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CALLICOTTE v. CARLUCCI

February 21, 1990

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


June L. Green, United States District Judge.


The opinion of the court was delivered by: GREEN

JUNE L. GREEN, UNITED STATES DISTRICT JUDGE

 This matter is before the Court on three motions: plaintiff's Motion for Records Expungement; plaintiff's Motion for Award of Attorney Fees and Costs; and defendant's Motion to Bifurcate the motion for attorney fees into separate proceedings on the issues of entitlement to and reasonableness of any award. Having considered the motions and the memoranda submitted in support of the parties' positions, and the entire record in this case, the Court concludes that the personnel records concerning plaintiff must be cleansed of references to misconduct and disciplinary actions brought on by plaintiff's substandard performance while disabled by alcoholism.

 The Court also finds that plaintiff is a prevailing party within the meaning of the attorney's fees provision of the Rehabilitation Act of 1973, 29 U.S.C. § 794a(b)(1982). However, because the record is not fully developed on the issue of the reasonableness of the proposed fee award, the entry of a judgment amount is withheld pending defendant's filing on this issue.

 I. Background

 Plaintiff Betty M. Callicotte, an employee at the Defense Mapping Agency, Department of Defense (the "Agency"), brought this suit to enjoin the Agency from discharging her for alleged misconduct caused solely by dual handicapping conditions, namely, alcoholism and severe depression. The facts underlying this dispute are set forth in Judge Barrington Parker's Memorandum Opinion Granting Preliminary Injunction, dated June 23, 1988. 698 F. Supp. 944. The facts as stated in that opinion form part of the reasons for the Court's decision on these remaining issues. The further history of this litigation, as set forth below, confirms the Court's conclusion that the defendant violated Section 501 of the Rehabilitation Act of 1973, as amended, by failing to make reasonable accommodation for the plaintiff's disability caused by alcoholism.

 The order granting preliminary injunction restrained defendant from removing plaintiff pending her completion of a six-week inpatient alcoholism treatment program and a comprehensive fitness-for-duty examination; required defendant to immediately perfect plaintiff's disability retirement if she was found unfit for duty; and preserved plaintiff's entitlement to all benefits under the Federal Personnel Manual pending her retirement or return to duty.

 Plaintiff successfully completed the inpatient treatment program on August 12, 1988. Unfortunately, plaintiff suffered a relapse shortly after her return to work, reporting drunk, late or not at all on several occasions. On September 19 and 22, plaintiff was too drunk to complete scheduled fitness-for-duty exams. On September 26-29, 1988, plaintiff was hospitalized at Arlington Hospital for detoxification. On October 28, 1988, plaintiff received a second proposed Notice of Removal. The charges underlying this second notice included plaintiff's incapacity for work due to her relapse as noted above. The asserted grounds also specifically included plaintiff's disciplinary record dating back to July 7, 1983, including transgressions indisputably caused by plaintiff's alcoholism. 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.

 II. Discussion

 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 ...


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