readily noticeable or which do not trigger denial mechanisms in employees. Although this Court declines to try to set an exact standard for how much knowledge is required to trigger the protections for employees suffering from alcoholism, it does concludes that defendant in the instant case did not have enough "signs" to require that it take steps to try to help Mr. Fong treat his alcoholic condition before discharging him.
The statement by the co-worker to the supervisor about Mr. Fong apparently came considerably before Mr. Fong started piling up excessive numbers of absences. While the supervisor could have approached Mr. Fong at that time, there is nothing in the law that requires that federal employers act as general psychological and medical counselors to employees whose purported problems have not manifested themselves at work. The supervisor also could have noted the comments in Mr. Fong's personnel record, but the Court knows of no obligation to do so; indeed, it may be objectionable in many quarters to place such rumours about unspecified personal "problems" in an employee's records. Finally, although the statement might be enough to constitute "constructive notice" in a business contract case, the Court concludes that a federal employer need not "remember" such statements when work problems arise much later, especially when the supervisor to whom the statements were told is not the one handling the discipline of the employee.
In addition, the Court concludes that the fact that Mr. Fong's supervisors "raised" the possibility of alcoholism does not mean that the protections are triggered. The possibility of alcoholism always exists when an employee is often absent; so are the possibilities of drug abuse, gambling, and a host of other things. Without any more evidence at the time of alcoholism -- for example, co-workers mentioning alcohol on the employee's breath -- the employer should not be penalized merely for raising the issue and then dropping it for lack of additional evidence. To engage in a subjective analysis into the thoughts of supervisors might encourage supervisors to "keep quiet" about possible suspicions and thus paradoxically decrease the number of times when employees actually receive help for their alcoholism. Focusing on an objective standard -- Should the employer have known of the alcoholism? -- rather than a subjective test -- Did the employer ever actually raise the issue? -- seems preferable to this Court.
A final factor convincing the Court that defendant acted reasonably was that Mr. Fong consistently gave other explanations -- car trouble, etc. -- for the absences that he now says were caused by alcohol, just as he gave the explanation that most of his absences were due to back trouble -- allegations that apparently turned out to be true. Indeed, the defendant's chief complaints about the absences that were not related to back problems were that Mr. Fong failed to document his explanations -- just as he failed to document his back-related absences -- and not that the explanations were inherently suspicious.
In sum, the Court concludes that defendant was not required to provide Mr. Fong with the protections that must be given to known alcoholics under courts' interpretation of the Rehabilitation Act, in large part because it was not presented with enough "signs" that it "should have known" that Mr. Fong was suffering from alcoholism that caused work deficiencies. Finally, it is repeated that the claim concerning alcoholism is not the issue that is dispositive of this case, because the Court concludes that the firing of Mr. Fong was justified for reasons wholly unrelated to the issue of alcoholism-related absences.
IV. Procedural Disputes
Finally, plaintiff alleges a number of procedural errors by the MSPB, including a denial of a motion to compel discovery, a denial of motions for subpoenas, and a denial of a motion for sanctions. Considering both the deference that must be given to the MSPB on such matters and the substance of the allegations, the Court finds that plaintiff's claims are without merit.
The most important dispute is over the MSPB's refusal to impose sanctions on the Treasury Department for allegedly falsely answering interrogatories. Plaintiff filed interrogatories to defendant asking whether his supervisors discussed the possibility of Mr. Fong having a drinking problem. The responses, which said that a drinking problem was not discussed, were signed by a Treasury official who did not actually contact certain supervisors before signing the responses. At the MSPB hearing it was revealed that the possibility of a drinking problem was mentioned by Mr. Fong's supervisors.
The MSPB denied the motion for sanctions, stating that the responses did not violate MSPB discovery rules nor represent to be anything other than statements made by the person signing the responses. Moreover, the MSPB found that the responses did not prejudice Mr. Fong's case. The Court agrees with the MSPB, adding that the issue of and evidence concerning Mr. Fong's alcoholism problem has been considered de novo by this Court.
In accordance with the opinion of this 31 day of January, 1989, it is
ORDERED that plaintiff Fong's motion for summary judgment is DENIED; it is further
ORDERED that defendant Department of the Treasury's motion for summary judgment is GRANTED.
Date January 31, 1989
In accordance with the Opinion and Order signed this day, judgment is entered in favor of defendants.
Date January 31, 1989
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