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Judy LaVonne Crewe Appellant
vs.
United States Office of Personnel Management NACI Center for Personnel Investigations Boyers PA . Appellee
 
Case:
No. 86-5357
 
Location:
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
 
Date:
September 3 1987, Submitted
 
Attorneys:
Douglas Peine for Appellant.
Robert M. Small Assistant U.S. Counsel for Appellee.
 
Court:
McMillian, Justice, Henley, Senior Justice and Fagg, Justice.
 
Author:
The Hon. Justice Henley
 

Plaintiff Judy LaVonne Crewe appeals pro se and with appointed Counsel *fn1 from the district court's *fn2 judgment in favor of defendant United States Office of Personnel Management NACI Center for Personnel Investigations Boyers Pennsylvania and against Crewe on her employment discrimination action. *fn3 Crewe alleges that the government discriminatorily refused to hire her because of her handicap of alcoholism. The district court found that Crewe was handicapped as defined in the Rehabilitation Act of 1973 but that the government could not reasonably accommodate her handicap. We affirm.

Appellant is a well-educated woman with a Bachelor of Arts degree in mathematics. Since 1967 Crewe has pursued a career in the defense industry. From February 15 1981 through February 16 1982 Crewe was employed by the Naval Ship Weapons System Engineering Station (NSWSES) in Port Hueneme California. While employed at NSWSES Crewe had a serious drinking problem which interfered with her work. Crewe's supervisor became aware of her problem and the Employee Assistance Team Counseled her and encouraged her to seek treatment. Crewe resisted those efforts and her work continued to deteriorate. Crewe resigned from NSWSES after being asked to turn in her activity badge.

Crewe readily admits that she is an alcoholic. Her alcoholism is long standing (extending back for more than twenty years) and serious. Over the years Crewe has pleaded guilty to five alcohol-related driving offenses. At the time of trial her driver's license had been revoked. Crewe has undergone treatment for her alcoholism on numerous occasions -- always without success. Her attitude toward treatment can be characterized as uncooperative belligerent and litigious. Crewe's drinking continues unabated despite her protestations of desiring treatment and she has repeatedly been placed in detoxification centers on account of her alcohol abuse. *fn4

In 1983 Crewe applied for two positions with the federal government. After conducting an investigation into Crewe's background the Office of Personnel Management (OPM) made a determination that she was unsuitable for federal employment because of her alcohol-related problems. The OPM barred Crewe from applying for federal employment until September 30 1986. Crewe appealed the OPM's decision to the Merit Systems Protection Board (MSPB) alleging that she had been unlawfully discriminated against on the basis of her handicap alcoholism. The MSPB affirmed the OPM's decision without a hearing. Crewe then commenced this action in the district court.

The Rehabilitation Act of 1973 29 U.S.C. SEC.(s) 701-794 prohibits employment discrimination against handicapped persons by the federal government SEC. 791(b) federal contractors SEC. 793 and recipients of federal grants SEC. 794. At the outset there can be little doubt that alcoholism is a handicap for the purposes of the Act. The Counsel General of the United States has so concluded 43 Op. Att'y Gen. 12 (1977); the federal agency charged with implementing the Act (the Merit Systems Protection Board) has agreed Ruzek v. General Services Administration 7 M.S.P.B. 307 7 M.S.P.R. 437 (1981); Rison v. Department of the Navy 23 M.S.P.R. 118 (1984). *fn5 Commentators also agree Richards Handicap Discrimination in Employment: The Rehabilitation Act of 1973 39 Ark. L. Rev. 1 9-10 (1985); Comment Hidden Handicaps: Protection of Alcoholics Drug Addicts and the Mentally Ill Against Employment Discrimination Under the Rehabilitation Act of 1973 and The Wisconsin Fair Employment Act 1983 Wisc. L. Rev. 725 (1983); and the federal courts have concurred. Whitlock v. Donovan 598 F. Supp. 126 129 (D.D.C. 1984) aff'd without opinion 252 U.S App. D.C.403 790 F.2d 964 (1986).

The Act was subsequently amended to exclude from the definition of handicap "any individual who is an alcoholic . . . whose current use of alcohol . .prevents such individual from performing the duties of the job in question or whose employment by reason of such current alcohol . . . abuse would constitute a direct threat to property or the safety of others." 29 U.S.C. SEC.706(8)(B). This limitation by its terms applies only to SEC. (s) 793 and 794. Id. We find the appellee's position that the alcoholism exclusion extends to SEC. 791(b) to be untenable for several reasons.

First it would be perverse to any rule of statutory interpretation to extend a specific exclusion limited to two expressly named sections to a third unnamed section. Second appellee contends that SEC. 706(8)(B) merely codifies the existing definition of the term qualified individual with handicaps found in SEC.(s) 793 and 794. See 124 Cong. Rec. 30 324 (1978) ("The use of the word 'qualified' in sections [793] and [794] already serves this purpose") (statement of Senator Williams). Contrary to appellee's argument this is strong support that the exclusion was not intended to extend to SEC. 791(b) because SEC. 791(b) does not use the term "qualified." Finally SEC. 791(b) is intended to make the federal government a model employer of the handicapped. 29 C.F.R. SEC. 1613.703 (1987); see Cong. Rec. S15 591 (Sept. 20 1978) ("The legislative history of the section [791] illustrates that with respect to the employment of handicapped individuals Congress expected the Federal Government should be a leader") (statement of Senator Cranston) quoted in Prewitt v. United States Postal Service 662 F.2d 292 301-02 (5th Cir. Unit A 1981). As part of that goal an affirmative action plan is imposed upon the federal employer SEC. 791(b) which is not imposed on other employers. Southeastern Community College v. Davis 442 U.S. 397 407-12 60 L. Ed. 2d 980 99 S. Ct. 2361 (1979). Therefore the fact that the SEC. 706(8)(B) exclusion does not apply to SEC. 791(b) is logical because of the federal government's greater affirmative duty in the employment of the handicapped. We now turn to the government's decision not to employ Crewe despite SEC. 791(b).

Section 791(b) prohibits the federal government from denying an individual employment on the basis of that person's handicap when the person with or without reasonable accommodation, can perform the essential functions of the position in question . . . and who . . . meets the experience and/or education requirements . . . of the position. . . . 29 C.F.R. SEC. 1613.702(f) (1987); see 29 C.F.R. SEC. 1613.703. The district court found that Crewe possessed the educational requirements of the two positions for which she was considered. The OPM however may reject any applicant in order to "promote the efficiency of the service." 5 C.F.R. SEC. 731.201. It is this employment criterion applicable to most federal jobs which formed the basis of the OPM's decision not to pursue Crewe's application for employment.

A variety of specific factors may be considered in determining whether an applicant will promote the efficiency of the service. 5 C.F.R. SEC. 731.202(b) (1987). The OPM found three factors to be determinative of Crewe's application: (1) delinquency in prior employment SEC. 731.202(b)(1); (2) dishonest conduct SEC. 731.202(b)(2); and (3) habitual use of alcohol to excess Sec. 731.202(b)(5). There is no doubt that a factual basis exists for these findings. The OPM is also required to consider a variety of other factors:

(1) The kind of position for which the person is applying . . . including its sensitivity;

(2) The nature and seriousness of the conduct;

(3) The circumstances surrounding the conduct;

(4) The recency of the conduct;

(5) The age of the applicant . . . at the time of the conduct;

(6) Contributing social or environmental conditions;

(7) The absence or presence of rehabilitation or efforts toward rehabilitation.

5 C.F.R. SEC. 731.202(c). We eschew re cataloging the facts of this case as they apply to these factors. It is abundantly clear that they militate in favor of the OPM's decision that rejecting Crewe will promote the efficiency of the service. *fn6 Having determined that Crewe's handicap entered into the employment decision and that her handicap was relevant to a valid employment criterion the issue becomes whether the employer could reasonably accommodate Crewe's handicap. Gardner v. Morris 752 F.2d 1271 1279-80 (8th Cir. 1985).

Plaintiff bears the initial burden of proof to make a facial showing that reasonable accommodation is possible. Id. at 1280; Tread well v. Alexander 707 F.2d 473 478 (11th Cir. 1983). In determining whether to hire persons with a prior history of alcohol abuse the federal government has adopted the following policy:

In considering applicants for federal employment who have a history of alcoholism . . . the Office of Personnel Management will make its determination on the basis of whether or not the applicant is a good employment risk. In such cases the length of time since the last abuse of alcohol . . . is less important than the steps taken by the applicant to obtain treatment of his or her illness through medical care rehabilitation and similar actions.

Federal Personnel Manual System Alcohol and Drug Abuse Programs sub ch. S6-5 (Supp. 792-2 Feb. 29 1980); see 5 C.F.R. Sec. 731.202. Crewe's past rehabilitative efforts are relevant to the facial possibility of accommodation. *fn7 Crewe has suggested a variety of treatment modalities. The government has produced voluminous evidence that all of the past treatment efforts aimed at Crewe have without exception failed due to her refusal to cooperate. Past failures alone will not always negate the possibility of accommodation when countervailing evidence of possible success exists. From the present record however we are unable to glean even a scintilla of evidence that would suggest that Crewe's future efforts to control her drinking would be pursued or would succeed. The district court correctly found that Crewe did not make the required showing of possible accommodation.

 
Notes:

*fn1 We express our thanks for appointed Counsel's assistance in this matter.

*fn2 The Honorable Janice M. Symchych United States Magistrate District of Minnesota. This case was tried to the magistrate by consent of the parties. See 28 U.S.C. SEC. 636(c).

*fn3 The district court broadly construed Crewe's complaint to allege unlawful discrimination in violation of the Rehabilitation Act of 1973 29 U.S.C. SEC. 791; the Comprehensive Alcohol Abuse and Alcoholism Prevention Treatment and Rehabilitation Act Amendments of 1976 42 U.S.C. SEC. 290dd-1; the Civil Rights Act of 1871 42 U.S.C. SEC. 1983; and the equal protection clause of the fifth amendment to the Constitution. All but Crewe's claim based on the Rehabilitation Act of 1973 warrant no further discussion here and the district court's opinion denying those claims is affirmed. 8th Cir. R. 14.

*fn4 The following is a summary of Crewe's hospitalizations since her resignation from NSWSES:

1982 -- Fourteen hospitalizations for alcohol related problems including a court ordered commitment to a state hospital;

1983 -- Six hospitalizations in detoxification centers;

1984 -- Seven hospitalizations in detoxification centers;

1985 -- Seven hospitalizations including one commitment to a state hospital.

The record before us does not disclose Crewe's hospital record for years subsequent to 1985.

*fn5 The "'view of the agency charged with administering the statute is entitled to considerable deference.'" Young v. Community Nutrition Institute 476 U.S. 974 106 S. Ct. 2360 2365 90 L. Ed. 2d 959 (1986) (quoting Chemical Manufacturers Ass'n v. Natural Resources Defense Council 470 U.S. 116 125 84 L. Ed. 2d 90 105 S. Ct. 1102 (1985)).

*fn6 We express no opinion whether an active alcoholic's drinking could form the basis of an adverse employment decision when there is no effect on actual job performance. See 124 Cong. Rec. 30 324 (1978) ("Many 'active' alcoholics . .. hold jobs and perform them satisfactorily. . . . The Rehabilitation Act protects such persons . . . from being fired solely because of their alcoholism. . . .") (statement of Senator Hathaway). Here there is abundant evidence that Crewe's alcoholism seriously impacted her job performance.

*fn7 For example a blind person applies for a federal position requiring the reading of printed material. Although a variety of accommodations are theoretically possible (such as optical scanners or sighted readers) if the blind applicant has in the past consistently refused to utilize the accommodations he may have failed to carry his initial burden of showing possible accommodation.