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Wallace C. Alexander, Appellant,
vs.
Jesse Brown, Secretary, Department of Veterans Affairs, Agency
 
Case:
Hearing No. 220-95-5266X Appeal No. 01961777 Agency No. 95-0352
 
Location:
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
 
Date:
May 1, 1997
 
OPINION: DECISION

On December 19, 1995 appellant timely filed an appeal from the final decision of the agency dated November 30, 1995 concerning his complaint of unlawful employment discrimination in violation of SEC. 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. SEC. 791 et seq. The appeal is accepted in accordance with 29 C.F.R. SEC. 1614.401.

ISSUE PRESENTED

Whether appellant was discriminated against on the bases of drug dependency (cocaine) and alcoholism when he was issued a notice of removal.

BACKGROUND

Appellant filed an EEO complaint alleging, in relevant part, the above issue. Thereafter, there was an investigation and a hearing before an Equal Employment Opportunity Commission Administrative Court (AJ). The AJ issued a recommended decision finding no discrimination, which the agency adopted.

Appellant formerly worked for the agency as a part-time housekeeping aid. His regular schedule was Saturday and Sunday. On July 25, 1994, during his probationary period, appellant was issued a notice of removal, effective the close of business on August 14, 1995. On August 11, 1994 appellant submitted a resignation letter effective just before the close of business on August 14, 1994.

The removal letter charged appellant with undependability and absence without leave (AWOL). Previously, in March 1994, appellant received a letter of warning from his supervisor for being AWOL on February 26, 1994 and February 27, 1994. Appellant did not report to duty those days nor call in for leave, even though he was scheduled to work. The letter warned appellant that any further AWOLs could result in his removal.

After appellant was AWOL again on July 3, 1995, he was issued the removal letter. Appellant did not report to work on July 3rd, nor call in for leave even though he was scheduled to work. The record suggests that the charge of undependability in the removal letter was based on appellant's AWOLs.

Appellant indicated that his AWOL absences were due to his ingestion of cocaine and alcohol, which he attributed to his drug dependency and alcoholism.

The record reflects that in 1988 or 1989, appellant was an inpatient for about two weeks in a treatment program for drug dependency and alcoholism. He completed a similar 28-day inpatient treatment program in early 1991. From February 1991 to August 1992, appellant was an inpatient in a domiciliary treatment program with a Veteran's Hospital. There, he was diagnosed with cocaine dependence and alcoholism.

Appellant averred that he informed his immediate supervisor of his alcoholism and drug addiction. The immediate supervisor denied this. Appellant further averred that after receiving his removal notice, but before his resignation, he informed the Chief of the Environmental Service of his disability, and requested reasonable accommodation. The Chief countered that he did not know of appellant's disability until he was contacted by the EEO investigator. This occurred in January 1995.

Appellant averred that he was entitled to the reasonable accommodations of firm choice and time off for rehabilitation. Firm choice involves suspending a removal action in exchange for the employee making a firm choice between completing treatment and being disciplined, up to and including removal.

The AJ found appellant had the disability of alcoholism. She found a causal nexus between appellant's alcoholism and drug abuse and his AWOLs, and that appellant was a qualified individual with the disability of alcoholism. The AJ found that under the Rehabilitation Act, agencies are not required to provide a firm choice. The AJ also found that the agency properly did not provide appellant with reasonable accommodation because appellant's managers were unaware of his alcoholism and drug dependency, and appellant did not request a reasonable accommodation. She based this finding on testimonial and other evidence in the record.

Appellant also argued that he was disparately treated on the basis of his disability when he was removed. The AJ found appellant failed to prove he was disparately treated.

On appeal, appellant makes no comment.

ANALYSIS AND FINDINGS

Drug Use

Appellant does not have a disability, as defined by the Rehabilitation Act, as amended, based on his cocaine use. The Rehabilitation Act, at 29 U.S.C. SEC. 706(C)(i), provides that "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."

Appellant testified that the AWOLs upon which the agency based its removal were caused by his ingestion of alcohol and cocaine. With regard to the use of cocaine, this conduct falls within the above cited provision of the Rehabilitation Act. Harris v. United States Postal Service, EEOC Petition No. 03940159 (December 15, 1994). Accordingly, appellant is not an individual with a disability by virtue of his cocaine dependency within the meaning of the

Rehabilitation Act.

Alcohol Use

It is well established that alcoholism is a disabling condition for the purposes of the disability discrimination protection of the Rehabilitation Act of 1973. Ruggles v. Department of the Navy, EEOC Petition No. 03840216 (November 17, 1989). The finding by the AJ that appellant is an alcoholic is supported by the record.

As appellant is a person with a disability, the next question is whether there was a nexus between his disability and the charges upon which his removal was based. Appellant is not protected by the Rehabilitation Act to the extent the AWOLs upon which his removal was based were caused by his cocaine use. Given his drug use, and the lack of any evidence, testimonial or otherwise regarding the extent to which appellant's drinking alcohol contributed to the AWOLs, appellant failed to establish a causal nexus between his AWOLs and his alcoholism. Accordingly, appellant has not shown that his removal should be reversed because the agency failed to provide a reasonable accommodation.

However, even if appellant established a causal nexus, he still would have failed to establish that he was improperly denied a reasonable accommodation. 29 C.F.R. SEC. 1614.203 provides in relevant part that an agency shall make reasonable accommodation to the known physical or mental limitations of an employee with a disability. Further, the employee must ask for a reasonable accommodation. The AJ's findings that appellant's managers were not aware of appellant's alcoholism and he did not request a reasonable accommodation while employed with the agency are supported by the record. *fn1 Appellant also contended that he was entitled to a firm choice. Pursuant to amendments to the Rehabilitation Act on October 29, 1992, agencies are no longer required to provide a firm choice. Johnson v. Department of the Interior, EEOC Petition No. 03940100 (March 28, 1996).

Finally, the Commission agrees with the finding of the AJ that appellant failed to prove he was disparately treated or otherwise discriminated against on the basis of his disability of alcoholism when he was removed.

Accordingly, the final agency decision which adopted the AJ's recommended decision of no discrimination is affirmed.

LOAD-DATE: June 16, 1997

 
Notes:

*fn1 Appellant contended that other agency personnel were aware of his disability of alcoholism. These people, however, were not appellant's managers and were not involved in the removal action.