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WALKER v. WEINBERGER

January 14, 1985

Clarence E. WALKER, Jr., Plaintiff,
v.
Caspar W. WEINBERGER, et al., Defendants



The opinion of the court was delivered by: JACKSON

 JACKSON, District Judge.

 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. *fn1"

 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.

 I.

 Walker began work for DPS in 1978. His transgressions against the agency's leave policy began approximately a year later, consisting for the most part of absences without leave ("AWOL"). He was disciplined with progressive severity on three occasions for a series of violations preceding each before receiving a "notice of proposed removal" on October 1, 1980. *fn3" Walker then revealed to DPS that he was an alcoholic, and the agency relented, reducing his removal to a ten-day suspension and allowing him to be hospitalized under a government alcohol counselling and assistance program. Walker states, and defendants affirm, that alcohol ceased to be the cause of any of his work-related problems thereafter.

 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. *fn4" 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.

 II.

 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. *fn5"

 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).

 III.


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