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LEMERE v. BURNLEY

March 22, 1988

Mary Kathleen Lemere, Plaintiff
v.
James H. Burnley, IV, Secretary of Department of Transportation, Defendant



The opinion of the court was delivered by: REVERCOMB

 George H. Revercomb, Judge

 Plaintiff Mary Kathleen LeMere filed this action to appeal the final decision of the Merit Systems Protection Board ("MSPB) upholding the Department of Transportation , Federal Aviation Administration ("FAA") in its termination of her employment as a GS-13 Contract Specialist as the result of ongoing attendance and performance problems linked to alcoholism. In the Complaint, plaintiff seeks reversal of the MSPB affirmance on the grounds that the FAA's decision to terminate her employment was arbitrary, capricious, not supported by substantial evidence, and otherwise contrary to law. 5 U.S.C. sec. 7703(b)(2). Plaintiff also maintains that the FAA violated the Rehabilitation Act, 29 U.S.C. sec. 791. *fn1" by terminating her employment in lieu of accommodating her handicap of alcoholism by means of a leave of absence that would have enabled her to enroll in an intensive in-patient alcoholism treatment program. On the cross-motions for summary judgment now before the Court, the only question presented is the extent to which the Rehabilitation Act compels a federal employer to accommodate an employee's recurrent alcoholism before terminating the individual's employment. The Court will grant summary judgment for defendant because, on the undisputed material facts, the Court concludes that the FAA fulfilled its duties to Ms. LeMere under the Rehabilitation Act prior to terminating her employment.

 I. The Facts

 The material facts in this case are drawn from plaintiff's personnel records and from the transcript of administrative proceeding below. *fn2" Plaintiff was employed by the FAA for six years as a contract specialist prior to her termination on April 23, 1986. Tr. 97 - 98. Ms. LeMere is an acknowledged alcoholic and, starting in early 1984, the effects of disease became apparent at her job. Tr. at 99. On some days, she appeared for work intoxicated, and she also experienced seizures related to alcohol withdrawal. Dr. Barton Pakull, an FAA psychiatrist, observed plaintiff on some of these occasions and ultimately, in July 1984, drove plaintiff to the Bethesda Naval Hospital ("Bethesda") for treatment at its in-patient detoxification unit. The FAA advanced Ms. LeMere approximately five weeks of sick leave to enable her to complete this program.

 When plaintiff returned to work, she evidently remained sober for a short period of time but experienced a relapse during the autumn of 1984. This relapse, like plaintiff's previous bout with the disease, was accompanied by difficulties with colleagues and private industry contractors as well as by unscheduled absences from the office. *fn3" See Tr. at 5. Accordingly, in November 1984 and again in February 1985, the FAA issued plaintiff leave restriction letters. In March 1985 plaintiff obtained legal counsel to assist her with her escalating employment difficulties, but, despite the intervention of counsel, the FAA suspended plaintiff for two days in the summer of 1985.

 On August 19, 1985, the FAA issued plaintiff a letter of proposed termination. When Ms. LeMere's counsel informed the FAA that she again had voluntarily entered a hospital's detoxification unit, the FAA rescinded the termination and granted Ms. LeMere a second leave of absence to facilitate treatment.

 Shortly after her completion of treatment in September 1985, Ms. LeMere returned to work. Unfortunately, she experienced another relapse in November 1985. The FAA monitored Ms. LeMere's problems and, on February 27, 1986, issued a second notice of proposed termination. After negotiations with plaintiff's counsel, however, the FAA agreed on April 10, 1986 to stay plaintiff's termination and to give her a minimum of three months' leave without pay, but only if plaintiff fulfilled two conditions: (1) within three working days of the date of the letter, provided the signatory of the letter with a signed statement of her agreement and intention to get help; and (2) within six working days from the date of the letter supplied a report from a prospective treating physician outlining a proposed alcoholism treatment program and follow-up. The FAA's decision to stay the termination also was "contingent upon [plaintiff's] successful completion of the approved rehabilitation program." See Wilson Letter of April 10, 1986.

 Plaintiff first responded to this letter on April 15, 1986, when she sent the FAA a written statement indicating her agreement and intention to seek treatment for her alcoholism. In this letter, plaintiff also stated that she would meet with staff at Bethesda on April 21, 1986 for a referral to another alcohol rehabilitation program. *fn4" However, as she notified her supervisor in a telephone call the next day, plaintiff did not keep the April 21st appointment because she was intoxicated and could not drive. Tr. at 104. During the April 22nd telephone call, which plaintiff cannot recall because she continued to be intoxicated, she informed her supervisor that she would not come to work on April 22nd but more significantly, according to the supervisor's notes, stated that it was "ridiculous" for her to pursue further treatment for her alcoholism. See Note of G.B. Davey, Attachment 6 to Plaintiff's Memorandum. *fn5" Following this conversation, the appropriate FAA official immediately sent Ms. LeMere a mailgram terminating her employment because of her failure to comply with the conditions in the April 10, 1986 letter. See Wilson Telegram, Attachment 7 to Plaintiff's Memorandum.

 Plaintiff exhausted her administrative remedies.

 II. Applicable Statutes and Regulations

 Alcoholism is a handicapping condition for purposes of the Rehabilitation Act, 29 U.S.C. sec. 791(b) ("the Act"). Whitlock v. Donovan, 598 F. Supp. 126, 129 (D.D.C. 1984), aff'd sub nom. Whitlock v. Brock, 252 U.S. App. D.C. 403, 790 F.2d 964 (D.C. Cir. 1986). The Act requires federal executive agencies such as the Department of Transportation, Federal Aviation Administration ("FAA") to submit affirmative action program plans for the "hiring, placement and advancement of individuals with handicaps" to the Equal Employment Opportunity Commission ("EEOC"). 29 U.S.C. sec. 791(b). The EEOC in turn has promulgated regulations setting forth the policy under which the executive agencies must establish and implement these programs. 29 C.F.R. sec. 1613.701(a). Specifically, the EEOC has stated that:

 
an agency shall make reasonable accommodation to the known physical or mental limitations of a qualified handicapped applicant or employee unless the agency can demonstrate that the accommodation would ...

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