Removal on the basis of these earlier transgressions, by virtue of the first Notice of Removal dated November 13, 1987, had already been enjoined by Judge Parker.
On November 7, 1988, plaintiff filed a Motion for Contempt, claiming that the second attempted removal violated the preliminary injunction. Plaintiff requested equitable relief including rescission of the Proposed Removal dated October 28, 1988; an order to the Agency to base plaintiff's retirement upon the medical findings only; and an order to the Agency to retain plaintiff in full pay and benefit status until her disability retirement benefits became available. Supplemental filings on the question of equitable relief, submitted pursuant to Judge Barrington Parker's request, further requested that the Agency expunge from its files any and all allegations relating to "misconduct" resulting solely from plaintiff's handicapping condition; that in the event plaintiff's disability retirement application was denied, that the Agency retain plaintiff on active duty pending appeal of the denial; and that plaintiff be awarded attorney fees and costs.
After a hearing on the motion for contempt and for further equitable relief, Judge Parker issued an order on December 12, 1988. The order denied the motion for contempt but granted the request for equitable relief for the Agency to retain plaintiff in an active duty status and to expedite a decision on her application for disability retirement. A further status conference was held on January 10, 1989, at which time the Court ordered further briefing on the issues of records expungement and attorney's fees. Having carefully considered the pleadings and the entire record, this Court will render its decision on these remaining issues.
1. Expungement of Records
The law is clear that the expungement of government records, including administrative records, may be an appropriate equitable remedy used to vindicate rights secured by the Constitution or by statute. Chastain v. Kelley, 167 U.S. App. D.C. 11, 510 F.2d 1232, 1236 (D.C. Cir. 1975) (citations omitted). The court in Chastain articulated a standard under which an employee has the right not to be adversely affected in the future by information in the government's files. The right may exist if the information is (1) inaccurate, (2) acquired by fatally flawed procedures, or (3) is prejudicial without serving any proper purpose of the government. Id. The Court finds that under these tests, plaintiff is entitled to expungement of all references to misconduct and to disciplinary actions incurred because of her substandard performance while disabled by alcoholism.
The plaintiff fails to make a case on the first ground articulated in Chastain. Although the record of charges may be prejudicial and/or misleading, in all fairness, it cannot be said that the record is inaccurate. Plaintiff has not contested that the incidents did occur. It is the Court's conclusion, however, that plaintiff has the right to expungement on both the second and the third grounds set forth in Chastain.
The Court finds that the record of adverse actions in plaintiff's personnel file was compiled in violation of § 501 of the Rehabilitation Act of 1973, as amended. The Rehabilitation Act requires employers to make reasonable accommodation for handicapped employees, which the Agency failed to do in Ms. Callicotte's case. It is inconsistent with the legislative perception of alcoholism as a disease to allow the use of pre-treatment records, conceded to be attributable to alcohol abuse, for disciplinary purposes. See Walker v. Weinberger, 600 F. Supp. 757, 762 (D.D.C. 1985) (ordering pre-treatment violations excluded from compilation of subsequent disciplinary record).
Furthermore, prior to the Court's intervention, the Agency failed to take sufficient steps to accommodate plaintiff's disability. The Court, following the standard articulated by Judge Gesell in Whitlock v. Donovan, 598 F. Supp. 126 (D.D.C. 1984), aff'd mem. sub nom., 790 F.2d 964 (D.C.Cir. 1986), granted a preliminary injunction against the first proposed removal, finding that the Agency:
Made no significant efforts to accommodate plaintiff's disease nor offered her a chance to take leave without pay as required under the personnel rules. Indeed, its efforts fell far short of those held as inadequate in Whitlock. . . .