misperceptions of reality due to his mental illness. (Tr. 142-50).
Finally, Mr. Hogarth presented evidence that the FBI has provided substantial accommodations for its employees who have been disabled by alcoholism. One agent, for example, had four episodes of drunkeness, during which he passed out, suffered loss of memory, and on one occasion misplaced his weapon. (Tr. 159-61; Pl. Exh 13). Nevertheless, he was not discharged until after the fourth episode. (Tr. 161-62). Dr. Miller testified that persons suffering from alcoholism always run the risk of relapse and that alcoholics can be delusional and suffer memory lapses. (Tr. 28).
With respect to the specific instance cited, a former Assistant Director of the FBI testified that while the loss of a weapon was serious, it was too commonplace to justify termination. (Tr. 201-02). Further, this witness could not state whether any of the FBI employees treated for alcoholism had been delusional. (Tr. 196-97). Dr. Siegel testified that the symptoms of alcoholism are not parallel to those of bipolar disorder. (Tr. 243). While someone may experience psychosis and hallucinations as a result of brain damage in the end stages of alcoholism, such symptoms would be unlikely in someone who has not engaged in years of heavy drinking. (Tr. 243-44).
A. Statutory Framework
There is some ambiguity in this case regarding the applicable statutory scheme. In the complaint, Mr. Hogarth refers exclusively to remedies applicable to claims under section 501 of the Rehabilitation Act of 1973 (the "Act"), 29 U.S.C. § 791, which concerns employment of handicapped persons by federal governmental agencies. In the joint pretrial order, however, the parties characterized the plaintiff's claims as arising under section 504 of the Act, 29 U.S.C. § 794, which prohibits discrimination on the basis of handicap by programs or activities receiving federal financial assistance or conducted by a federal agency.
When it was originally enacted, section 501 did not provide for a private right of action. By contrast, the courts readily held that there was an implied private right of action under section 504. See Leary v. Crapsey, 566 F.2d 863, 865 (2d Cir. 1977). In amending the Act in 1978, however, Congress explicitly stated that the rights and remedies available under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., would apply to section 501. 29 U.S.C. § 794a(a)(1). At the same time, the procedures under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq., were to apply to claims under section 504. 29 U.S.C. § 794a(a)(2).
This statutory evolution created some confusion about the relationship between sections 501 and 504. Some courts have taken the position that section 501 provides the exclusive remedy for federal employees claiming discrimination on the basis of handicap. See Boyd v. United State Postal Service, 752 F.2d 410, 413 (9th Cir. 1985); McGuinness v. United States Postal Service, 744 F.2d 1318, 1321 (7th Cir. 1984); DiPompo v. West Point Military Academy, 708 F. Supp. 540, 544-46 (S.D.N.Y. 1989). Others have held that the two sections provide overlapping protections for handicapped federal employees. See Morgan v. United States Postal Service, 798 F.2d 1162, 1164-65 (8th Cir. 1986), cert. denied, 480 U.S. 948, 94 L. Ed. 2d 794, 107 S. Ct. 1608 (1987); de la Torres v. Bolger, 781 F.2d 1134, 1135-36 (5th Cir. 1986); Prewitt v. United States Postal Service, 662 F.2d 292, 304 (5th Cir. Unit A Nov. 1981).
This issue has not been addressed by the Second Circuit, and for purposes of this decision it need not be resolved. Section 501 incorporates the procedural requirements of Title VII, including administrative exhaustion obligations, which do not apply in section 504 cases. However, in this case the government has abandoned any defense based on the plaintiff's purported failure to file his administrative complaint of handicap discrimination in a timely fashion. (Tr. 2). And, although only section 501 places affirmative action obligations on the federal government, Mr. Hogarth has consistently litigated this action as a straightforward anti-discrimination claim cognizable under either section 501 or section 504. Finally, the substantive obligations placed upon an employer not to discriminate on the basis of handicap are the same, whether the claim is raised under section 501 or section 504. Indeed, the regulations promulgated to implement these respective sections are substantially the same. Compare 29 C.F.R. §§ 1613.701-1613.707 (section 501) with 45 C.F.R. §§ 84.1-84.14 (section 504). Accordingly, the determination in this action will rely on law that has developed under both sections.
The basic protections afforded to a handicapped person by section 504 are stated as follows:
No otherwise qualified handicapped individual in the United States . . . shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.
29 U.S.C. § 794. Thus, in order to establish a violation of section 504 in the context of employment discrimination, a plaintiff must prove (1) that he is a "handicapped person" under the Act, (2) that he is otherwise qualified for the position in question, (3) that he is being excluded from the position solely on the basis of his handicap, and (4) that the position is part of a program or activity receiving federal financial assistance or conducted by a federal agency. See Doe v. New York University, 666 F.2d 761, 774-75 (2d Cir. 1981).
In the instant case, there is no dispute that Mr. Hogarth is a handicapped person as defined by the Act. "The term 'handicapped individual' means . . . any person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment."
29 U.S.C. § 706(7)(B); see also 45 C.F.R. § 84.3(j); 29 C.F.R. § 1613.702(a). Even if there is controversy over whether Mr. Hogarth's bipolar disorder is currently disabling, there is agreement that he at least has a record of such an impairment.
Similarly, there is no question here that the fourth requirement is met: employment by the FBI is an activity conducted by an executive agency. There is a dispute, however, regarding the second and third prongs of the standard. The government contends first that Mr. Hogarth was terminated from employment with the FBI not for his handicap but for the specific acts of misconduct. Second, it argues that the plaintiff is not "otherwise qualified" for a position as communications operator with the FBI.
B. Basis for Termination
According to the government, the FBI dismissed Mr. Hogarth for submitting a fraudulent doctor's note, for engaging in sexual misconduct while at work, and for not being fully candid when interviewed about his actions. The government contends that because the FBI did not rely on the existence of Mr. Hogarth's handicap in discharging him, his termination cannot have violated the Act. This sharp distinction between a handicapping condition on one hand and specific behavior on the other is a view endorsed by a number of courts. See Lucero v. Hart, 915 F.2d 1367, 1372 (9th Cir. 1990); Wilber v. Brady, 780 F. Supp. 837, 840 (D.D.C. 1992); Richardson v. United States Postal Service, 613 F. Supp. 1213, 1215-16 (D.D.C. 1985); Guerriero v. Schultz, 557 F. Supp. 511, 513-14 (D.D.C. 1983).
However, it is a position that has been soundly rejected by the Second Circuit:
The handicap and its consequences are distinguished for purposes of § 504 only in assessing whether or not the firing was discriminatory. If the consequences of the handicap are such that the employee is not qualified for the position, then a firing because of that handicap is not discriminatory, even though the firing is "solely by reason of" the handicap.