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Leslie F. Lea, Petitioner,
vs.
Robert E. Rubin, Secretary, Department of the Treasury, Agency
 
Case:
MSPB No. DA-0752-96-0433-I-1 Petition No. 03970018
 
Location:
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
 
Date:
July 31, 1997
 
OPINION: DECISION

INTRODUCTION

On October 30, 1996, Leslie F. Lea (hereinafter referred to as petitioner) timely filed a petition with the Equal Employment Opportunity Commission (the Commission) for review of the Merit Systems Protection Board (the Board) final decision on her case. In that decision, the Board found that the agency had not discriminated against her on the bases of disability or reprisal when it removed her from her Revenue Officer position. See section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. SEC. 791. The Commission accepts this petition in accordance with the Civil Service Reform Act of 1978 and EEOC Regulations at 29 C.F.R. SEC. 1614.303 et seq.

ISSUE PRESENTED

Whether the Board's determination that the agency had not discriminated against petitioner on the bases of disability or reprisal when it removed her from her Revenue Officer position constitutes a correct interpretation of the applicable laws, rules, regulations, and policy directives, and is supported by the record as a whole.

BACKGROUND

On May 9, 1996, petitioner filed an appeal with the Board, alleging that the agency discriminated against her on the bases of disability (cocaine use) and reprisal (prior EEO activity) when it removed her from her Revenue Officer position. In its initial decision, the Board sustained the agency's action, finding that it did not discriminate against petitioner when it removed her from her position. Petitioner did not appeal the Initial Decision to the full Board but timely filed a petition for review with this Commission.

In September 1993, petitioner advised the agency that she needed assistance with addressing an illegal drug dependency problem. Thereafter, the agency assisted in petitioner's drug rehabilitation, allowing her to make use of a "safe harbor" program, whereby she could seek rehabilitation and avoid disciplinary action for her admitted use of illegal drugs. In March 1994, when petitioner was ready to return to work, the agency had her sign a "last chance agreement," through which the agency agreed to place petitioner into a new, less stressful position and petitioner agreed, inter alia, to undergo random drug testing and to waive her rights to challenge agency actions taken as a result of any violation of the agreement. The agreement further stated that petitioner understood that "this is the Agency's final offer to rehabilitate her [and that] her failure to comply with the terms and conditions of this agreement after the effective date will be the basis for her removal from employment with [the agency]." The agreement further stated that petitioner would not receive another chance for rehabilitation and included a provision through which she waived her rights to challenge her termination before the Board. Although the agreement as a whole did not include a limitation as to time, the drug testing and waiver provisions were limited to "the twelve (12) month term of this agreement."

At the hearing before a Board Administrative Court (AJ), Agency Official A, the deciding official, testified that in late August 1995, petitioner's supervisor requested permission to give her a drug test, citing her recent workplace behavior. He further testified that after petitioner had been advised in September of the agency's intent to give her a drug test, she left the workplace. Petitioner remained out of work for over one month. In October 1995, petitioner advised the agency through her union representative, Steward B, that she had used illegal drugs during the period June-September 1995 but was now ready to return to work. On October 26, 1995, Steward B; Agency Employee C, a management official; and Dr. D, petitioner's clinical psychologist, met to discuss petitioner's return to the workplace. Dr. D testified that she advised the parties of petitioner's treatment and her readiness to return to work. She further testified that she informed them that petitioner's relapse had been caused by stress relating to a sexual assault petitioner alleged occurred in the workplace in January 1995. *fn1 Dr. D stated that there was a strong correlation between cocaine dependency and petitioner's post-traumatic stress disorder because of the alleged assault. She further testified that she informed the parties that petitioner also suffered from depression and chronic anxiety. Finally, Dr. D noted that there were no discussions regarding whether the agency would refrain from disciplining petitioner for her admitted drug use. The record indicates that petitioner returned to work.

On March 1, 1996, the agency issued a "notice of proposed adverse action," proposing to remove petitioner. The notice included one reason and specification:

Reason 1: You failed to refrain from illegal drug use. This is in violation of the [agency's] Drug-Free Workplace program and Executive Order 12564.

Specification 1: On October 27, 1995, you admitted to your manager through your NTEU representative that you used illegal drugs between June and September 1995.

The notice stated that the agency previously had given petitioner safe harbor when she admitted to having used illegal drugs in October 1993 and that the parties entered into a last chance agreement after the agency had considered terminating her for failing to comply with the requirements of the safe harbor program. The letter also noted that petitioner's manager had proposed giving her drug test in September 1995, based on "a pattern of disruptive behavior in the workplace" but that petitioner left the workplace without permission. Finally, it noted that the union sought petitioner's placement in the safe harbor program following her 1995 admission of drug use but that the agency denied the request.

Petitioner and Steward B responded to the notice in an oral proceeding before two agency officials. In her reply, petitioner disputed the agency's assertion that she did not comply with the safe harbor program in 1993 and, while acknowledging that she was "granted safe harbor" in 1993, also disputed whether she was formally enrolled in the program at the time, noting the absence of signed agreements or other official memoranda memorializing the agency's actions. Petitioner further denied the contention that she refused to take the drug test, asserting that the test would have been negative and that she decided to seek treatment for a problem that she recognized she had rather than take and pass a drug test. She also discussed the reasons for her relapse and further noted that since her return to work in October 1995 she had remained drug-free.

On April 18, 1996, petitioner received a copy of the decision letter in which the agency sustained the notice of proposed removal. The letter referred to petitioner's previous grant of safe harbor and the last chance agreement, noting in particular the provision in the agreement advising petitioner that she would not be offered another chance at rehabilitation.

At the Board hearing, petitioner testified that she used cocaine during the Fourth of July 1995 weekend, which may have included June 30, 1995, but otherwise generally denied using drugs at any other time in June or after the July fourth weekend, except for one incident in mid-September when she used drugs in an attempted suicide after the agency requested that she take a drug test. As she did during the pre-termination hearing, petitioner denied the agency's claim that she refused to take the drug test. Rather, she testified that she left the workplace in an effort to escape the stress she felt from her supervisor and to locate a union representative to protect her rights during the test. Petitioner stated that she did not return to the workplace because of her suicide attempt, after which she was hospitalized. Petitioner further stated her belief that her supervisor sought the drug test and the agency subsequently decided to remove her because she had filed a grievance and an EEO complaint against her supervisor in August 1995. Petitioner also admitted, however, that she did not "refrain" from using illegal drugs after she returned to work following her rehabilitation after the September 1993 admission of drug use.

In his testimony, Official A testified that he was vaguely aware of petitioner's grievance but had no knowledge of her EEO activity. Agency Official E, the proposing official, similarly denied knowledge of petitioner's EEO activity.

The record includes a copy of the August 1995 grievance petitioner filed against her supervisor, in which she grieved a denial of advance leave and a charge of absence without official leave. The record also includes a copy of guidelines concerning the agency's "Safe Harbor" program. The guidelines note that under Executive Order 12,564 (September 15, 1988), entitled "Drug-Free Federal Workplace," employers are required to initiate action to discipline any employee found to use illegal drugs. It notes one exception: an agency is not required to discipline an employee who voluntarily admits to illegal drug use, completes a drug rehabilitation program, and thereafter refrains from drug use.

In its Initial Decision, the Board sustained the agency's decision, finding that petitioner failed to refrain from using illegal drugs in violation of the agency's drug-free workplace program and Executive Order 12,564. The Board further rejected petitioner's affirmative defenses of disability discrimination and reprisal. Specifically, the Board ruled that although at the time of her removal, petitioner was drug-free, the agency's actions concerned her admitted drug use. The Board concluded that petitioner's "after-the-fact" rehabilitation did not make her protected under the Rehabilitation Act. It further held that petitioner failed to establish reprisal, failing to prove that Official A was aware of her EEO action at the time he issued his decision or that he was in any way implicated in the grievance that she filed against her supervisor.

Petitioner did not file a substantive petition for review herein. In her post-hearing brief before the Board, petitioner argued that the agency's decision to remove her was contrary to provisions of the Americans with Disabilities Act, 42 U.S.C. SEC. 12101, et seq. (ADA). *fn2 She noted that although the ADA expressly excludes from coverage an employee "who is currently engaged in the illegal use of drugs when the covered entity acts on the basis of such use," 42 U.S.C. SEC. 12114(a), the act further explicitly protects persons who have completed or are participating in a drug rehabilitation program and no longer are using drugs. Id. SEC. 12114(b).

Petitioner contended that at the time of her removal she no longer was a current user of illegal drugs and was participating in a rehabilitation program. She further noted that there was no evidence that she had engaged in any workplace misconduct. Addressing her reprisal claim, petitioner stated that she filed an EEO complaint and that her supervisor subsequently began to harass her. She further argued that the close proximity of time between her filing of the EEO charge and her removal supports a finding of reprisal.

ANALYSIS AND FINDINGS

The Commission must determine whether the Board's decision with respect to petitioner's allegations of discrimination constitutes a correct interpretation of the applicable laws, rules, regulations and policy directives, and is supported by the evidence in the record as a whole. See 29 C.F.R. SEC. 1614.305(c). For the reasons outlined below, the Commission concurs with the Board's findings.

Disability Discrimination

Under the Commission's regulations, an agency is required to make reasonable accommodation of the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. SEC. 1614.203(c). To establish a prima facie case of disability discrimination, petitioner must show that she is a qualified individual with a disability.

Under the Rehabilitation Act, as amended in July 1990 by section 512 of the Americans with Disabilities Act of 1990, an individual with a disability does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use. The record in this case indicates that petitioner used illegal drugs over the July fourth weekend and again in September 1995. We find, as did the Board, that petitioner is not an individual with a disability by virtue of her admitted abuse of drugs.

It is petitioner's contention that the exclusion from ADA coverage does not apply to her because her drug use ended no later than September 1995 and the agency did not make its decision to remove her until March 1996, at a time when she no longer was currently engaged in the use of illegal drugs and was involved in a drug rehabilitation program. The Commission finds, however, that the agency based its decision to remove her expressly on her admitted drug use during the June-September 1995 period.

Petitioner's subsequent rehabilitation does not thereafter bar the agency from taking adverse action predicated on her admitted violation of agency rules concerning drug use. As is well-settled, policy concerns dictate that persons who are disciplined for current drug use not be permitted to invoke the Act's protection simply by showing "after-the-fact" that they are rehabilitated. Wheeler v. Department of Justice, EEOC Petition No. 03940136 (December 9, 1994); Thomas v. Department of Veterans Affairs, EEOC Petition No. 03920076 (April 23, 1993). *fn3

We note that Dr. D testified that petitioner has post-traumatic stress disorder, depression, and chronic anxiety. These conditions, conjoined with her acknowledged good job performance, might support a finding that petitioner is a qualified individual with a disability. We find, however, that petitioner never argued that the agency either failed to accommodate her based on these conditions or terminated her because of them. In sum, petitioner's case rested on her use of illegal drugs and we find that the agency did not violate the Rehabilitation Act when it terminated her based on such use.

Reprisal

To succeed on a claim of employment discrimination based on disparate treatment, a complainant must establish an agency's discriminatory intent or motivation by either direct or circumstantial evidence. U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714 n.3 (1983). In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the Supreme Court set forth the order of proof and the allocation of burdens when a complainant relies on circumstantial evidence to prove an agency's discriminatory intent or motive.

Petitioner first must establish a prima facie case of discrimination by proving by a preponderance of the evidence -- that the agency took action against her which, if unexplained, would give rise to an inference of discriminatory motive or intent. Furnco Construction Corp. v. Waters, 438 U.S. 567, 579-80 (1978). The facts and circumstances of a case, as well as the bases of discrimination alleged, necessarily will determine the proof required to establish a prima facie case. McDonnell Douglas, 411 U.S. at 802 & n.13.

Once petitioner establishes a prima facie case, the burden of proof shifts to the agency "to articulate some legitimate non-discriminatory reason" for its actions to rebut the inference of discrimination. Id. at 802. If the agency meets its burden, petitioner bears the ultimate burden of persuading the fact finder, by a preponderance of the evidence, that the reasons offered by the agency were not the true reasons for its actions, but rather were a pretext for discrimination. Petitioner can do this by showing that a discriminatory reason motivated the agency. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

In order to establish a prima facie case of discrimination based on reprisal, petitioner must show that (1) she engaged in protected activity; (2) the agency was aware of her protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) the adverse treatment followed her protected activity within such a period of time and in such a manner that reprisal motivation may be inferred. Manoharan v. Columbia Univ. College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir. 1988); McKenna v. Weinberger, 729 F.2d 783 (D.C. Cir. 1984); Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976).

Based on the record herein, the Commission finds that petitioner has not proved reprisal discrimination. First, petitioner's grievance did not allege discrimination and thus cannot form the basis of a reprisal complaint. Second, petitioner did not establish that either Officials A or D were aware of her EEO activity at the time they proposed or sustained her removal. Petitioner thus has failed to establish a prima facie case of reprisal discrimination.

CONCLUSION

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 Board finding no discrimination. The Commission finds that the Board'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.

RIGHT TO FILE A CIVIL ACTION (W1092)

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.

LOAD-DATE: September 4, 1997

 
Notes:

*fn1 Petitioner alleged that a co-worker raped her in January 1995. Petitioner reported the matter to the Houston Police Department (HPD), which conducted an investigation but was unable to corroborate her claim either through witnesses or physical evidence. Documents in the record note that the HPD conducted a polygraph of petitioner, which indicated areas of concern regarding petitioner's allegations. The documents further indicate that HPD decided not to pursue the matter after completing its investigation.

*fn2 By amendment effective October 29, 1992, the Rehabilitation Act has been modified to incorporate the ADA standards in the context of nonaffirmative employment when determining whether it has been violated. See The Rehabilitation Act Amendments of 1992, Pub. L. No. 102-569, 106 Stat 4344.

*fn3 Having found that petitioner was not an individual with a disability because of her drug use, our inquiry under the Rehabilitation Act ends. We thus need not address petitioner's argument that the agency's actions were inconsistent with the safe harbor program.