The opinion of the court was delivered by: JACKSON
Plaintiff Clarence E. Walker, Jr., a recovered (or recovering) alcoholic, brings this handicap discrimination suit and simultaneous Merit Systems Protection Board ("MSPB") appeal against his former employer, the U.S. Department of Defense, and the Secretary of Defense, for reinstatement and back pay to redress his allegedly wrongful dismissal, effective July 3, 1981, as a WG-4 printed-materials "packer" for the Defense Printing Service ("DPS") located at the Washington Navy Yard.
Walker claims that DPS discriminated against him as a handicapped employee in violation of section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791, and the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment, and Rehabilitation Act of 1970 ("Alcohol Rehabilitation Act"), 42 U.S.C. § 290dd, in failing to accord him a reasonable accommodation of his alcoholism by cumulating a series of unauthorized absences antedating his treatment for, and concededly resulting from, his alcohol abuse with others occurring thereafter to justify a disciplinary dismissal for which neither group alone would have been sufficient. His MSPB appeal presses his contention that the MSPB upheld an agency decision, i.e., his dismissal, which originated in one or more personnel practices prohibited under 5 U.S.C. § 2302(b), and, in consequence, the MSPB's findings and conclusions must be deemed arbitrary and capricious, or otherwise not in accordance with law. 5 U.S.C. § 7703(c)(3). Specifically, Walker asserts that DPS dismissed him because he was an alcoholic, such action being unlawful discrimination against one with a handicapping condition under 5 U.S.C. § 2302(b)(1)(D),
and that the dismissal was instigated by a supervisor in reprisal for his revelations of the supervisor's abuse of authority, likewise a practice prohibited by 5 U.S.C. § 2302(b)(8)(A)(ii).
The matter is now before the Court on defendants' motion to dismiss or for summary judgment and plaintiff's cross-motion for judgment on the pleadings. Sufficient facts appear from the MSPB record and the pleadings to be without dispute for the purpose of the disposition made of the motions hereby, and for the reasons hereinafter set forth the Court will deny defendants' motion, grant the plaintiff's motion in part, and remand the case to the MSPB for reconsideration in accordance herewith.
Approximately three months after his treatment concluded Walker was again charged with six additional violations of agency leave policy which culminated in his actual removal on July 3, 1981. He appealed to the MSPB on July 23, 1981. The MSPB official who presided at the hearing dismissed two charges -- a February 4, 1981, AWOL and an April 13, 1981, "disobedience to constituted authority" -- as not sustained by the evidence, and she reduced another charge of 54 minutes' AWOL to 15 minutes. The three remaining AWOLs were found to have been proved as charged, but, believing the penalty of removal to be "unduly harsh" given the relatively trivial nature of the offenses, the presiding official reduced the penalty to a 30-day suspension.
The Board disagreed with her, however, and reinstated DPS' decision to remove. Expressly adverting to, and adding, Walker's more serious pre-treatment record to the post-treatment violations, the Board found that removal was reasonable in the circumstances and would "promote the efficiency of the service." 12 MSPB 406.
Walker does not contest any portion of his disciplinary record incurred pre-treatment. He agrees that he committed the underlying violations and that (assuming he deserved punishment at all) the penalties were fair. As to the post-treatment violations remaining on his record after the MSPB proceedings, Walker similarly has no substantive dispute. He says only that, were it not for his supervisor's desire to be avenged for the complaints Walker had made about him, those modest infractions would not have incurred discipline at all.
His principal contention, however, is that the sanction of removal is excessive even in the absence of a retaliatory taint. Removal might be appropriate if his pre-treatment and post-treatment disciplinary record could properly be considered in the aggregate, he argues, but an indiscriminate combination of both sets of violations to justify a penalty supposedly proportionate to the total culpability they purport to reflect is inconsistent with the anti-discrimination statutes and regulations, because it effectively punishes him for what has been legislatively decreed an illness.
As a "mixed case" involving both an original discrimination complaint and an MSPB appeal, each part of the case must be evaluated by a different standard. Walker's claim to have been a victim of discrimination as one "handicapped" by alcoholism comes to this Court for de novo determination. 5 U.S.C. §§ 7702(a)(1)(B)(iii), 7703(b)(2) and (c). The usual agency appeal standards govern the MSPB appeal from the alleged "prohibited personnel practices" of discrimination and reprisal: non-factual determinations must not be arbitrary, constitute an abuse of discretion, or be otherwise not in accordance with law, and factual determinations must be supported by substantial evidence. 5 U.S.C. §§ 7703(a)(1) and (c).