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CALLICOTTE v. CARLUCCI

June 23, 1988

BETTY M. CALLICOTTE, Plaintiff,
v.
FRANK C. CARLUCCI, III, Defendant


Barrington D. Parker, Senior United States District Judge.


The opinion of the court was delivered by: PARKER

(Granting Preliminary Injunction)

 BARRINGTON D. PARKER, SENIOR UNITED STATES DISTRICT JUDGE

 On June 20, 1988, an order granting preliminary injunction was entered in this proceeding with an explanation that a detailed opinion would follow. This Memorandum Opinion provides the reasons for the entry of that Order.

 * * *

 Plaintiff Betty M. Callicotte, an employee at the Defense Mapping Agency, Department of Defense ("DMA" or "Mapping Agency"), brings this discrimination action alleging that the DMA failed to accommodate her dual handicap of chronic alcoholism and acute chronic mental depression. Asserting that she was wrongfully discharged and that her rights under the Rehabilitation Act of 1973 ("Act"), 29 U.S.C. § 791, et seq. were violated, she seeks a preliminary injunction, staying removal, pending an adjudication of the merits of her claim before an appropriate administrative hearing, or alternatively, before this Court.

 The government opposes Ms. Callicotte's motion on two grounds: first, that her legal challenge is barred because she signed a "Last Chance Agreement" ("LCA") in which she waived a right to appeal her removal "in any forum whatsoever." In the event that the agreement is declared unenforceable, the government also contends that plaintiff has not met the standard for the issuance of a preliminary injunction. Specifically, government counsel argues that the DMA has satisfied the requirements of the Act in attempting to accommodate Ms. Callicotte's handicap and that she has not demonstrated any irreparable injury if relief were denied.

 For the reasons set forth below, the Court concludes that the Last Chance Agreement does not preclude plaintiff from challenging her dismissal and that a preliminary injunction is warranted pending an adjudication of plaintiff's claims.

 I.

 BACKGROUND

 Ms. Callicotte is a retired captain from the United States Air Force, following an 11-year military career. She has been a government civilian employee since 1978 and has been employed as a Personnel Management Specialist GS-11 step 6 at the Defense Mapping Agency since 1981.

 There is no dispute that Ms. Callicotte has suffered from alcoholism both before and since her employment at the DMA. The undisputed testimony also shows that two members of her immediate family likewise suffer from alcoholism, her mother and her only sibling, a younger brother. Because of her alcoholism, plaintiff's employment record has been unsteady. On various occasions she has received reprimands for insubordination, failing to report to work and failing to complete assignments. However, the government candidly concedes that her work performance was a direct result of her disease. (Last Chance Agreement para. 2(b) & (c).)

 During the period of her tenure with the DMA, Ms. Callicotte has attempted to combat and overcome her disease, albeit unsuccessfully. In 1982, she voluntarily entered an outpatient rehabilitation program. During the summer of 1984, she again sought counseling and participated in an Alcoholics Anonymous Program. In April 1987, she was given a 30-day unpaid leave of absence 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 ...


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