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GALLAGHER v. CATTO

December 9, 1991

MICHAEL J. GALLAGHER, Plaintiff,
v.
HENRY E. CATTO, Defendant.


RICHEY


The opinion of the court was delivered by: CHARLES R. RICHEY

Plaintiff Michael J. Gallagher, formerly a GS-1084-12 Visual Information Specialist at the Defendant United States Information Agency ("USIA"), challenges his November 3, 1989 removal from the federal service, alleging that the Defendant failed to accommodate his handicapping condition of alcoholism as required by the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791 and 794(a), and the Civil Service Reform Act, 5 U.S.C. § 2302(b)(1)(D). *fn1" Plaintiff seeks reinstatement to the same or a comparable job, full back pay and other accrued benefits, as well as expungement of all records related to disciplinary actions taken as a result of his handicapping condition. Upon consideration of the proposed findings of fact and conclusions of law submitted by the parties, the arguments presented on November 13, 1991, the record herein, and the applicable law, the Court shall enter judgment on the merits for the Defendant. *fn2" This Opinion shall constitute the Court's findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52.

 I. BACKGROUND

 Plaintiff was employed by the Defendant USIA for 24 years, beginning his career as an entry-level typist and working his way through the ranks to become a Visual Information Specialist at the GS-12 level. By all accounts, Plaintiff's performance, when he was not under the influence of alcohol, was, at the very least, satisfactory.

 Although employees at the agency suspected the Plaintiff's drinking problem as early as 1974, Plaintiff's drinking did not interfere with his job performance at that time. See, e.g., Deposition of Sandra Greenberg at 17-21; Deposition of Ronald Fett at 12. No one contacted the personnel office or the agency's Advisory, Referral and Counseling Service ("ARCS"). Greenberg Dep., supra; Fett Dep., supra. However, to his credit, Plaintiff, on his own initiative, visited the USIA nurse to discuss his drinking problem sometime in the 1978-1979 period. The nurse referred Plaintiff to the State Department's medical section, where doctors discovered damage induced by alcoholism. Gallagher Dep. (Vol. I) at 49. Heeding the recommendation of the State Department physicians, Plaintiff visited Mr. Hal Marley, an alcoholism counselor, who encouraged Plaintiff to attend Alcoholics Anonymous ("AA"). Id. Plaintiff attended AA "off and on." Id. at 53-4, 58. Plaintiff began the debilitating pattern of drinking and detoxification programs at this time.

 Unfortunately, in late 1982, Plaintiff embarked on a series of drinking binges followed by detoxification programs. He was admitted for detoxification at Suburban Hospital three times during the late 1982-1984 period. Plaintiff was afforded sick leave for each of these programs. Id. at 71-77. In early January of 1985, Plaintiff entered another 28-day detoxification program at Arlington Hospital. Id. at 80. The agency again approved sick leave. Id. Plaintiff entered an aftercare program at Arlington Hospital and volunteered in the detoxification unit. Id. at 84-86. The ARCS counselors monitored Plaintiff's progress. Id. at 87. Plaintiff remained sober for approximately two years.

 Plaintiff began drinking again in 1986, culminating in another hospital admission for detoxification in April of 1987. Id. at 90. Plaintiff intensified his counseling sessions with Dr. Wilcox and continued attending AA. Id. at 91-92. Also at this time, Plaintiff received treatment for depression at Fairfax Hospital. Id. at 94. Plaintiff maintained sobriety for only a short interval, however, and was again admitted for detoxification in 1987, receiving approval for leave time from the agency. Id. at 98-99. In toto, the agency afforded Plaintiff a substantial amount of sick leave during the 1985-1987 time period. It is undisputed that the Plaintiff took four weeks and 1 day of sick leave in 1985; three weeks and one day of sick leave in 1986; and over two weeks of sick leave in 1987. See Exhibit 4, Defendant's Motion for Summary Judgment.

 In October of 1987, Mr. Fett recommended a short suspension for Plaintiff's sleeping on the job and three hours' unauthorized absence without leave. See Dep. of Patricia Hoxie Noble at 14. See also October 28, 1987 Memorandum from R. Fett to P. Hoxie, Exhibit 6, Defendant's Motion for Summary Judgment. When confronted by Mr. Fett, Plaintiff acknowledged that his drinking had interfered with his job performance. Consequently, on November 18, 1987, Ms. Hoxie *fn3" proposed a ten day suspension, giving Plaintiff ten days within which to respond. See Exhibit 7, Defendant's Motion for Summary Judgment.

 Plaintiff then met with the Director of Personnel at USIA, Mr. Harlan Rosaker, to explain his alcohol problem. Mr. Rosaker and Plaintiff agreed to hold the proposed suspension in abeyance, provided that Plaintiff participate in an intensive rehabilitation program for 10 months. Under this "firm choice" agreement, which was memorialized, *fn4" Plaintiff promised to maintain daily contact with his AA mentor, attend AA two times per week and meet with an ARCS counselor weekly. The firm choice agreement also subjected the Plaintiff's leave time, punctuality and work habits to closer scrutiny. Id.

 Although there is some dispute between the parties as to Plaintiff's compliance with the firm choice agreement, it is undisputed that Plaintiff made at least "one slip" during the period covered by the firm choice agreement. *fn5" See Dep. of Dr. James Wilcox at 46, at Exhibit 11 of Defendant's Motion for Summary Judgment. Despite this slip, Dr. Wilcox testified that Plaintiff was "very motivated" to successfully complete the firm choice agreement. Id. Plaintiff believes that he informed his supervisor of his brief relapse. Gallagher Dep. at 113-115.

 At the close of the 10-month firm choice agreement, Mr. Fett recommended that the proposed suspension be removed from Plaintiff's records. See Plaintiff's Exhibit 8, October 24, 1988 Memorandum from Mr. Fett to Ms. Hoxie. Mr. Fett concluded that Plaintiff "made substantial progress" and "is determined to overcome [his alcoholism]." Id. The agency removed the proposed suspension on the same day. See Plaintiff's Exhibit 9. The Plaintiff was advised, however, "the progress toward permanent rehabilitation which you have made during the past ten months must be sustained in the future if you are to avoid disciplinary action." Id.

 Plaintiff began binge drinking approximately two months after the firm choice agreement expired. Gallagher Dep. at 118-120. One of Plaintiff's co-workers drove him to Fairfax Hospital where Plaintiff underwent detoxification for one week. Id. at 124-25. Plaintiff's condition worsened in early 1989. Although Plaintiff disputes the Defendant's characterization of events, the record indicates that Plaintiff's alcohol consumption was interfering with his work. See Exhibit 16, Defendant's Motion for Summary Judgment, March 28, 1989 Memorandum from Ms. Greenberg to Ms. Twardowski (failure to follow instructions on dealing with Berlin office); Exhibit 17, Defendant's Motion for Summary Judgment, Affidavit of Mr. Canning (testifying to Plaintiff "lying on top of his desk in mid-afternoon . . . apparently ill and in no condition to work").

 On March 28, 1989, Plaintiff reported to work under the influence of alcohol. Co-workers transported Plaintiff to Arlington Hospital for detoxification and treatment for alcoholism. See Gallagher dep. at 126-132. After brief visits to the hospital, Plaintiff reentered Arlington hospital for another 28-day program. Agency personnel went to Arlington Hospital to meet with the Plaintiff. See Wilcox Dep. at 54-56. At this time, the agency personnel discussed the proposed treatment and aftercare program with Plaintiff's counselor at Arlington Hospital. See Exhibit 18, Defendant's Motion for Summary Judgment, April 21, 1989 Memorandum to the Files from Ms. Twardowski. The agency personnel then reminded Plaintiff that, under the terms of the continuing supervision implicit in his prior "Firm Choice Agreement," the agency was giving him one "last chance" to embark on a course which would allow him to maintain his sobriety. Id.6 Plaintiff acknowledges that, despite the fact that he was hospitalized at the time, he understood the proposal and agreed to its terms. See Gallagher Dep. (Vol. II) at 8-9.

 Upon completing the detoxification program, Plaintiff enrolled in the recommended aftercare program at Arlington Hospital. See Exhibit 43, Defendant's Motion for Summary Judgment. Because of a relapse, Plaintiff resumed drinking and did not attend the required sessions. Accordingly, Plaintiff was terminated from the aftercare program. See Gallagher dep. (Vol. II) at 13-15. See also Exhibit 43, Defendant's Motion for Summary Judgment. According to both Dr. Wilcox and the Plaintiff, this relapse was an especially traumatic event. See Wilcox Dep. at 57-58; Gallagher Dep. (Vol. II) at 2-15 (noting that Plaintiff had completely lost all ability to control himself). The agency's records indicate that the Plaintiff had taken 8 weeks of sick leave during this January-May 1989 period. See Exhibit 4, Defendant's Motion for Summary Judgment.

 Recognizing the severity of the Plaintiff's addiction, Dr. Wilcox referred Plaintiff to Dr. Wynne, a clinical psychologist specializing in the diagnosis and treatment of alcohol addiction. See Wilcox Dep. at 58. Dr. Wynne in turn referred Plaintiff to Dr. Voith, an internist with a specialty in dealing with alcoholic patients. See Deposition of Dr. Ronald D. Wynne at 32-39. Plaintiff entered a detoxification program at Sibley Hospital in July of 1989. All of the physicians agreed that Plaintiff needed intensive long-term treatment. See Wilcox Dep. at 58-60. According to Ms. Hoxie, the agency would have granted extended sick leave to the Plaintiff had he pursued long-term care. See Hoxie Dep. at 53-54.

 According to Mr. Michael Canning, one of Plaintiff's co-workers, Plaintiff arrived at work in an inebriated state on August 4, 1989. See Exhibit 23, Defendant's Motion for Summary Judgment. Plaintiff denied that he was inebriated at this time, claiming that he was experiencing difficulty due to illness and prescription drugs. Id. Dr. Wilcox, along with Ms. Twardowski and Mr. Canning, met with Plaintiff and advised him "that he should not report to work intoxicated, and that as far as we were concerned, that the alternative he had was to seek long-term medical treatment, or to be on AWOL." See Twardowski Dep. at 107, Exhibit DD to Defendant's Reply to Plaintiff's Opposition to Defendant's Motion for Summary Judgment. According to Mr. Canning, Dr. Wilcox "advised him to get long-term medical help for his condition and consulted with one hospital on the phone toward that end." Exhibit 23. However, Dr. Wilcox noted that he "was not acting on behalf of management in referring him to treatment programs . . . [it] was my way of thinking at that time that [Plaintiff] was already being processed out." Wilcox Dep. at 62-63, Exhibit C, Defendant's Opposition to Plaintiff's Motion for Summary Judgment. The agency asked the Plaintiff to provide documentation of "a prognosis, a diagnosis [and] a treatment plan." Twardowski Dep. at 129-130.

 In early August, Plaintiff was admitted to the detoxification unit at Montgomery Hospital. See Exhibit 28, Discharge Summary, Montgomery General Hospital, Defendant's Motion for Summary Judgment. Not surprisingly, this detoxification program did not alleviate Plaintiff's addiction, and he returned to Montgomery Hospital during August 8-13, 1989. Id. The staff at Montgomery Hospital advised Plaintiff to undertake a long-term placement in a residential protective setting, and investigated plans for long-term placement in a residential setting. See Gallagher Dep. (Vol. II) at 50. See also Exhibit 28 (also noting that Plaintiff "planned to enter an outpatient rehabilitation program upon discharge").

 During this turbulent August time period, the agency reassigned Plaintiff to the USIA's Exhibits Branch. Twardowski Dep. 109. According to the agency, this transfer would give the Plaintiff a fresh start, and would also satisfy many of Plaintiff's co-workers in the Visual Services Branch, who had lodged complaints about Plaintiff's disruptive behavior. Id. Plaintiff's detail at the Exhibits Branch was not successful. Allegations surfaced that Plaintiff committed a serious error in destroying classified documents without authorization. See August 7, 1989 Memorandum from Ms. Greenberg to Ms. Twardowski, Exhibit 24, Defendant's Motion for Summary Judgment. This incident resulted in the suspension of Plaintiff's security clearance on August 10, 1989. See Exhibit 26, Defendant's Motion for Summary Judgment. Moreover, Plaintiff's supervisor at the Exhibits Branch, Ms. Becker, detailed numerous deficiencies in the Plaintiff's work and claimed that she needed to hire an independent photo researcher to complete the assigned work. See Affidavit of Gail Becker, Exhibit 27, Defendant's Motion for Summary Judgment.

 Plaintiff arrived at work on August 30, 1989 intoxicated. See Exhibit 27 at 3. Plaintiff checked into the Psychiatric Institute of Washington on the next day. Id. Plaintiff returned to work on September 11, 1989, again intoxicated. Id. Ms. Becker sent Plaintiff home. Plaintiff refused a taxicab, and indicated that he would travel by bus. Id. On September 1, 1989, Mr. Fett proposed disciplinary action, including termination, due to Plaintiff's frequent AWOL periods and breach of the agreement made at Arlington Hospital in April. See Exhibit 29, Defendant's Motion for Summary Judgment. The agency adopted Mr. Fett's recommendation, and proposed termination. See September 15, 1989 Letter from Ms. Hoxie to Plaintiff, Exhibit 30, Defendant's Motion for Summary Judgment.

 Plaintiff called Ms. Twardowski on September 20, 1989, and informed her that he had "'escaped to Florida' because his wife was going to have him arrested." See Exhibit 33 to Defendant's Motion for Summary Judgment, September 20, 1989 Memorandum to the Files from Ms. Twardowski. Ms. Twardowski advised Plaintiff that he

 continued to be on AWOL, [and] that he had failed to provide any excuse for his absence and that consideration for approval of sick leave for long-term treatment would only be given if he ...


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