and enrolled in an intensive inpatient treatment program at the Veterans Administration Hospital, Martinsburg, West Virginia. This was the only time that she was granted leave to seek and receive intensive medical treatment.
Despite efforts to control her problems, she continued to suffer from alcoholism and continued to be absent from her employment. On September 15, 1987 her supervisor issued a Proposed Notice of Removal because of misconduct. In lieu of that action, the Director of Personnel, Curt Dierdorff, offered her the option of signing the Last Chance Agreement. The Agreement provided that she would continue her employment in a probationary status for two years. However, if she violated any of its terms, she faced summary dismissal without any right of appeal.
Plaintiff signed the agreement but because of her medical problems, was unable to live up to its terms and was absent from work various days for the first several months in 1988. In each instance she provided her superiors with medical statements certifying that she was absent because of her then known illness. On May 23, 1988, Ms. Callicotte received a letter advising that she would be dismissed as of May 27, 1988. One day before the effective date of dismissal counsel filed a motion for a temporary restraining order ("TRO") and a preliminary injunction. Plaintiff's motion for a TRO was granted on May 26, 1988 and, by agreement with the agency, she was placed on administrative leave with pay until June 17. At the preliminary injunction hearing held on June 16, 1988, counsel agreed to extend the administrative leave status until June 20, 1988.
At the preliminary injunction hearing, the Court heard testimony from Dr. Lawrence Kline, a psychiatrist. Dr. Kline had examined plaintiff initially on September 25, 1987 and had examined and consulted with her on three subsequent occasions. Based on his initial examination, he concluded that Ms. Callicotte suffered from chronic alcoholism and acute, chronic mental depression. At the June 16, 1988 hearing, he reaffirmed his diagnosis and recommended that Ms. Callicotte seek intensive inpatient care followed by a regular program of counseling together with medication to treat her mental depression. Dr. Kline opined that if plaintiff pursued these steps, there was a reasonable likelihood that she could overcome her problems and resume her employment. Ms. Callicotte testified that she is to enter a two week inpatient program at the Seneca Rehabilitation Center, Poolesville, Md. to be followed by a four week inpatient program at Primavera, an alcoholic treatment center in Culpepper, Va. Enrollment in the programs will commence the first week of July, 1988.
A. Waiver Under the Rehabilitation Act
The immediate and principal question raised by plaintiff's motion is whether a federal employee may waive her appeal rights at all and, if so, whether this particular waiver is enforceable -- whether it was made knowingly, voluntarily and freely. Counsel for plaintiff argues that relinquishment of one's right to file a complaint based on discrimination is void as contrary to public policy citing E.E.O.C. v. Cosmair Inc., 821 F.2d 1085 (5th Cir. 1987). Government counsel refutes plaintiff's contention that such waivers are per se unenforceable, relying upon McCall v. U.S. Postal Service, 839 F.2d 664 (Fed. Cir. 1988) to argue that courts have upheld similar agreements.
The last chance agreement at issue here falls directly under the Cosmair ruling and must be declared contrary to public policy. Cosmair involved a 53 year old salesperson who had been employed with one company for 18 years. Following a notice of discharge, he signed an agreement whereby the company gave him 37 weeks in severance pay and medical benefits in exchange for an agreement waiving all rights to appeal his discharge. Despite the waiver, plaintiff brought an action before the Equal Employment Opportunity Commission ("EEOC") alleging that dismissal was solely due to his age and that any waiver of rights to file a charge was void as contrary to public policy. The Fifth Circuit agreed, holding that "a waiver of the right to file a charge is void as against public policy." Id. 821 F.2d at 1090. In doing so, that court relied principally on Town of Newton v. Rumery, 480 U.S. 386, 107 S. Ct. 1187, 1192, 94 L. Ed. 2d 405 (1987) where the Supreme Court stated: "a promise is unenforceable if the interest in its enforcement is outweighed in the circumstances by a public policy harmed by enforcement of the agreement." The Cosmair court reasoned, at page 1090, that
The public interest in private dispute settlement is outweighed by the public interest in EEOC enforcement of the ADEA . . . . . Allowing the filing of charges to be obstructed by enforcing a waiver of the right to file a charge could impede EEOC enforcement of the civil rights laws. The EEOC depends on the filing of charges to notify it of possible discrimination. . . . When the EEOC acts on this information, albeit at the behest of and for the benefit of specific individuals, it acts also to vindicate the public interest in preventing employment discrimination. (emphasis added)