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12/20/88 Frederick D. Judd, v. James H. Billington

December 20, 1988

FREDERICK D. JUDD, APPELLANT

v.

JAMES H. BILLINGTON, LIBRARIAN OF CONGRESS 1988.CDC.466 DATE DECIDED: DECEMBER 20, 1988



Mikva, Buckley, and D. H. Ginsburg, Circuit Judges.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Appeal from the United States District Court for the District of Columbia.

APPELLATE PANEL:

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MIKVA

Frederick D. Judd ("appellant") protests his discharge from the Library of Congress on the grounds that the Library violated the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 791 et seq. (1982 & Supp. 1988), section 201 of the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 ("Alcohol Act"), 42 U.S.C. § 290dd-1 (Supp. 1988), and certain Office of Personnel Management and Library of Congress regulations when it fired him. The district court granted summary judgment for the Library of Congress, and Judd appeals. We affirm on the ground that Judd failed to state a claim on which relief can be granted. See Fed.R.Civ.P.12(b)(6). I. BACKGROUND

Frederick Judd was a long-time employee of the Library of Congress who was warned, disciplined and eventually discharged for habitually disappearing from work for hours at a time without leave. Judd claims that he was and is an alcoholic and that his supervisors knew that he abused alcohol and that alcoholism was the reason for his absences. Judd, by his own account, generally came to work sober, worked half a day, left for lunch and frequently did not return. Judd claims that he failed to return because he was drinking. On a few occasions, he returned to work under the influence. Judd's supervisors did not confront him with the possibility that he might be an alcoholic nor did Judd raise the issue with them. The Library of Congress maintained a Health Services Office which provides evaluation and counseling to employees with alcohol problems and, when necessary, refers them to outside facilities. Judd's supervisors repeatedly referred Judd to Health Services and encouraged him to seek its assistance if a health problem was a cause of his misconduct. They also provided Health Services with a copy of a written memorandum to Judd, and the Health Services alcoholism and drug abuse counselor made several attempts to contact Judd to discuss counseling.

Judd protested his discharge through the Library of Congress' review procedures but an arbitrator upheld the Library's decision. Judd then sought judicial review. The court below granted summary judgment for the Library of Congress on the grounds that: (1) Judd had not exhausted his administrative remedies because he had not filed an Equal Employment Opportunity complaint; and (2) he had failed to make a sufficient showing that the Library knew or had reason to know that he was an alcoholic to create a genuine issue of material fact. We do not reach these questions because we find that Judd's claims are insufficient as a matter of law. II. ARGUMENT

A. Rehabilitation Act

The Rehabilitation Act, as originally enacted, did not apply to Library of Congress employees. The two sections germane to federal employment were limited in scope to the executive branch. See 29 U.S.C. § 791(b) ("Each department, agency, and instrumentality (including the United States Postal Service and the Postal Rate Commission) in the executive branch"); 29 U.S.C. § 794 ("any program or activity conducted by any Executive agency or by the United States Post Office"). The Library of Congress, as part of the legislative branch, was not included. See 2 U.S.C. § 171(1).

Appellant contends that a 1978 amendment expanded the scope of the Rehabilitation Act to include employees of the Library of Congress. The amendment in question extends a private right of action to employees who have complained under section 791 of the Rehabilitation Act and are aggrieved by the outcome. See 29 U.S.C. § 794a. Rather than construct a new remedial scheme tailored to the Rehabilitation Act, Congress incorporated the comprehensive scheme provided in Title VII of the Civil Rights Act of 1964 by making the "remedies, procedures, and rights set forth in . . . 42 U.S.C. § 2000e-16" available to employees unhappy with the disposition of their Rehabilitation Act complaints. See 29 U.S.C. 794a. Appellant argues that, since the incorporated section expressly includes employees of the Library of Congress, see 42 U.S.C. 2000e-16(a), the amendment created a right of action under the Rehabilitation Act for employees of the Library of Congress as one of the rights set forth in Title VII that was incorporated into the Rehabilitation Act.

The patent flaw in this reasoning is that it helps itself to only part of the provision in question. The rights that Congress incorporated are available only with respect to a complaint under section 791. Appellant has no complaint under section 791 as that section applies only to employees in the executive branch. See 29 U.S.C. § 791(b).

Appellant's reliance on Milbert v. Koop, 265 U.S. App. D.C. 206, 830 F.2d 354 (D.C. Cir. 1987), is misplaced. In that case, this court found that a member of the Commissioned Corps of the United States Public Health Service, a division of the Department of Health and Human Services, did have a right of action under the Rehabilitation Act. The issue was whether his position fell within the military exception that, some courts have held, limits Title VII's scope. Section 791 of the Rehabilitation Act does not itself grant aggrieved employees a right of action. If the plaintiff in Milbert was not entitled to a right of action under Title VII, then incorporation of Title VII could not have given him a right of action under the Rehabilitation Act. Nothing in that decision suggests that incorporation of Title VII rights expanded the Rehabilitation Act to cover new categories of employees. We find that the Rehabilitation Act provides no rights to appellant on which he can base a claim.

B. Alcohol Act

Nor can appellant ground a claim in section 201 of the Alcohol Act. The Alcohol Act, inter alia, directs the Secretary of Health and Human Services to foster programs in federal agencies to prevent and treat alcoholism among employees, See 42 U.S.C. § 290dd-1(a). Two provisions address agency conduct with respect to federal employees. One prohibits federal agencies from turning down an applicant for federal employment or firing a current employee for prior alcoholism unless the employment is in one of several designated sensitive areas. See 42 U.S.C. 290dd-1(b). The second explains that agencies are free to discharge alcoholic employees who are not performing their jobs Satisfactorily. See 42 ...


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