Rodgers v. Lehman, s. 88-2028

• Decision Date: 09 March 1989
• Docket Number: 88-2842 and 88-2848,Nos. 88-2028,s. 88-2028
• Citation: 869 F.2d 253
• Parties: 49 Fair Empl.Prac.Cas. 351, 49 Empl. Prac. Dec. P 38,795, 1 A.D. Cases 1441 John A. RODGERS, Plaintiff-Appellant, v. John F. LEHMAN, Jr., Secretary of the Department of the Navy; United States Department of the Navy, Defendants-Appellees. William A. BURCHELL, Plaintiff-Appellee, v. DEPARTMENT OF THE ARMY, Defendant-Appellant. William A. BURCHELL, Plaintiff-Appellant, v. DEPARTMENT OF THE ARMY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 253

869 F.2d 253

49 Fair Empl.Prac.Cas. 351,

49 Empl. Prac. Dec. P 38,795, 1 A.D. Cases 1441

John A. RODGERS, Plaintiff-Appellant, v. John F. LEHMAN, Jr., Secretary of the Department of the

Navy; United States Department of the Navy,

Defendants-Appellees.

William A. BURCHELL, Plaintiff-Appellee, v. DEPARTMENT OF THE ARMY, Defendant-Appellant.

William A. BURCHELL, Plaintiff-Appellant, v. DEPARTMENT OF THE ARMY, Defendant-Appellee.

Nos. 88-2028, 88-2842 and 88-2848.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 12, 1989.

Decided March 9, 1989.

David Payne Sutton, Sr., for John A. Rodgers.

Robert V. Zener (John R. Bolton, Asst. Atty. Gen., Anthony J. Steinmeyer, Civ. Div., U.S. Dept. of Justice, Washington, D.C., Henry E. Hudson, U.S. Atty., Alexandria, Va., on brief), for John F. Lehman, Jr.

Robert V. Zener (John R. Bolton, Asst. Atty. Gen., Anthony J. Steinmeyer, Civ. Div., U.S. Dept. of Justice, Washington, D.C., Vinton DeVane Lide, U.S. Atty., Columbia, S.C., on brief), for Department of Army.

William Thomas Lavender, Jr. (Davis & Lavender, Kenneth M. Mathews, Scott & Mathews, P.A., Columbia, S.C., on brief), for William A. Burchell.

Before WILKINS, Circuit Judge, BUTZNER, Senior Circuit Judge, and MOTZ, United States District Judge for the District of Maryland, sitting by designation.

MOTZ, District Judge.

These two appeals raise the question of the procedure which a government agency must follow in reasonably accommodating an employee's alcoholism under the Rehabilitation Act of 1973. In No. 88-2028 the District Court ruled in favor of the agency; in No. 88-2842 the District Court ruled in favor of the employee. 679 F.Supp. 1393. We find that both plaintiffs were improperly denied the opportunity to obtain inpatient treatment and that they should therefore be reinstated to the positions from which they were discharged.

I. No. 88-2028 ¹

No. 88-2028 was brought by John A. Rodgers against the Department of the Navy. After service as a naval officer, Rodgers served in a civilian capacity with the Department of the Navy from September 1964 until his removal for alcohol-related absences on July 20, 1984. In 1978 he took 404 hours of leave, and in the first ten months of 1979 he took 387 hours of leave. Official action to curtail this developing absenteeism problem was taken in October 1979, when Rodgers was placed on controlled leave. This action required him to obtain advance approval of all annual leave and to support all sick leave with a medical certification.

Rodgers' absenteeism problem continued through 1980 and 1981. On September 3, 1981, a revised letter of requirements was issued warning him that continued problems would result in absences being charged as AWOL and might lead to further disciplinary action. Rodgers was granted thirty days' leave without pay in November 1981 pursuant to a physician's suggestion that the rest might aid a "multiple gastrointestinal problem." No alcohol problem was mentioned.

Rodgers never drank on the job, nor did he ever report for work drunk. His alcoholism was characterized by binge drinking--excessive drinking followed by abstinence--and blackouts. The Navy was first informed that Rodgers' unsatisfactory job performance was alcohol-related in April 1982 when, after missing work from April 12 to April 16, Rodgers returned to work with a physician's statement that he was suffering from alcoholism. William Vacca, Rodgers' immediate supervisor, responded to this information by setting up an appointment for Rodgers to meet with Christine Comer, a Navy employee relations specialist. Comer discussed the situation with Rodgers and advised him that if he did not accept treatment, Vacca would be forced to take progressive disciplinary action against him. She also referred Rodgers to Larry Uman of the Pentagon Counselling Service. Uman recommended that Rodgers attend the Extended Counseling Program, but Rodgers refused.

Rodgers' absences from work continued in May and June of 1982. Vacca met with him on May 28 and told him that failure to follow leave procedures would result in AWOL and disciplinary action. By letter of June 3, Rodgers' leave procedures were further tightened. On June 30, 1982, he received an "unsatisfactory" job performance rating, which was upgraded to "marginal" upon appeal. Following further absences in August, Rodgers entered the Fairfax Hospital Detoxification Unit for nine days. Upon his return, he attended Alcoholics Anonymous meetings, and his work attendance record improved.

In January 1983, however, Rodgers stopped attending AA meetings and began missing work again due to alcohol abuse. On March 21, 1983, he received a letter of unacceptable performance. Vacca discussed Rodgers' performance with him, but he was unresponsive. He then missed several days of work, calling in one day saying he was "drunk as a skunk." During this time, he suffered a concussion in a fall at home. When he returned to work, he met with Vacca, Comer, and Uman, and they urged him to attend the Extended Counseling Program. Rodgers again refused.

On April 7, 1983, Rodgers met with Vacca, Uman, and Jack Suddeth, the counseling program director, in a meeting intended to force Rodgers to confront his alcohol problem. The evidence as to exactly what was said at these meetings was contested, but Rodgers acknowledges that he was told that if he did not control his problem, the consequences would include his losing "his job, his family, and losing his life." The District Court found that Rodgers refused to enroll in a treatment program, even after Vacca offered to adjust his work schedule to accommodate the program. Rodgers did agree to go to AA meetings. Following these meetings and the threat of disciplinary action, he worked for the next three months without any absences.

Alcohol-related absences resumed, however, in August and September. On October 6, 1983, Harry Zimmerman, Rodgers' secondlevel supervisor, informed Rodgers that his recent absences were unacceptable and that disciplinary action would follow if medical documentation was not provided. Rodgers' drinking continued, and he called to tell Zimmerman that "he was drinking heavily since Tuesday of this week and wasn't sure what he would do or when he would get back to work." When he returned on October 17, Zimmerman suggested reassignment to a less stressful position. Rodgers said his job was not the problem. Zimmerman also told Rodgers that he would be disciplined for his most recent AWOLs and that further absence would not be tolerated.

Rodgers began attending the Extended Counseling Program in October 1983. On November 2, he received notice of a proposed five-day suspension for his recent AWOLs. On November 10, he was officially suspended for four days. In January 1984, Rodgers successfully completed the treatment program, albeit with sporadic attendance. There is no indication that he drank between October 1983 and February 1984, and his work attendance was satisfactory during that period. He also attended AA meetings.

In late February or early March, 1984, Rodgers began drinking again, as he confessed to Comer, and he missed five days of work. On March 2, Rodgers called Uman to tell him about his relapse and absences from work. Uman encouraged him to continue at AA and to attend the follow-up phase of the Extended Counseling Program, ECP-II. He did not enter ECP-II. Rodgers received a notice of proposed suspension on March 12, and on March 26, he was suspended fourteen days for his absences. Throughout this entire time period, Rodgers continued to see his personal physician.

Rodgers missed work on May 23, 24, and 25, 1984, and upon returning to work on May 29, he told Vacca he had been drinking heavily. He was charged with three days' AWOL and was told by Vacca that his removal was being seriously considered. Vacca again discussed with Rodgers his need for professional help. The following day, Rodgers decided to enter Father Martin's Ashley Rehabilitation Center for a month of inpatient treatment. On June 1, Zimmerman granted him leave without pay to enter the program. Zimmerman told Rodgers that his removal was being considered on the basis of his recent AWOLs, that his decision to accept inpatient treatment probably would have little effect on the removal action, and that he should do what was best for himself.

Rodgers' removal was formally proposed on June 8, 1984. On June 29, Rodgers successfully completed his inpatient treatment. On July 5, 1984, Rodgers' counselor at the Ashley clinic, Karen Sugden, wrote in opposition to his removal, stating that he had "made a connection and identification with his disease," that he "has begun to deal with issues of life," and that his "prognosis is good." On July 20, 1984, Rodgers was formally removed, effective July 23, 1984, in a decision stating:

You state that you are undergoing treatment for the disease of alcoholism at this time. You have been offered assistance for your medical problems a number of times, but have failed to correct your unreliable and undependable conduct. After two suspensions from duty in a six month period, both imposed to correct your absence without leave, you were again absent without leave from your position. Therefore, I find the penalty of removal to be appropriate in light of all relevant factors in this case, both mitigating and aggravating.

Rodgers suffered a brief relapse in April 1985. Since that time, according to his uncontroverted testimony, he has led an alcohol-free, healthy life.

No. 88-2842

No. 88-2842 was brought by William Burchell against the Department of the Army. Burchell, who had been a boiler plant operator at Fort Jackson, South Carolina since 1972, was fired for poor job performance resulting from alcoholism on January 4, 1985.

Burchell was convicted for driving under the influence in early 1982. He was convicted of the same offense in December 1982 and again in June 1983. A...