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Paul Robert Roman, Appellant,
vs.
Janet Reno Counsel General, Department of Justice (Federal Bureau of Prisons), Agency
 
Case:
Hearing No. 170-93-8397X Appeal No. 01942954 Agency No. P-92-8176
 
Location:
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
 
Date:
May 9, 1997
 
OPINION: DECISION

INTRODUCTION

On April 14, 1994, Paul Robert Roman (hereinafter referred to as appellant) filed an appeal to the Equal Employment Opportunity Commission (EEOC) from the final decision of the Counsel General, Department of Justice (Federal Bureau of Prisons), (hereinafter referred to as agency) dated March 14, 1994, concerning his equal employment opportunity (EEO) complaint which alleged discrimination based on his physical disability (drug use) and reprisal in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. SEC. 791 et seq. *fn1 The appeal is accepted by this Commission in accordance with the provisions of EEOC Order No. 960.001.

ISSUE PRESENTED

The issue presented is whether appellant has shown by a preponderance of the evidence that the agency discriminated against him on the basis of his physical disability (drug use) when he was not hired for the position of Heating, Ventilation and Air Conditioning Foreman with the Federal Bureau of Prisons at Allenwood.

BACKGROUND

Appellant is an applicant for employment with the agency. He applied for the position of Heating, Ventilation, and Air Conditioning (HVAC) Foreman at its Correctional Institution at Allenwood, Pennsylvania. Appellant was nonselected for the position. He filed an EEO complaint dated September 17, 1992, alleging that the agency discriminated against him as set forth in "ISSUE PRESENTED" above.

The agency accepted appellant's complaint for investigation and thereafter, provided appellant a copy of his investigative file and appeal rights. Appellant requested a hearing by an EEOC Administrative Court. The hearing was conducted on December 17, 1993. The AJ issue a recommended decision finding no discrimination based on physical disability. *fn2 The agency issued a final agency decision in which it found that the AJ's recommended decision was supportable and found no discrimination. It is from this decision that appellant now appeals.

Appellant attended a Job Fair advertised in the paper where he found out about the position vacancy. He applied for the position at the agency's Low Security Correctional Institution on or about May 19, 1992. The agency decided to fill the position through its Veteran's Readjustment Appointment (VRA) register. Appellant was a 30% disabled veteran. *fn3 He and one other veteran were the only applicants on the register. The agency hired the other veteran who it claimed was better qualified than appellant.

The agency requested that appellant come in for a pre-employment integrity interview. During the interview, appellant, in response to questions about his drug and criminal history, revealed that he had used drugs in the past. Appellant's answers to the questions were recorded by the security specialist who conducted the integrity interview and appellant was given an opportunity to review the responses to certify their truthfulness, completeness, and correctness. Subsequently, appellant was interviewed by an interview panel consisting of three persons.

Appellant was again asked about his drug use and was also asked about his past employment. He responded that he smoked marijuana during work hours while employed by a drywall installer from June 1985 to June 1986; he was Counseled for his drug use by a Counseling service in Pennsylvania in 1985 as the result of a court order arising from his arrest in 1985 for marijuana possession; and, he completed a highway safety program and a Driving Under the Influence (DUI) intervention program in 1986 and 1987 following an arrest in 1986 for DUI.

In his investigative affidavit, appellant stated that he wished to retract the statement that he was discriminated against because of his 30% veteran's disability. He indicated that the basis of his complaint was that the agency told him the sole reason he was not hired was his admission of drug use in 1986. Appellant acknowledged that he was aware of the agency's guidelines regarding past drug use. He claimed that he did not admit during the integrity interview that he had smoked marijuana at his former place of employment during coffee or other breaks.

Appellant stated that what he admitted to was the use of marijuana on a regular basis while at his former place of employment from 1985 to 1986. He acknowledged being told by the security specialist during the interview that falsification of the interview information would result in his termination. Appellant stated that he believed he was not hired because the agency was using its guidelines to disqualify him from employment because of his drug use. He contended that under the Rehabilitation Act of 1973, he was eligible for employment at the agency's low security institution.

Appellant maintained the agency gave no specific explanation of the type of work he would be doing in the position or the type of equipment that he would be using. According to appellant, the agency only asked him what type of experience he had with chiller systems and a few basic questions about refrigeration. Appellant stated that he explained during the interview that he had experience working on a chiller system at a factory and that he was trained in using the chiller system when he went to Lincoln Technical Institute in 1989-1990. He stated that he would feel very comfortable working on a chiller system because refrigeration is fairly basic and most jobs are essentially similar.

Appellant reiterated that he had not used drugs since 1986 and that he never stated that he used drugs during coffee breaks at his place of employment. Appellant stated that, "I smoked pot on a regular basis from 1985-1986 while employed at M---- H----."

The agency officials who interviewed appellant testified unanimously that appellant was not hired because of his admission of drug use as a regular occurrence while at his former employment. The Human Resource Security Specialist who conducted the reemployment integrity interview testified that appellant's drug use exceeded the agency's 1988 guidelines for drug use for applicants inasmuch as the guidelines specifically state no drug use during work hours is allowed.

Consequently, appellant was not hired because he exceeded the security and suitability guidelines for employment within the agency. An additional reason appellant was not hired was that he was not as qualified for the position as appellant thought that he was and did not possess the knowledge, skills or abilities to adequately perform the duties of the HVAC foreman position.

An interview panel member testified that appellant admitted during the interview that he had smoked marijuana while on coffee breaks at his former place of employment and that he had used LSD and cocaine in the past. The panel member also testified that appellant had poor writing skills considered unacceptable inasmuch as appellant could not spell or complete sentences. Additionally, the panel member maintained the selectee had broader HVAC experience, more consistent with the agency's needs, than appellant.

The Human Resource Manager testified that appellant was disqualified from employment because of BOP integrity guidelines which prohibit acceptance of persons who use drugs during work hours. The Human Resource Manager stated that the primary objection was to applicants who admit to the use of drugs on the job and not to the use of drugs itself. He maintained appellant may still have qualified for the position but for his admission of drug use during work hours at his previous place of employment.

The Human Resource Manager found the selectee more qualified for the job than appellant because of his past civilian and military experience as a HVAC foreman for approximately ten years. Further, the selectee was a better candidate for the job than appellant because, in addition to appellant's unsuitability for his drug use on the job, appellant had a financial history which could have made him objectionable.

The General Foreman, who was also a member of the interview panel, testified that because of appellant's admission of drug use, he would have had a problem with appellant working for him. Further, he stated that the selectee had credentials superior to appellant's. He particularly did not feel that appellant had sufficient experience working on air conditioning equipment based on appellant's answers to interview questions.

Another interview panel member testified that appellant admitted to using marijuana from the eleventh grade until his entry into the military and then his use of marijuana resumed after his discharge from the military. He stated that appellant also admitted using cocaine and LSD. Additionally, the interview panel member stated that appellant demonstrated poor interpersonal skills during role playing exercises and did not relate well to the panel.

Further, appellant had no supervisory experience and apparently had limited experience in the HVAC area. The interview panel member stated that he perceived appellant as requiring additional training in all areas in order to function in the position and to relate to the inmates in the prison. He concluded that appellant was not selected because, in addition to his drug use, he was not the best qualified candidate.

The testimony of the persons who interviewed appellant is supported by documentary evidence including the pre-employment interview summaries and the agency's "Objection Statement Based On Drug/Alcohol History" and its "Objection Statement Based On Personal Deficiencies."

The selectee's application (SF-171) reflected work experience as an Electrician Apprentice from June to September 1982. From June 1983 to February 1987, the selectee was employed as a Heating Systems Mechanic, and from August 1987 to the then-present time, appellant was employed as a Boiler Plant Equipment Mechanic. Additionally, his application shows that the selectee gained 1500 classroom hours of training at the Altoona Vocational Technical School in HVAC and 310 classroom hours in Heating Systems while in the military. The selectee's application reflects supervisory experience of five to six employees from June 1983 to February 1987.

A letter of reference in the record from the selectee's supervisor, dated July 9, 1991, attests to the selectee's performance and leadership qualities for approximately six years. Appellant's application reflects 1200 semester hours of HVAC training at the Lincoln Technical Institute from July 1989 to April 1990. It also shows employment from June 1985 to June 1989 as a Drywall Installer. From June 1990 to the then-present time, appellant's application shows employment as a HVAC Technician.

ANALYSIS AND FINDINGS

Appellant herein has alleged employment discrimination on the basis of physical disability. The United States Supreme Court set forth the standards for the order and allocation of proof in employment discrimination cases where disparate treatment has been alleged. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under these standards, appellant has the initial burden of establishing a prima facie case. If appellant successfully establishes a prima facie case, the agency must articulate a legitimate, nondiscriminatory reason for its employment decision.

Appellant then has the ultimate burden of demonstrating by a preponderance of the evidence that the legitimate, nondiscriminatory reason the agency articulated was not its true reason but was merely a pretext for discrimination. This analytical framework which originated in the context of cases arising under Title VII also applies to cases brought under the Rehabilitation Act. Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981).

A prima facie case is not the equivalent of a finding of discrimination. It is simply proof of actions taken by the agency from which discriminatory animus may be inferred, because experience has proven that in the absence of any other explanation, it is more likely than not that those actions were bottomed on impermissible considerations. Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The elements for establishing a prima facie case are not inflexible and must necessarily vary with the factual circumstances and bases of discrimination alleged.

In the instant case, appellant may establish a prima facie case of disability discrimination by showing that he is a person with a disability within the meaning of the Rehabilitation Act and its implementing regulations and that there was a causal connection between his disability and the alleged discriminatory action complained of. Carden v. United States Postal Service, EEOC Appeal No. 01910398 (June 21, 1991).

The threshold question is whether appellant is a person with a disability within the meaning of the Rehabilitation Act. A person with a disability is defined in the regulations as one who: (1) has a physical or mental impairment which substantially limits one or more of such persons major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment. 29 C.F.R. SEC. 1614.203(a). A qualified person with a disability is defined as one who can perform the essential functions of the position with or without reasonable accommodations. 29 C.F.R. SEC. 1614.203(a) (6).

Appellant claims that he is a person with a disability because he used drugs. He also claims that he does not use drugs now and has not used drugs since an arrest in 1986. He further denies that he told the interviewers that he used drugs on his coffee breaks during duty hours at his former job.

The agency's standards for acceptability of employees state, in relevant part, that in most states the use of marijuana is a criminal offense. The illegal use by an agency employee of other drugs whether prescription or non-prescription for recreational purposes would not be tolerated. The agency further noted that if there were evidence in the background investigation of an applicant's use, or arrest for use, the following information should be obtained: (1) detailed information concerning when the illegal drugs were first used; (2) what drug(s) were used; (3) how often the drugs were used; (4) the last time the drug was used; (5) any treatment for drug usage; and, additionally, the applicant should be advised that the illegal use of drugs by an employee of the agency would not be condoned.

Appellant's background information elicited during the integrity interview and the panel interview revealed, as noted above, that appellant had used drugs; he had an arrest for possession of drugs; he had used drugs on a regular basis while at work. Appellant testified at the hearing that he used cocaine and LSD while in high school.

He further testified that following his conviction for marijuana possession, the Court sentenced him to go to a Counseling Center where it could be determined by a Counselor whether he needed rehabilitation for drug use. He stated that during his one-on-one interview with the Counselor, the Counselor felt that he did not need rehabilitation for drug use. Appellant testified that he had no arrests or convictions for drug use since 1986.

While appellant admittedly used drugs, he has not established a prima facie case of disability discrimination. He has not shown that he is a person with a disability which substantially limited one or more of his major life activities. The Rehabilitation Act of 1973 was amended by the Americans with Disabilities Act of 1990 (ADA). As a result, the employment standards of the ADA, in large part, are applicable to employment discrimination complaints arising under the Rehabilitation Act.

The ADA signed into law on July 26, 1990, applies to this case which arose in 1992, after the ADA became law. Tommy Thomas v. Veterans Administration, EEOC petition No. 03920076 (April 22, 1993). Specifically, Title V, Section 512 is applicable. Section 512 of Title V amends Section 7(8) of the Rehabilitation Act to exclude persons who currently engage in the illegal use of drugs from the definition of a person with a disability. The amendment states:

(c) (i) For purposes of Title V, the term individual with [disabilities] does not include an individual who is currently engaging in the illegal use of drugs when a covered entity acts on the basis of such use.

(ii) Nothing in clause (i) shall be construed to exclude as an individual with [disabilities] an individual who:

(I) has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use;

(II) is participating in a supervised rehabilitation program and is no longer engaging in such use; or

(III) is erroneously regarded as engaging in such use, but is not engaging in such use.

With regard to the ADA protection of persons "regarded as" engaging in the illegal use of drugs, but not engaging in such use, item (c) (ii) (III) above, "if an employer did not regard the individual as an addict, but simply as a social user of illegal drugs, the individual would not be "regarded as" an individual with a disability and would not be protected by the ADA." A Technical Assistance Manual on the Employment provisions (Title I) of the Americans with Disabilities Act, U.S. Equal Employment Opportunity Commission, January, 1992, page VIII-4.

Based on the evidence of record, appellant does not fall within any of the above exceptions to the exclusion of drug users from the Act's protection. Appellant testified that he was never involved in a supervised drug rehabilitation program and that he was not currently using drugs.

The Commission finds, based on the evidence of record, that appellant has failed to establish a prima facie case of disability discrimination. Even assuming arguendo that appellant established a prima facie case, the agency articulated a legitimate, nondiscriminatory reason for its employment decision. The agency stated that even without considering appellant's drug use, the selectee was better qualified for the position than appellant.

Appellant has not met his burden of showing by preponderant evidence that the agency's articulated reason was pretextual. Therefore, the Commission finds, as did the AJ, that the agency did not discriminate against appellant on the basis of his disability as alleged.

CONCLUSION

For the reasons stated, and based on the evidence presented, it is the decision of this Commission to AFFIRM the FAD finding no discrimination.

LOAD-DATE: June 16, 1997

 
Notes:

*fn1 Appellant alleged reprisal against him because of his drug use. This is not a basis of reprisal under Title VII. The agency did not address this allegation in its final agency decision and it will not be further addressed in this decision.

*fn2 Although the AJ found appellant was not subjected to discrimination, the AJ discussed the agency's guidelines regarding prior illegal drug usage and agency employment. The AJ stated that the operation of the agency's guidelines "may be violative " of the Commission's regulations. However, given the AJ ultimately found no discrimination, the AJ's discussion regarding the operation of the agency's guidelines is dicta.

*fn3 While appellant's veteran disability was an injury to his left knee, this was not the basis of his disability claim.