the initial proposed removal to a ten-day suspension and then allowing him to participate in a government-affiliated alcohol program. But an agency does not "reasonably accommodate" an alcoholic employee by keeping score of alcohol-induced, pre-treatment transgressions and reviving them post-treatment for purposes of cumulation with non-alcohol-related misconduct to produce an aggregate disciplinary record warranting more severe punishment. Pre-treatment records certainly remain relevant to gauge how successful treatment has been, or whether the disease process is so far advanced as to be unamenable to treatment or accommodation. In a disciplinary context, however, "reasonable accommodation" of an alcoholic employee requires forgiveness of his past alcohol-induced misconduct in proportion to his willingness to undergo and favorable response to treatment. Use of pre-treatment records conceded to be attributable to alcohol abuse for disciplinary purposes is inconsistent with the legislative perception of alcoholism as a disease, and behavioral problems a part of the symptomatology rather than the product of volitional acts of dissipation. See McKelvey v. Walters, 596 F. Supp. 1317 (D.D.C.1984). Moreover, knowledge that his employer may resurrect his alcohol-related infractions for penalty-enhancement purposes if he errs in the future may well be a disincentive for the alcoholic employee to enter, continue or complete necessary treatment.
Since the Court, in its review of the sufficiency of the MSPB's disposition of the discrimination claim as presented to it, and in advance of any de novo trial here, has determined that DPS and the MSPB did not properly exclude pre-treatment violations from its compilation of Walker's disciplinary record upon which his removal was predicated, the agency decision must be remanded for reconsideration of an appropriate penalty on his record sans those offenses.
Walker also claims that the tardiness and absences reflected in his post-treatment disciplinary record would never have risen to a level justifying any punishment, much less removal, absent his immediate supervisor's desire for revenge. Reprisal against an employee because of his disclosure of a suspected abuse of authority by a supervisor is likewise a prohibited personnel practice. 5 U.S.C. § 2302(b)(8)(A)(ii). Walker believes the reprisal was inspired by a letter he wrote to his supervisor's superiors in January, 1979, charging an abuse of authority, in consequence of which the immediate supervisor was required to offer Walker an apology.
The MSPB failed to mention Walker's reprisal claim in either its initial decision or its final order which obviously found it without merit. In order for a court to review any agency decision, "the agency [must] articulate with reasonable clarity its reasons for decision, and identify the significance of the crucial facts. . . . The court must not be left to guess as to the agency's findings or reasons." Greater Boston Television Corporation v. FCC, 143 U.S. App. D.C. 383, 444 F.2d 841, 851 (D.C.Cir.1970), cert. denied, 403 U.S. 923, 91 S. Ct. 2233, 29 L. Ed. 2d 701 (1971). Since the MSPB failed to give any reason whatsoever for its implicit determination that no reprisal was involved, the case must also be remanded to give it an opportunity to do so.
For the foregoing reasons, therefore, it is, this 14th day of January, 1985,
ORDERED, that defendants' motion to dismiss or for summary judgment is denied; and it is
FURTHER ORDERED, that plaintiff's motion for judgment on the pleadings is granted in part, and MSPB Docket No. DC 07528110719 is remanded to the MSPB for reconsideration in accordance with the foregoing; and it is
FURTHER ORDERED, that this case is scheduled for a further status conference on April 15, 1985, at 9:30 a.m.