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WILBER v. BRADY

January 21, 1992

ROBERT D. WILBER, Plaintiff,
v.
NICHOLAS F. BRADY, Secretary of the Treasury, Defendant.



The opinion of the court was delivered by: JOHN H. PRATT

 Before the Court are cross-motions for summary judgment and the parties' oppositions to those motions.

 This case arose out of the tragic events of August 26, 1987. The undisputed facts show that at approximately 4:45 p.m. on that date, plaintiff, a Criminal Investigator (Special Agent) with the Bureau of Alcohol, Tobacco, and Firearms (the "ATF"), left work and drove to a bar in a government owned vehicle ("GOV"). *fn1" He was joined by several individuals, including his supervisor. At approximately 10:00 p.m., plaintiff was offered a ride home, but refused. Plaintiff left the bar, driving the GOV, at approximately 10:15 p.m. At approximately 11:17 p.m., while traveling in the wrong direction on an interstate highway, he collided with another vehicle. The collision resulted in the death of Kadee Wiechman, a 2-year-old girl who was a passenger in the other vehicle. *fn2" A sobriety test was administered to plaintiff by the Council Bluffs, Iowa Police Department. The plaintiff failed the test with a 0.207 blood alcohol content. Under Iowa law, a 0.10 blood alcohol content is considered to be the point of impairment for a motor vehicle operator.

 Following the accident, plaintiff was arrested and charged with operating a vehicle while intoxicated and traveling the wrong way on an interstate highway, misdemeanors under Iowa law. These charges were later amended to include a felony charge of vehicular homicide. Plaintiff eventually pled guilty to the charges of vehicular homicide and driving under the influence of alcohol, and was fined, given a suspended sentence, placed on probation, required to perform community service, and had his driver's license suspended.

  ATF's Office of Internal Affairs investigated plaintiff's conduct relating to the August 26, 1987 accident. It completed its investigation on September 30, 1987 and proposed suspending plaintiff indefinitely. Plaintiff, in a letter from his attorney to Floyd Truman, Special Agent in Charge Kansas City District, responded to the proposed suspension on November 5, 1987. Truman then issued to plaintiff a memorandum entitled "Proposed Removal" on January 8, 1988. ATF proposed to remove plaintiff from his position effective April 8, 1988 on charges of (1) misuse of a GOV; (2) conduct prejudicial to the government; *fn3" and (3) revocation of his driver's license. Plaintiff, in a letter from his attorney, presented his reply to Daniel Hartnett, Deputy Director Law Enforcement and the deciding official, on February 8, 1988. Plaintiff also presented an oral reply to Mr. Hartnett on February 10, 1988. On April 1, 1988, Mr. Hartnett issued plaintiff a memorandum entitled "Decision to Remove." The decision to remove was based on the three factors set out above.

 Plaintiff appealed the ATF's decision to remove him to the Merit Systems Protection Board ("MSPB"). An MSPB Administrative Judge ("AJ") mitigated ATF's removal decision to a 30-day suspension. Administrative Record ("AR") at 1429. ATF petitioned for review with the full Board of the AJ's initial decision. AR at 1448. The MSPB affirmed the agency action and sustained plaintiff's removal. Wilber v. Department of the Treasury, 42 M.S.P.R. 571 (1989). Plaintiff then petitioned for review of the final MSPB decision by the Equal Employment Opportunity Commission ("EEOC"). AR at 1504. On July 27, 1990, the EEOC issued its decision which affirmed the final MSPB decision. AR at 1509. Plaintiff then filed a complaint for judicial review with this Court.

 Plaintiff asserts that he is an alcoholic. *fn4" He seeks protection under the Rehabilitation Act of 1973 (the "Rehabilitation Act" or the "Act"), as amended, 29 U.S.C. §§ 791, et seq. Plaintiff claims that he meets the requirements of the Act (i.e., that he is an "otherwise qualified handicapped" individual as defined by § 794 of the Act and the governing EEOC regulations, 29 C.F.R. § 1613.701(b) *fn5" ), and that defendant was thus required to retain him with reasonable accommodation for his handicap rather than remove him. Defendant argues that plaintiff is not an otherwise qualified handicapped person and that plaintiff's misconduct disqualified plaintiff from being able to continue his employment as an ATF Special Agent.

 The MSPB's decision in Hougens v. United States Postal Service, 38 M.S.P.R. 135 (1988), is central to this case because defendant relies upon it in making his misconduct argument, and both the MSPB and EEOC relied upon it in sustaining the agency action. Wilber, 42 M.S.P.R. at 588 ("We find that appellant's misconduct in this case . . . is disqualifying, egregious misconduct as discussed in Hougens."); AR at 1518-19. Plaintiff argues that Hougens "is an incorrect and unsupported interpretation of the Rehabilitation Act." Plaintiff's Memorandum of Points and Authorities in Support of His Opposition to Defendant's Motion for Summary Judgment and Cross-Motion for Summary Judgment ("Plaintiff's Opposition") at 6. Whether or not Hougens is good law must therefore be determined at the outset.

 The petitioner in Hougens was a postal inspector who was proposed to be removed from his position based on charges of off-duty misconduct. The agency maintained that Hougens had recklessly endangered the lives of others by pointing his .25 caliber Beretta automatic pistol at a group of four unarmed men as he left a bar and firing in the direction of one of them who was running away. 38 M.S.P.R. at 139. The agency also charged Hougens with carrying the gun in violation of the agency's firearms policy and without a state or local firearms permit. Id. Because of Hougens' alcoholism, he was not removed, but rather accommodated by demoting him to a position where he would not have to carry a firearm. Id. On appeal of the demotion, an administrative judge found that Hougens was a qualified handicapped individual whose demotion did not constitute reasonable accommodation under the Rehabilitation Act. Id. The agency petitioned the MSPB for review.

 The MSPB overturned the administrative judge's decision. It concluded that

 there are certain acts of misconduct which, when committed by an employee who is an alcoholic or drug addict, take that employee outside the scope of the protecting legislation because misconduct renders that person not a "qualified" handicapped individual.

 Id. at 142. The MSPB referred to several federal court decisions in making this determination. We will now review these cases and other precedent to determine if this holding is supported. *fn6"

 One of the cases discussed in the Hougens opinion is from this jurisdiction and appears to be directly on point. In Richardson v. United States Postal Service, 613 F. Supp. 1213 (D.D.C. 1985) (Gesell, J.), a long-time employee of the postal service challenged his discharge claiming handicap discrimination. Plaintiff was suspended after being charged with assault with intent to kill. Id. at 1214. After several months of incarceration when he was diagnosed as having a deep depression with paranoid tendency and alcoholism, he pled guilty to an assault and weapon charge and was thereafter terminated. Id. After unsuccessfully pursuing his administrative remedies, he filed suit in this District Court claiming, inter alia, that his discharge violated the Rehabilitation Act.

 Judge Gesell held that plaintiff's discharge did not violate the Rehabilitation Act because he "was discharged for his criminal conduct, not because of alcoholism or poor, job performance due ...


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