Little v. F.B.I., 92-2058

• Decision Date: 10 August 1993
• Docket Number: No. 92-2058,92-2058
• Citation: 1 F.3d 255
• Parties: 62 Empl. Prac. Dec. P 42,516, 62 USLW 2131, 2 A.D. Cases 1109, 2 ADD 654 Charles E. LITTLE, Jr., Plaintiff-Appellant, v. FEDERAL BUREAU OF INVESTIGATION; Joseph V. Corless; John Doe; William P. Barr, Attorney General of the United States, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 255

1 F.3d 255

62 Empl. Prac. Dec. P 42,516, 62 USLW

2131, 2 A.D. Cases 1109,

2 ADD 654

Charles E. LITTLE, Jr., Plaintiff-Appellant, v. FEDERAL BUREAU OF INVESTIGATION; Joseph V. Corless; John

Doe; William P. Barr, Attorney General of the

United States, Defendants-Appellees.

No. 92-2058.

United States Court of Appeals,

Fourth Circuit.

Argued May 5, 1993.

Decided Aug. 10, 1993.

John Edward Gagliano, Cohen, Gettings, Dunham & Harrison, Arlington, VA, argued (Brian P. Gettings, Frank W. Dunham, Jr., Cohen, Gettings, Dunham & Harrison, on the brief), for plaintiff-appellant.

Edward Terrell Swaine, Civ. Div., U.S. Dept. of Justice, Washington, D.C., argued (Stuart M. Gerson, Asst. Atty. Gen., Richard D. Bennett, U.S. Atty., Robert V. Zener, Civ. Div., U.S. Dept. of Justice, on the brief), for defendants-appellees.

Before HALL, Circuit Judge, SPROUSE, Senior Circuit Judge, and MICHAEL, United States District Judge for the Western District of Virginia, sitting by designation.

OPINION

MICHAEL, District Judge:

This case arose out of the termination of Charles E. Little, Jr. from his employment as a special agent with the Federal Bureau of Investigation ("FBI"). In his complaint, ^* Little asserted claims under the Rehabilitation Act, the Privacy Act, and Bivens. The district court dismissed all of Little's claims pursuant to Fed.R.Civ.P. 12(b)(6), 793 F.Supp. 652 (D.Md.1992). On Little's appeal, we affirm.

I.

In reviewing a dismissal based on insufficiency of the complaint, we accept as true the allegations of the complaint and draw any permissible inferences therefrom in favor of the plaintiff, in this case Little.

Little was employed as a special agent with the FBI for more than seven years before his termination on January 14, 1991. He had been assigned to the Baltimore Division since 1986. Little was an alcoholic, perhaps during his entire tenure with the FBI. His superiors knew of his problems with alcohol, but his job performance evaluations were always at least "fully satisfactory" and never "unacceptable."

Prior to December 1989, Little was involved in three separate alcohol-related incidents. The third incident was a July 1988 off-duty drunk-driving episode, which resulted in a December 1988 conviction for driving while intoxicated. As part of his sentence for that conviction, Little was placed on 18 months probation. Following this incident, Little unsuccessfully attempted on his own to quit drinking.

On December 19, 1989, Little was involved in another off-duty drunk-driving incident for which he was again charged with driving while intoxicated. He reported this incident to his superiors, and, recognizing that he needed professional treatment for his alcoholism, he sought assistance from his supervisor.

At that time, the FBI had in place an Employee Assistance Program ("EAP") which was designed, inter alia, to assist employees who were suffering from various handicaps, including alcoholism. Under the EAP, the FBI had specially designated and trained counselors, who were on duty in the Baltimore field office and at the Washington, D.C. headquarters. In addition, the FBI had regulations regarding procedures to assist and manage alcoholic employees, which regulations were set out in the FBI's Manual of Administrative Operations and Procedures ("MAOP"). The MAOP's alcoholism program provided that "[a]n employee who has accepted treatment will be dismissed only when he/she has been granted sick leave, treatment has failed, and he/she is clearly not capable of meeting the demands of the job." MAOP Sec. 15-3.1. The MAOP further provided that, notwithstanding the provisions of the alcoholism program, "FBI policy continues to require that employees should never cause themselves to be mentally or physically unfit for duty." MAOP Sec. 15-3.3(2).

Little was not referred to an EAP counselor but was instead referred to a private physician, who directed Little to an outpatient alcohol treatment program. During treatment, Little was placed on limited duty status, but he was not apprised of the nature or terms of that status. He completed the outpatient program in March 1990, and he was reinstated to full duty on May 4, 1990.

Despite having completed a treatment program, Little relapsed into alcohol abuse, and on May 16, 1990, he was intoxicated while on duty, to an extent that he was escorted to his home by two of his fellow agents. Following that incident, Little entered and completed an inpatient alcohol treatment program. He has engaged in no further drinking since May 16, 1990.

Little was discharged from the inpatient program on June 4, 1990, and he returned to work the next day. Upon his return to work, he was interviewed by his superiors about the May 16, 1990 incident. After Little admitted to drinking on duty, he was asked to resign. When he refused to resign, he was told that he would be treated like a clerk, and he was in fact given exclusively clerical duties thereafter. In addition, his superiors informed the appropriate state court of his drinking, which would constitute a violation of his probation.

Little received a letter dated September 21, 1990 from Assistant FBI Director Kennedy, to the effect that serious consideration was being given to Little's termination from the FBI. Finally, on January 14, 1991, Little was terminated. A "Notification of Personnel Action" dated January 17, 1991, which gave Little formal notice of his removal as a special agent, stated that he was terminated because of his "inability to conform to the FBI's established standards that special agents must remain mentally and physically fit for duty at all times."

This lawsuit followed. In his complaint, Little asserted claims under the Rehabilitation Act, the Privacy Act, and Bivens. The FBI filed a "Motion for Judgment on the Pleadings and to Dismiss the Second Amended Complaint." The district court treated the motion as one made under Fed.R.Civ.P. 12(b)(6) and dismissed all of Little's claims. In dismissing the Rehabilitation Act claim, the district court primarily relied on the Fifth Circuit opinion in Butler v. Thornburgh, 900 F.2d 871 (5th Cir.), cert. denied, 498 U.S. 998, 111 S.Ct. 555, 112 L.Ed.2d 562 (1990), for the principle that "an F.B.I. Special Agent who is an alcoholic and who manifests such conduct on duty is not within the protection of the Rehabilitation Act, because he is not 'otherwise qualified.' " App. at 71.

II.

On appeal, Little raises only the issue of whether Count I of his complaint states a claim for the violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. Secs. 701-797b. Since the court below dismissed Count I of the complaint as a matter of law, review in this court is de novo.

At the heart of this appeal, the parties are sharply divided in their views of the reason for Little's termination. The appellant alleged in his complaint and now asserts on appeal that his employment with the FBI was terminated because of his alcoholism. The appellant argues that the district court erred by construing facts in favor of the FBI and against Little; by failing to undertake an "individualized inquiry" of the facts as mandated by School Board of Nassau County v. Arline, 480 U.S. 273, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987); by following Butler v. Thornburgh, supra; and by holding that Little was not entitled to reasonable accommodation as provided for in Rodgers v. Lehman, 869 F.2d 253 (4th Cir.1989). On the other hand, the appellee claims that Little was fired because he was intoxicated while on duty. In other words, the appellee maintains that Little was fired because of misconduct, not alcoholism. Indeed, in our view, the case turns on whether Little was terminated because of his alcoholism or because of his misconduct. Only if Little has alleged facts to support his claim that he was terminated because of his alcoholism has he stated a claim under the Rehabilitation Act.

Little brought his claim under both Sections 501 and 504 of the Rehabilitation Act, 29 U.S.C. Secs. 791 and 794. Section 501 imposes an affirmative duty on federal agencies toward handicapped applicants and employees. 29 U.S.C. Sec. 791(b). Section 504 provides that "[n]o otherwise qualified handicapped individual ... shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency...." 29 U.S.C. Sec. 794. Thus, to be entitled to the protection of the Rehabilitation Act, the handicapped person must be "otherwise qualified." 29 U.S.C. Sec. 794. It is settled that alcoholism is a handicapping condition within the meaning of the Act. Rodgers v. Lehman, 869 F.2d 253, 258 (4th Cir.1989).

The phrase "otherwise qualified" has been interpreted by the Supreme Court on several occasions. In Southeastern Community College v. Davis, 442 U.S. 397, 406, 99 S.Ct. 2361, 2367, 60 L.Ed.2d 980 (1979), the Supreme Court said that "[a]n otherwise qualified person is one who is able to meet all of a program's requirements in spite of his handicap." In a more recent case, the Supreme Court revisited the issue and stated that "[i]n the employment context, an otherwise qualified person is one who can perform 'the essential functions' of the job in question." Arline, 480 U.S. at 287 n. 17, 107 S.Ct. at 1131 n. 17. Moreover, even if a handicapped employee is not able to perform the essential functions of the job, "the court must also consider whether any 'reasonable accommodation' by the employer would enable the handicapped person to perform those functions." Id. at 287 n. 17, 107 S.Ct. at 1131 n. 17. Finally, the employer must make reasonable accommodation for a handicapped employee unless reasonable accommodation would impose "undue hardship" on the employer.

The application of the Rehabilitation Act, especially in the...