remove the petitioner was
based only on the agency's interpretation of the Act's requirements.
The full Board found that its AJ had erred by relying on the BIA
regulations and finding that the agency had discretion to consider
mitigating factors.<2> The full Board found that the plain meaning
of the Act was clear and that the agency had no discretion to consider
mitigating factors. The Board reversed the AJ's finding and sustained
the removal of the petitioner. The full Board also affirmed the AJ's
finding that the petitioner failed to show that the agency's action was
taken pursuant to discrimination based on his disability.
ANALYSIS AND FINDINGS
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 a
correct interpretation of applicable laws, rules, regulations or policy
directives, or is supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
In any proceeding, either administrative or judicial, involving an
allegation of discrimination, it is the burden of the complainant,
petitioner herein, to initially establish that there is some substance to
his or her allegation. In order to accomplish this burden the petitioner
must establish a prima facie case of discrimination. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973); see also Furnco Construction
Corp. v. Waters, 438 U.S. 567, 576 (1978). This means that the petitioner
must present a body of evidence such that, were it not rebutted, the trier
of fact could conclude that unlawful discrimination did occur. The burden
then shifts to the agency to articulate a legitimate, non-discriminatory
explanation for its action. Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). In this regard, the agency need only produce
evidence sufficient "to allow the trier of fact rationally to conclude"
that the agency's action was not based on unlawful discrimination.
Id. at 257. Once the agency has articulated such a reason, the question
becomes whether the proffered explanation was the true reason for the
agency's action, or merely a pretext for discrimination. St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 511 (1993). Although the burden
of production, in other words, "going forward," may shift, the burden
of persuasion, by a preponderance of the evidence, remains at all times
on the petitioner. Burdine, 450 U.S. at 256.
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the petitioner has
established a prima facie case to whether he has demonstrated by a
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717
(1983).
Here, the agency's articulated reason for the petitioner's removal was
based on a statutory requirement which made the petitioner ineligible
for the position. We find this to be a legitimate non-discriminatory
reason for its action. The petitioner fails to show that the agency's
reason is pretextual. The statutory basis for the petitioner's removal
was not based on his alcoholism, rather it was based on his conviction
for conduct specifically proscribed by statute, i.e., sexual assault,
as making him ineligible for a position which requires regular contact
with Indian children.
The petitioner's argument that the conduct which led to the conviction
was a result of his alcoholism is not relevant to the statutory
requirement of minimum standards of character enacted to protect
Indian children. Moreover, the Commission notes that the agency's
obligation to accommodate employees with alcoholism was modified by the
Rehabilitation Act Amendments of 1992, which amended section 501 of the
Rehabilitation Act of 1973, requiring application of the Americans with
Disabilities Act standards. As a result, an agency may hold an employee
with alcoholism to the same qualification standards for employment or
job performance and behavior as other employees. This is so even if the
unsatisfactory performance and behavior is related to the alcoholism.
Accordingly, an agency is no longer is required to excuse the violation
of uniformly-applied conduct or job performance standards as a form
of reasonable accommodation. See Johnson v. Department of Interior,
EEOC Petition No. 03940100 (March 28, 1996).
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
February 27, 2001
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all Federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 29 C.F.R. Part 1614 in deciding the present
appeal. The regulations, as amended, may be found at the Commission's
website at www.eeoc.gov.
The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 We note that the Board consolidated the petitioner's case with three
other employees who were similarly removed.