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WHITLOCK v. DONOVAN

November 6, 1984

GEORGE L. WHITLOCK, Plaintiff,
v.
RAYMOND J. DONOVAN and UNITED STATES DEPARTMENT OF LABOR, Defendants



The opinion of the court was delivered by: GESELL

This case concerns an alcoholic employee who was terminated from his federal employment because his condition caused him to be frequently and unexpectedly absent from work and eventually seriously interfered with his otherwise satisfactory performance of his duties. Claiming that the Department of Labor failed to make "reasonable accommodation" to his condition before firing him, plaintiff seeks reinstatement and back pay. The Court has jurisdiction under the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794, and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16. The Court conducted a trial de novo of plaintiff's discrimination claim, *fn1" and this Memorandum constitutes the Court's findings of fact and conclusions of law.

 I. Introduction

 Plaintiff was fired by the Department of Labor in May 1983, because of repeated absences after various efforts had been made to counsel him toward treatment for his alcoholism. Whitlock was a GS-6, step 8 supervisor who had had 23 years of federal service prior to his discharge. Other than alcoholic absences his work performance was not only satisfactory but often deemed superior.

 There is no dispute that plaintiff is an alcoholic. He joined the Department of Labor in 1975 but indeed had been an alcoholic since the age of 10. An alcoholic has a disease. He is the victim of a handicap which becomes progressively worse unless successfully treated. Alcoholics typically deny their handicap and conceal, excuse and even lie about their drinking and the problems it causes them at home and at work. Treatment of alcoholism focuses initially on a basic need to force the alcoholic to recognize his handicap. In employment situations, both private and public, this is usually done by presenting the employee, hopefully at an early stage, with a clear choice between either accepting intervening therapy designed to break the barriers of denial and avoidance or facing the definite loss of job and status.

 The nature of the intervening therapy provided varies considerably. There is peer support such as provided by Alcoholics Anonymous and many types of counseling which employ intensive outpatient therapy or a mixture of in-patient care for a period of time followed by careful monitoring on an out-patient basis. All programs require continuous counseling after the initial detoxification, and of course such counseling can only work if the patient is motivated to seek it and to continue it, having accepted that he has an alcoholism problem.

 Plaintiff has now been sober for more than a year following seven months of intensive in-patient treatment at St. Elizabeth's Hospital. He contends that the Department of Labor failed in several respects to meet its statutory obligation reasonably to accommodate to his handicap before termination. First, he contends that the Department should have more forcefully presented to him at an earlier stage than it did a clear choice between entering treatment or losing his job. Second, he contends the Department failed to follow up on the treatment he did enter when he stopped attending after a few successful months of therapy. In these two respects, he contends the Department's intervention was "too little, too late." Finally, he contends that when he was fired nearly a year after he stopped the recommended treatment, he was not presented with the reasonable option of taking a long leave without pay for intensive in-patient treatment or accepting disability retirement.

 Before reviewing plaintiff's federal employment experience, with particular reference to his alcohol problems, it is necessary to untangle the variety of laws and regulations that establish a federal employer's obligation to its alcoholic employees. That will bring into focus the basis for plaintiff's claims.

 II. Applicable Statutes and Regulations

 Alcoholism is a handicapping condition for purposes of the handicap discrimination protections of the Rehabilitation Act of 1973. Both the Attorney General, 43 Op. Att'y Gen. No. 12 (1977), and the Secretary of the then Department of Health, Education and Welfare, 42 Fed. Reg. 22686 (May 4, 1977), have so concluded, *fn2" and the courts are in accord. See, e.g., Tinch v. Walters, 573 F. Supp. 346, 348 (E.D. Tenn. 1983); Simpson v. Reynolds Metals Co., 629 F.2d 1226, 1228, 1231 n.8 (7th Cir. 1980); Davis v. Bucher, 451 F. Supp. 791, 796 (E.D. Pa. 1978). Federal alcoholic employees who are using alcohol excessively are protected only under one section of the Act, Section 501, whereas other federally employed individuals who are handicapped by other conditions or are rehabilitated alcoholics also enjoy the protection of Section 504 of the Act. *fn3"

  Under Section 501 of the Act, federal agency employers such as the Department of Labor have a duty of affirmative action toward handicapped employees and applicants. *fn4" Indeed, the statute was strengthened in 1978 to make clear that any handicapped federal employee had a private right of action to enforce his right to receive affirmative action. See section 505(a), 29 U.S.C. § 794a(a)(1). *fn5" Members of Congress indicated in 1978 that Section 501 was intended to make the federal government a "leader" or "model employer" of the handicapped. *fn6" In addition, regulations of the Equal Employment Opportunity Commission under the statute emphasize the general policy of the federal government to "become a model employer of handicapped individuals." 29 C.F.R. § 1613.703. Thus this affirmative-action obligation is more than a requirement of non-discrimination or even-handed treatment. See Shirey v. Devine, 216 U.S. App. D.C. 369, 670 F.2d 1188, 1201 (D.C. Cir. 1982); Southeastern Community College v. Davis, 442 U.S. 397, 410, 60 L. Ed. 2d 980, 99 S. Ct. 2361 (1979). Federal agency employers are required to make "reasonable accommodation" to the limitations of a handicapped employee unless the agency can show such accommodation would impose an "undue hardship" on its operations. 29 C.F.R. § 1613.704. *fn7"

 These statutes viewed together in the light of their legislative history show Congress's firm intention to require federal employers to exert substantial affirmative efforts to assist alcoholic employees toward overcoming their handicap before firing them for performance deficiencies related to drinking. It is this duty, which is subsumed under the "reasonable accommodation" requirement of Section 501(b) of the Rehabilitation Act and the regulations of 29 C.F.R. § 1613.704, that plaintiff has invoked.

 A precise statement of the government's concept of its duty reasonably to accommodate an alcoholic employee cannot be found in any single regulation or personnel directive but can be ascertained from directives scattered through a number of publications of the U.S. Office of Personnel Management. These publications are not altogether consistent or clear, and some of them are advisory while others are mandatory. *fn9" There is a wide variation in the alcoholism programs of various federal agencies. Some appear to be pro forma while others, such as the Government Printing Office, have extensive programs. This variation possibly reflects both uncertainty in the standards to be applied as well as increasing concern and evolving knowledge about the alcoholism problem in some agencies.

 The most extensive statement of reasonable accommodation duties to alcoholic employees is found in Federal Personnel Manual System Supplement 792-2, Alcoholism and Drug Abuse Programs (1980). *fn10" This provides that where a supervisor suspects alcohol is the reason for poor performance by an employee, the supervisor is directed among other things to

 
Conduct an interview with the employee focusing on poor work performance and inform the employee of available counseling services if poor performance is caused by any personal or health problem.
 
If the employee [subsequently] refuses help, and performance continues to be unsatisfactory, provide a firm choice between accepting agency assistance through counseling or professional diagnosis of his or her problem, and cooperation in treatment if indicated, ...

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