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January 31, 1989


The opinion of the court was delivered by: REVERCOMB


 Plaintiff Joseph Lee Fong brought this suit to challenge the firing of him as an employee by defendant Department of the Treasury. He seeks review, under the Civil Service Reform Act, 5 U.S.C. § 7703, of the decision of the Merit Systems Protection Board upholding his firing. He also pursues de novo a claim of discrimination against him because of his alcoholism, in violation of the Rehabilitation Act, 29 U.S.C. §§ 791-794, as construed by the courts. Both sides have moved for summary judgment; oral argument was heard on November 14, 1988. In this Opinion and Order, the Court denies summary judgment on behalf of plaintiff and grants summary judgment on behalf of defendant.

 I. Undisputed Facts

 Mr. Fong was employed in 1985 as a Securities Transaction Analyst at the grade of GS-9 for defendant Department of the Treasury. He had worked at the Department since 1978. After Mr. Fong used between October 1, 1984, and March 31, 1985 a total of 443 hours of leave -- some annual leave, some sick leave, some leave without pay, and some absences without leave (AWOL) -- a supervisor on April 1, 1985 placed "leave restrictions" on Mr. Fong that required that he seek advance approval for all annual leave, schedule and document in advance if possible all leave taken for medical reasons, and document expeditiously all reasons for unscheduled leave. On June 24, 1985, a supervisor required by formal letter that Mr. Fong provide medical documentation by July 1, 1985, for the illness that he had said was responsible for a number of his previous absences. This request was made in accordance with law. 5 C.F.R. Part 339. The documentation was to include the history of the condition, clinical findings including laboratory tests, an assessment of current and future plans for treatment, diagnosis, an estimated date of recovery, an explanation of the impact of the condition on Mr. Fong's job, and other detailed medical information.

 Although he did receive extensions of this deadline until July 27, 1985, Mr. Fong did not provide the documentation to his supervisor that summer. During July, 1985, Mr. Fong stated and a supervisor confirmed that much of the problem in securing the documentation was attributable to Mr. Fong's doctor. On July 9, 1985, the supervisor spoke to the doctor about the necessity of the doctor's providing Mr. Fong with the necessary documentation. The supervisor stated that the doctor was unhelpful and said that the matter was something between Mr. Fong and his lawyer.

On a medical basis I can not predict sudden incapacitations here. The same goes for duty restrictions. Also as to being injured while working on the job. If guide lines are followed it should not happen but who can say.

 Mr. Fong's supervisor concluded that the letter was not responsive to the request of June 24, 1985, and that Mr. Fong was charged with being absent without leave (AWOL) during late September. On October 28, 1985, a supervisor proposed that Mr. Fong be fired because of (1) failure to provide the requested medical documentation within the required time, (2) failure to follow the leave restrictions imposed on April 1, resulting in 36 hours of AWOL between June and mid-September, 1985, and (3) failure to provide administratively acceptable medical documentation as requested on June 24, resulting in 88 hours of AWOL for the time Mr. Fong was absent in August and late September. Mr. Fong was fired, effective December 6, 1985.

 Mr. Fong challenged the decision to fire him before the Merit Systems Protection Board (MSPB). The MSPB affirmed the agency's action, including finding no merit to plaintiff's claim of handicap discrimination. Fong v. Department of the Treasury, No. DC07528610109 (M.S.P.B. March 26, 1986).

 Mr. Fong appealed the decision of the MSPB in this action, filing a complaint on August 20, 1986. After defendant filed a motion for summary judgment in 1988, Mr. Fong in his opposition revealed publicly for the first time that he suffered from alcoholism and that some of his absences were to due to his alcoholism. He provided medical documentation for the claim that he was suffering from Post-Traumatic Stress Disorder (PTSD) as a result of his experiences as a combat soldier in Vietnam. Mr. Fong received a Purple Heart for his fighting in Vietnam, but also returned home with a recurrent back problem from parachute jumps and PTSD accompanied by secondary alcoholism.

 In his opposition to defendant's motion for summary judgment, Mr. Fong claimed that his employer knew or should have known of the alcohol problem, but failed to give him the protections that federal government employers must provide to alcoholics.

 II. Review of the MSPB

 When reviewing on the record a decision of the MSPB, a court must uphold the decision unless it is shown to be arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, in violation of legal procedures, or unsupported by substantial evidence. 5 U.S.C. § 7703(c).

 The MSPB concluded that Mr. Fong's employer proved by a preponderance of the evidence that its removal of Mr. Fong for misconduct was justified. The key element of the decision to fire and of the MSPB's approval of that decision was the failure of Mr. Fong to provide the required medical documentation for his past and future absences attributable to ...

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