0520130149
05-31-2013
Stacy L. Greaser, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
Stacy L. Greaser,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Request No. 0520130149
Appeal No. 0120103014
Hearing No. 530-2007-00068X
Agency No. P-2006-0179
DENIAL
Complainant timely requested reconsideration of the decision in Stacy L. Greaser v. Department of Justice, EEOC Appeal No. 0120103014 (June 13, 2012). 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(b).
Complainant applied for and was offered a position as a Fabric Worker Supervisor at the Agency's penitentiary in Bruceton Mills, West Virginia, pending successful completion of a physical examination and negative drug test result. Complainant's drug test was administered on February 27, 2006. When the laboratory evaluated the Complainant's urine specimen, it did not find any byproducts of illicit drugs.
However, according to federal guidelines, agencies must perform specimen validity tests on all urine samples to ensure that they are unadulterated and, as part of this testing, agencies must determine whether samples were diluted. See Department of Health and Human Service (HHS), Mandatory Guidelines for Federal Workplace Drug Testing Programs ("Guidelines") (Nov. 25, 2008), Section 3.1, Subpart C, available online at http://www.gpo.gov/fdsys/pkg/FR-2008-11-25/pdf/E8-26726.pdf. After testing the validity of Complainant's specimen, independent toxicology experts found that Complainant's creatinine levels were abnormal, and that her specimen was diluted.1
Consequently, the Agency concluded that Complainant's urine specimen was a "negative dilute," which the Agency treats as a refusal to take a drug test. On March 2, 2006, the Warden rescinded Complainant's offer of employment based on the Agency's determination that she failed to successfully pass the urinalysis drug test administered on February 27, 2006.
On May 12, 2006, Complainant filed a formal complaint in which she alleged that the Agency discriminated her on the bases of race (White/Caucasian) and sex (female) when on March 8, 2006, she learned that her conditional offer of employment had been rescinded after she failed a drug test. Complainant requested a hearing before an EEOC Administrative Judge (AJ), and the AJ determined that Complainant also raised a claim of disparate impact discrimination based on sex (female) and ordered the Agency to investigate the claim. Accordingly, the Agency also investigated Complainant's disparate impact claim.
On April 23, 2010, the AJ issued a decision without holding a hearing, finding no discrimination. Specifically, the AJ found that Complainant failed to establish a prima facie case of disparate treatment discrimination because she failed to establish that she was treated less favorably than similarly situated employees outside her protected classes. The AJ further found that Complainant failed to demonstrate that a specific identifiable employment practice or policy caused a disparate impact on women. The AJ noted that under the "four-fifths rule," as set forth in the Commission's Uniform Guidelines on Employee Selection Procedures (UGESP),2 "[a] selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact, while a greater than four-fifths rate will generally not be regarded by Federal enforcement agencies as evidence of adverse impact." 29 C.F.R. � 1607.4(D).
The AJ further noted that an independent contractor analyzed the effect of negative dilute findings on female employees and found that males passed the drug test at a 99 percent rate, and females passed the test at a rate of 98.6 percent. The AJ further noted that the Agency's own analysis found that males passed the test at the rate of 98.6 percent and females passed at the rate of 97.8 percent. The AJ concluded that the female to male pass rate under the "four fifths rule" was 99.2 percent and, therefore, none of the statistical analyses established that women were disparately impacted by the Agency's use of the "negative dilute" finding.
Our previous decision affirmed the AJ's findings. Specifically, the Commission found that Complainant failed to show that she was subjected to disparate treatment because of her race or sex because she did not show that similarly situated employees outside her protected classes were treated more favorably. With respect to Complainant's disparate impact claim, the Commission found that Complainant failed to show that the Agency's use of "negative dilute" findings negatively impacted female applicants more than male applicants.
In her request for reconsideration, Complainant maintains that two out of three female applicants who submitted specimens on February 27, 2006, had negative dilute drug tests results, which shows that women were disparately impacted by the Agency's use of creatinine drug tests. Complainant contends that creatinine excretion occurs less often in women than men, and the use of the creatitine test is biased against women, people with less muscle mass, and those who drink copious amounts of water.
We note that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here.
Complainant contends that she was discriminated against because two of the three women who submitted specimens for testing on February 27, 20006, had negative dilute results. However, this sample is simply too small to prove that a statistical disparity existed. In contrast, the independent laboratory provided data for 9,261 drug tests conducted on new hires from October 1, 2004, until June 13, 2008. Likewise, the Agency provided data for more than 12,000 drug tests. As found in our previous decision, these comprehensive statistics reflect that the ratio of the female pass rate to the male pass rate was 99.2 percent, well below the four-fifths/80 percent level.
Complainant also contends that creatitine excretion occurs less often in women than men, which results in lower creatitine levels for women. However, we note that the HHS determined that 20 is the lowest acceptable level of creatinine for both men and women, which allows for an 80 percent deviation from the norm of 100 for women. Supplemental Report of Investigation, p. 3. In summary, Complainant has not been able to show through statistical evidence that the Agency's use of negative dilute results disproportionately impacted women. Consequently, we find that Complainant has not shown that our previous decision was erroneous.
Accordingly, 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(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120103014 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
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 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.
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
May 31, 2013
Date
1 Complainant's creatinine level was 12.5 milligrams per deciliter (mg/dL), and her specific gravity was 1.0019, both of which were well below the acceptable range for testing. Federal guidelines provide that a specimen is considered dilute when the creatinine concentration is greater than 5 mg/dL but less than 20 mg/dL and the specific gravity is equal or greater than 1.002 but less than 1.003 on a single aliquot. Complainant's results indicated that her urine was too diluted for valid testing.
2 The Departments of Labor and Justice and the Office of Personnel Management (then called the Civil Service Commission) issued UGESP along with the EEOC in 1978.
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0520130149
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520130149