Wallace v. Veterans Admin.

• Decision Date: 14 April 1988
• Docket Number: No. 86-1617-K.,86-1617-K.
• Parties: Dorothy J. WALLACE, Plaintiff, v. VETERANS ADMINISTRATION; Veterans Administration Medical Center, Wichita, Kansas; Robert F. Pelka, Individually and as Director of the Veterans Administration Medical Center, Wichita, Kansas; Rozelle Knight, Individually and as Chief of Nursing Service at the Veterans Administration Medical Center, Wichita, Kansas; and Gregory McCullough, Individually and as Personnel Management Specialist for the Veterans Administration Medical Center, Wichita, Kansas, Defendants.
• Court: U.S. District Court — District of Kansas

683 F. Supp. 758

Dorothy J. WALLACE, Plaintiff, v. VETERANS ADMINISTRATION; Veterans Administration Medical Center, Wichita, Kansas; Robert F. Pelka, Individually and as Director of the Veterans Administration Medical Center, Wichita, Kansas; Rozelle Knight, Individually and as Chief of Nursing Service at the Veterans Administration Medical Center, Wichita, Kansas; and Gregory McCullough, Individually and as Personnel Management Specialist for the Veterans Administration Medical Center, Wichita, Kansas, Defendants.

No. 86-1617-K.

United States District Court, D. Kansas.

April 14, 1988.

Shannon S. Krysl, Wichita, Kan., for plaintiff.

Benjamin L. Burgess, Jr., U.S. Atty. and Stephen K. Lester, Asst. U.S. Atty., Wichita, Kan., for defendants.

MEMORANDUM AND ORDER

PATRICK F. KELLY, District Judge.

This matter is before the court on plaintiff's motion for summary judgment. In this action, plaintiff Dorothy Wallace, a recovering drug addict, contends that the Veterans Administration's ("V.A.") refusal to hire her as a nurse in the Intensive Care Unit ("ICU") of the V.A. Hospital was in violation of §§ 501, 504 and 505 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 791, 794, 794a(a)(1), which prohibit discrimination against handicapped individuals.

Plaintiff applied for a position with the V.A. as a registered nurse in the ICU in July of 1984. The plaintiff was not hired for the position. On September 25, 1984, she filed a formal complaint with the Equal Employment Opportunity Commission ("EEOC"), alleging discrimination on the basis of her physical handicap. Following investigation of the complaint by the V.A. and a proposed disposition finding no discrimination, plaintiff requested a hearing by the EEOC complaints examiner. A full evidentiary hearing was held on August 21-22, 1986. On March 31, 1987, the complaints examiner issued her proposed decision finding discrimination and recommending that plaintiff be hired by the V.A. as an RN, awarded back pay, benefits, and reasonable attorney fees. On May 12, 1987, the V.A. Office of General Counsel rejected the complaints examiner's recommended decision, finding it was not substantiated by the evidence. The V.A.'s rejection of the decision was the final action of the agency.

Plaintiff filed her complaint with this court on July 16, 1986, but asked the court to stay the proceedings pending the outcome of the administrative process. See 29 C.F.R. § 1613.281 (statutory right to file civil action). Following plaintiff's exhaustion of the administrative process,¹ the stay was lifted and plaintiff filed this motion for summary judgment. It is agreed by the parties that the court's review of the evidence is conducted de novo.

Having carefully read and reviewed the entire 997-page transcript of the EEOC hearing, and having heard full arguments on the motion for summary judgment, the court is now prepared to rule. For the reasons set forth herein, the court finds the V.A. discriminated against the plaintiff on the basis of her handicap in violation of the Rehabilitation Act. Therefore, the plaintiff's motion for summary judgment will be granted.

The facts in this case are undisputed. In July of 1984, Dorothy Wallace answered a newspaper advertisement and applied for a position as an RN in the Wichita, Kansas V.A. Hospital's Intensive Care Unit. At that time, Ms. Wallace was a fully trained and licensed registered nurse with extensive experience in intensive care units. The plaintiff had been employed in a variety of RN positions in various hospitals in Missouri, Kansas and Arkansas. There is no doubt that plaintiff was well qualified for a position in the ICU of the V.A. Hospital.

However, plaintiff was also an admitted recovering drug abuser. The plaintiff's testimony, as contained in the transcript of the EEOC hearing, is a fascinating personal account of the disease of drug addiction and its hellish consequences. It also offers insight into the determination, and human understanding, necessary to effect a successful recovery. The details need not be recounted here, however, as it is undisputed that at the time of plaintiff's application with the V.A. she had been free of drug abuse for over nine months, having entered a drug abuse rehabilitation program in August of 1983. Ms. Wallace was certified as free from drug abuse by both her treating physician and the rehabilitation center which she had attended. Plaintiff's treating physician submitted a letter of recommendation on her behalf to prospective employers. He recommended that she be restricted in access to controlled substances (i.e., injectable narcotics) for a 12-18 month period and that she be given random urine tests.

Along with attending daily AA or NA meetings, Dorothy Wallace voluntarily joined the Kansas State Nursing Association Impaired Nurse Peer Assistance Program in May, 1984. She signed a contract with Peer Assistance in which she promised to inform prospective employers of her impairment, and to be restricted for a period of time from administering narcotics.

Dorothy Wallace submitted her application to the V.A. on July 12, 1984. Although she requested any RN position, her first choice was in ICU, as per the want ad. She was interviewed the same day she applied. During her interview, Ms. Wallace disclosed she was a recovering drug addict. The interviewer, Nancy Barton, was favorably impressed with Ms. Wallace's background and experience and recommended that she be hired with certain restrictions.

However, Dorothy Wallace was not hired. The reason she was given was that due to her narcotic administration restriction, she could not perform the full range of duties as an RN in ICU. Moreover, she was informed that she could not be considered for any RN position at the V.A., but could be considered for a clerical position paying minimum wages.² As a result of the V.A.'s refusal to hire her due to her narcotic restriction, Ms. Wallace filed her complaint alleging discrimination.

Because the facts are not in controversy, summary judgment is appropriate. The court must determine whether the law affords plaintiff a remedy given the facts at hand.

In determining whether defendant's actions herein were in violation of the Rehabilitation Act, the court is mindful of the social purpose behind the legislation. Congress passed the Rehabilitation Act of 1973 in order to "promote and expand employment opportunities in the public and private sectors for handicapped individuals." 29 U.S.C. § 701(8). The Act is a sweeping attempt to combat all forms of discrimination against the handicapped. It not only created wide-ranging, federally-funded programs to enable handicapped persons to reach their full potential as active members of society, it established that the federal government, federal contractors and recipients of federal funds cannot discriminate against the handicapped. In passing this legislation, Congress sought to make this form of discrimination as reprehensible as discrimination based on sex, race, or ethnic background. See S. Rep. 890, 95th Cong., 2d Sess. 18-19 (1978), U.S.Code Cong. & Admin.News 1978, 7312, 7329-30.

The duties of the three classes of entities listed above are set forth in separate sections of the Act. Section 503, 29 U.S.C. § 793, requires federal contractors to "take affirmative action to employ and advance in employment qualified handicapped individuals...."

Section 504 of the Act, 29 U.S.C. § 794, as amended, prohibits the exclusion "solely by reason of their handicap" of "otherwise qualified individuals" from government agencies or recipients of federal funds.

The duties of the federal government itself are set forth in § 501(b), 29 U.S.C. § 791(b), as follows:

Each department, agency, and instrumentality ... in the executive branch shall ... submit to the Civil Service Commission ... an affirmative action program plan for the hiring, placement, and advancement of handicapped individuals in such department, agency, or instrumentality. Such plan shall include a description of the extent to which and methods whereby the special needs of handicapped employees are being met.

Thus, the Act recognizes that "the Federal Government must be an equal opportunity employer, and that this equal opportunity must apply to handicapped individuals." S. Rep. No. 318, 93rd Cong., 1st Sess. 49 (1973), U.S.Code Cong. & Admin.News 1973, pp. 2076, 2122. Unlike § 504 of the Rehabilitation Act which, like Title VII, requires only nondiscrimination, § 501 requires affirmative action on the part of federal agencies. The legislative history of § 501 illustrates that the federal government is to act as the "model employer" of the handicapped and "`take affirmative action to hire and promote the disabled.'" Prewitt v. United States Postal Service, 662 F.2d 292, 302 (5th Cir.1981) (quoting Rehabilitation of the Handicapped Program 1976: Hearings Before the Subcommittee on the Handicapped of the Committee on Labor and Public Welfare, 94th Cong., 2d Sess. at 1502 (1976)). See also 29 C.F.R. § 1613.703. In other words, § 501 requires that federal agencies do more than just submit affirmative action plans, they also must "structure their procedures and programs so as to ensure that handicapped individuals are afforded equal opportunity in both job assignment and promotion." Ryan v. Federal Deposit Insurance Corp., 565 F.2d 762, 763 (D.C.Cir. 1977).

In its 1978 amendments to the Rehabilitation Act, Congress created a private cause of action allowing individuals to obtain relief for handicap discrimination on the part of the federal government and its agencies. The new § 505 to the Act provides that "the remedies, procedures, and rights set forth in section 717 of the Civil Rights Act of 1964 ... shall be available with respect to any complaint under section 501." 29 U.S.C. § 794a(a)(1).

In this case, plaintiff asserts claims pursuant to both § 504 and § 501.

Section 504 provides coverage for...