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March 22, 1989

CAROL A. McELRATH, Plaintiff,
JACK KEMP, Secretary, Dept. of Housing and Urban Development, Defendant

Stanley Sporkin, United States District Judge.

The opinion of the court was delivered by: SPORKIN


 I have heard two days of testimony and argument on plaintiff's motion for preliminary injunction. Based on the testimony and evidence offered, as well as the entire record in this case, I am now prepared to render my decision.


 Plaintiff, Carol McElrath, is an alcoholic. Ultimately, Ms. McElrath's alcoholism led to her dismissal by her employer, the Department of Housing and Urban Development ("HUD"). At the time of her dismissal, Ms. McElrath had served for 23 years as a civil servant. Most recently, and at all times relevant to this case, Ms. McElrath was employed in HUD's Office of Finance and Accounting.

 Ms. McElrath's alcoholism first resulted in disciplinary action, in the form of an Official Reprimand, in September of 1985. The reprimand letter issued against plaintiff indicated that she was intoxicated while on the job; several instances of absence without leave were noted. The letter of reprimand also informed Ms. McElrath that an appointment with HUD's Employee Counseling and Occupational Health program had been arranged. At that time, Ms. McElrath voluntarily entered into a program to treat her for alcoholism.

 In January of 1986, Ms. McElrath requested and received 120 hours of sick leave so that she could participate in a residential alcoholism treatment program at Karrick Hall. Despite her participation in the Karrick Hall program, Ms. McElrath suffered a relapse. This relapse occasioned instances where Ms. McElrath reported for work while intoxicated and instances where she simply failed to report for work.

 On April 26, 1986, Kathleen Trygstad, chief of plaintiff's branch, issued a Notice of Proposed Removal. In an undated memorandum received by Ms. McElrath on June 6, 1986, Albert Miller, Deputy Director of the Office of Finance and Accounting, notified plaintiff of her removal, effective June 20, 1986. However, on June 20, Mr. Miller issued an addendum to his decision. That addendum stated that Mr. Miller had decided to hold plaintiff's removal in abeyance for nine months. Mr. Miller testified that this reprieve was granted due to the intervention of Ms. McElrath's Union Representative and her Counselor. According to Mr. Miller, both had indicated that Ms. McElrath's condition was treatable and that Ms. McElrath was willing to undergo treatment. Thus, Ms. McElrath was granted leave-without-pay so she could pursue treatment, and the decision to remove her was held in abeyance until March 20, 1987.

 From June 24 to July 23, 1986, Ms. McElrath participated in the Father Martin Ashley Center's rehabilitation program.

 It appears that sometime before September of 1987, Ms. McElrath suffered a relapse. Again, instances of being AWOL and intoxicated on the job were reported. As a result, Ms. McElrath was suspended for five days beginning September 28, 1987.

 Apparently, Ms. McElrath's condition did not improve. Ultimately, on September 1, 1988, the chief of Ms. McElrath's branch proposed her removal. On October 28, defendant decided to remove Ms. McElrath from her position, effective November 4.

 Between the date plaintiff's removal was proposed and the date of her removal, Ms. McElrath, by her own efforts, enrolled in HUD's Employee Assistance Program for treatment of her alcoholism.

 On November 4, 1988, Ms. McElrath was removed from her position. On that very day, she filed a complaint and motion for a temporary restraining order in this Court. Ms. McElrath brought that action as a pro se plaintiff and sought to enjoin her removal.

 On March 14, 1989, Ms. McElrath, again of her own volition, was admitted into the Montgomery County Quarterway House, a 21-day residential addiction program. Presently, she is participating in the in-patient treatment program at the Quarterway House.


 As a preliminary matter, defendant asserts that this Court does not have jurisdiction to hear plaintiff's case. Defendant bases this position on the fact that Ms. McElrath failed to file a timely appeal of her dismissal. Defendant notes that relevant provisions of the Rehabilitation Act, under which this action is brought, require that an EEO Counselor be contacted within 30 days of the alleged discriminatory event. The Complainant then must file an administrative complaint if counselling is not successful. Finally, after 180 days from the time the administrative complaint has been filed, an action in district court may be brought.

 Ms. McElrath failed to properly follow these procedures. Thus, defendant urges this Court to dismiss Ms. McElrath's action.

 In addition to the government's recitation of the precise timing requirements of a Rehabilitation Act claim, there are other relevant facts that must be taken into account in this case. It is conceded by all parties that when plaintiff was removed from her job, she was in the throes of an alcoholism relapse. Further, plaintiff not only faced the prospect of losing her job, she faced the prospect of becoming homeless.

 Under these circumstances, plaintiff did not follow the exact procedures and notify the EEO Counselor of her complaint. Clearly, plaintiff, a Grade-5 clerk suffering from chronic alcoholism and suddenly without a job, was too confused and insufficiently versed in the procedural niceties ...

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