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October 7, 1993

MARK A. HOGARTH, Plaintiff,
RICHARD THORNBURGH as United States Attorney General, FRANK C. CARLUCCI as United States Secretary of Defense and JOHN DOE as Head of White House Communications Agency, Defendants.


The opinion of the court was delivered by: FRANCIS



 The plaintiff in this action, Mark A. Hogarth, contends that he was terminated from his position as a clerk with the Federal Bureau of Investigation ("FBI") because of a mental handicap, in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq. The parties consented to try this case before me pursuant to 28 U.S.C. § 636(c), and this opinion constitutes my findings of fact and conclusions of law under Rule 52 of the Federal Rules of Civil Procedure.


 Mr. Hogarth joined the general clerical support staff of the FBI in 1981 as a copier-duplicator operator. (Tr. 58). *fn1" At that time his duties consisted exclusively of duplicating documents. (Tr. 58). Like all FBI employees, he had a top secret security clearance. (Tr. 59). In 1982, he was promoted to communications operator, GS-4. (Tr. 59). In this position he operated a telephone switchboard, maintained radio contact with FBI agents in the field, did computer searches, and transmitted and received facsimiles and teletypes. (Tr. 59). Within a year he was promoted to communications operator, GS-5, though his responsibilities remained essentially the same. (Tr. 59-60). From the time Mr. Hogarth began working for the FBI until 1987, his performance evaluations were consistently good, and he received two commendations. (Tr. 60; Pl. Exh. 65-70). While employed by the FBI, he earned his bachelor's degree from the State University of New York in social sciences in 1983. (Tr. 57).

 As a communications operator, Mr. Hogarth had access to classified documents that he was transmitting, receiving, and sometimes editing. (Tr. 125-26). Many of the communications were coded, but Mr. Hogarth himself was not a cryptographer and had no responsibility for creating, changing, or reading codes. (Tr. 126-27, 250-51). The subject matter of the communications included matters of national security such as counterintelligence, as well as sensitive criminal matters. (Tr. 112-13, 144).

 In February 1987, Mr. Hogarth decided to avail himself of a promotional opportunity to work as an Afrikaans translator in the New York office of the FBI. (Tr. 62). He began an intensive language training program in Rosslyn, Virginia, but soon encountered difficulties. He started to feel overwhelmed and upset in class and to exhibit abnormal behavior. (Tr. 62-63). He neglected his assignments, began drinking alcohol at night, and laughed inappropriately in class. (Tr. 62-63).

 The plaintiff also began to develop bizarre ideas. He came to believe that the Central Intelligence Agency ("CIA") would use him as an operative in South Africa. (Tr. 63, 82). Without advising anyone, Mr. Hogarth rented a car and drove toward Canada, planning to seek asylum. (Tr. 63). He soon turned back, however, and returned home to New York. (Tr. 63). On March 31, 1987, the plaintiff sent the FBI a false medical excuse that he himself had written. (Tr. 63, 82-83; Pl. Exh. 73). The note stated that Mr. Hogarth was suffering from a herniated disc and could only do sedentary work. Mr. Hogarth signed the name of a fictitious physician to the note. (Tr. 64; Pl. Exh. 73). He also resigned from the Afrikaans course, citing his purported health problem. (Tr. 83; Gov't Exh. B). On April 23, 1987, Mr. Hogarth submitted another falsified doctor's note which stated that he was permitted to resume work on a part-time basis. (Tr. 84; Gov't Exh. C).

 Mr. Hogarth did return to work at the FBI on April 27, but his mental state continued to deteriorate. (Tr. 64). He believed that he was a doctor and handed out blank doctor's notes which he had signed with the name of the non-existent physician. (Tr. 85-86). He became obsessed with paranormal phenomena and thought that the CIA had devices with which it could alter brain waves. (Tr. 64-65). He believed that he was receiving coded messages from the CIA over the radio. (Tr. 90). At one point he felt he had died and gone to hell. (Tr. 90). He feared that a nuclear holocaust was imminent, and he called the Strategic Air Command in Omaha to issue a warning. (Tr. 90-91). In May, Mr. Hogarth had homosexual relations with another FBI employee at the agency's offices. (Tr. 65-66, 89; Gov't Exh. H).

 On May 15, 1987, Mr. Hogarth was interviewed by two FBI agents concerning a number of allegations against him. He acknowledged engaging in sexual misconduct at the FBI office and creating the false doctor's note. (Tr. 66; Gov't Exh I). However, he denied suggestions that he had considered selling secrets to the Soviet Union, and there is no evidence that he ever revealed confidential information. (Tr. 66, 132; Gov't Exh. I).

 On June 6, 1967, Mr. Hogarth's father brought him to a psychiatrist, Dr. Lawrence C. Miller. (Tr. 18-19, 67). Dr. Miller, recognizing that the plaintiff was acutely mentally ill, recommended that he be hospitalized immediately, but Mr. Hogarth refused. (Tr. 19, 67). That night, however, the plaintiff was brought to the emergency room of Jacobi Hospital in the Bronx because of his disturbed behavior, and the next day he was transferred to St. Vincent's Medical Center on Staten Island where Dr. Miller was Director of Psychiatry. (Tr. 17, 19-20, 67).

 Dr. Miller immediately treated Mr. Hogarth with the antipsychotic drug Trilafon and discharged him from the hospital five days later. (Tr. 20-21). In the course of continuing to treat Mr. Hogarth, Dr. Miller diagnosed him as suffering from bipolar disorder, manic type, sometimes referred to as manic-depressive illness. (Tr. 22). In addition to prescribing Trilafon, Dr. Miller placed the plaintiff on a regimen of lithium carbonate. (Tr. 22).

 Throughout July 1987, Mr. Hogarth continued to display manifestations of mental illness. In two meetings with Agent Bostdorff he repeated allegations that his phone was tapped and that he was being watched, once suggesting that the FBI was engaging in surveillance from a "Roy's" ice cream truck. (Tr. 122-23; Gov't Exh. O, Q). At the second interview he presented Agent Bostdorff with two letters. Both were rambling, incoherent statements that Mr. Hogarth signed "Sergeant Pepper." (Tr. 68-69, 93; Pl. Exh 89, 90). According to Mr. Hogarth, he was not regularly taking his Trilafon at this time. (Tr. 68, 93).

 On July 29, the FBI sent Mr. Hogarth a letter advising him that it was considering dismissing him. The letter outlined three grounds for termination: the fraudulent claim of a back injury, sexual misconduct while on duty, and lack of candor in responding to questions about the sexual conduct. (Gov't Exh. R). The plaintiff then submitted a letter dated August 12, pleading not to be terminated. (Pl. Exh. 79). In this letter, Mr. Hogarth again admitted writing the false medical note and engaging in homosexual acts at the FBI offices, and he acknowledged withholding information about one FBI employee he knew to be homosexual in order to protect that individual's reputation, but he argued that these deviations had been caused by a mental illness that was now under control. (Tr. 257; Pl. Exh. 79). The FBI, however, rejected these contentions, and on September 23, 1987, it delivered to Mr. Hogarth a termination letter dated September 9. (Tr. 69-70; Gov't Exh. U). The plaintiff appealed his dismissal, but the Acting Director of the FBI upheld it in a letter dated March 17, 1988. (Gov't Exh. FF).

 After Mr. Hogarth's condition was controlled with medication in the late summer of 1987, he did have occasional feelings of elation or depression and one instance where he felt he was being followed. (Tr. 28-29, 73, 246-47; Gov't Exh. CC at 9, 15, 19). In November 1990, the plaintiff was in a training program at the State Insurance Fund and the stress of his responsibilities led to what doctor Miller characterized as a "minor activation" of the stabilized bipolar disorder. (Tr. 44-46, 73; Gov't Exh. X). Mr. Hogarth's symptoms included sleep disturbances, difficulty concentrating, and fatigue. (Gov't Exh. X). In response, Dr. Miller adjusted his lithium treatment. (Tr. 29).

 At trial, Dr. Miller testified that someone suffering from bipolar disorder experiences manic moods when he feels elated or grandiose, is charged with energy, requires little sleep, and becomes careless and reckless in judgment and behavior. (Tr. 21-22). It was Dr. Miller's opinion that the misconduct for which Mr. Hogarth was discharged from the FBI was attributable to his mental illness. (Tr. 23). Specifically, an act such as creating a false medical excuse would be consistent with the combination of overconfidence and recklessness that characterizes bipolar disorder. (Tr. 23-24).

 Dr. Miller also concluded that by September 1987 Mr. Hogarth was capable of resuming his duties at the FBI. (Tr. 26, 33-34). Because the plaintiff's medication would buffer him against loss of mood control, Dr. Miller believed that he could perform the responsibilities of a communications operator. (Tr. 26-27). Dr. Miller understood Mr. Hogarth's position to be one without significant stress, but he noted that other persons with bipolar disorder function successfully in more stressful positions such as that of a physician. (Tr. 27, 31, 38-40). Dr. Miller did acknowledge, however, that Mr. Hogarth had been unable to handle the stress of the training program at the State Insurance Fund. (Tr. 55-56). While Dr. Miller felt there would always be some danger of Mr. Hogarth experiencing a misperception of reality or grandiose delusions, there was no substantial likelihood of a destructive recurrence. (Tr. 48). In particular, it was Dr. Miller's opinion that the plaintiff posed no danger of releasing classified information. (Tr. 30-31, 54).

 Dr. Lawrence A. Siegel testified as a psychiatric expert on behalf of the Government. He agreed with Dr. Miller that it was likely that Mr. Hogarth's misconduct was caused by his mental illness. (Tr. 228-29). However, he was not so optimistic about the likelihood that the plaintiff could avoid a recurrence of his symptoms. Dr. Siegel noted that a good percentage of persons with bipolar disorder who are treated with lithium carbonate nevertheless suffer relapses. (Tr. 210). The likelihood of recurrence is greater among individuals like Mr. Hogarth who have suffered a psychotic episode, that is, a loss of contact with reality. (Tr. 210-12). And, once a person with bipolar disorder has had a psychotic episode, future recurrences are ...

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