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NISPEROS v. BUCK

September 12, 1989

MIKE A. NISPEROS, JR., Plaintiff,
v.
JAMES L. BUCK,1 in his capacity as Acting Commissioner of the Immigration and Naturalization Service, Defendant


William W. Schwarzer, United States District Judge.


The opinion of the court was delivered by: SCHWARZER

WILLIAM W. SCHWARZER, UNITED STATES DISTRICT JUDGE.

 Plaintiff Mike A. Nisperos, Jr. ("Nisperos") brings this action against James L. Buck, Acting Commissioner of the Immigration and Naturalization Service ("INS"), alleging that his employment as a general attorney with the INS was terminated in violation of section 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791 ("the Act") and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Nisperos has voluntarily dismissed his Title VII claim. (Pltf.'s Reply to Def.'s Opp. to O.S.C. ["Pltf.'s Rep."] at 3.)

 On May 12, 1989 the Court denied defendant's motion for partial summary judgment and entered an Order to Show Cause why summary judgment on the issue of liability on the Rehabilitation Act claim should not be granted to plaintiff.

 No material issues of fact remain in dispute as to liability and this case is therefore appropriate for decision by summary judgment. *fn2"

 I. Factual Background

 The following facts are not in dispute. Nisperos was hired on January 19, 1987 to serve as a general attorney in the San Francisco office of the District Counsel of the INS. (Nisperos July 31 dec. para. 2.) During his employment with the INS, Nisperos suffered from a drug problem. (Nisperos Feb. 17 dec. para. 4.) He received one formal performance evaluation which covered the period January 20 through June 30, 1987. He received an overall rating of "Fully Successful." (Le Fevre June 22 dec. para. 8.) Nisperos received "Fully Successful" ratings in the categories of "Knowledge," "Writing Skills," "Research Skills," "Litigation Support and Legal Assistance," and "Timeliness." He received "Excellent" ratings in "Advocacy Skills" and "Ability to Deal Effectively with Others," and received a "Minimally Satisfactory" rating in the category of "Productivity, Problem Solving Ability, Motivation" based on a below-average quantity of written work. (Pltf.'s Rep. Ex. B.)

 In August 1987, Nisperos had a meeting with his supervisor, Ronald Le Fevre, and told him that he wished to enter a detoxification program to get treatment for substance abuse. Le Fevre expressed concern that participation in such a program might conflict with Nisperos' planned attendance at training sessions for "employer sanctions" work for which Nisperos was being considered. (Nisperos Feb. 17 dec. para. 3; Le Fevre June dec. paras. 2-6.) Nisperos did not enter a rehabilitation program at that time. (Nisperos Feb. dec. para. 3.) This meeting was the first time Le Fevre suspected that Nisperos had an alcohol or drug problem. (Le Fevre Jan. dec. para. 4.) On September 25, Le Fevre suspected that Nisperos had a serious drug problem after Nisperos informed Le Fevre that the previous night, at home, he had fired a shot at an intruder, of whom no sign was found by police. (Le Fevre Jan. dec. para. 5.)

 By late September 1987, Nisperos realized that he needed to seek rehabilitative treatment immediately, and on September 26 applied for admission to the Martinez V.A. hospital. (Nisperos Feb. dec. para. 8.) He was told that there would be a two-week wait before he could be evaluated for admission. (Id.) On September 27, 1987 Nisperos was arrested at his home for being under the influence of cocaine and for possession of narcotic paraphernalia. (Id.; First Amend. Cmplt para. 9.)

 On September 30, Nisperos entered an in-patient rehabilitation program at Gladman Memorial Hospital, which he successfully completed on October 28. (Nisperos Feb. dec. para. 8.) Nisperos states that he has remained sober and drug-free since that time (Id.), and there have been no facts brought forward to dispute this. In May 1988, the criminal charges against him were dismissed following his successful completion of a diversion program during which he had been regularly tested for drugs. (Id. para. 9; Nisperos Feb. dec. Ex. B.)

 While an in-patient at Gladman hospital, Nisperos applied for sick leave. He did not receive sick leave, but was granted leave without pay. (Id. para. 8.) Sometime after his admission to Gladman, Nisperos telephoned Le Fevre and informed him of his arrest. (First Amend. Cmplt para. 9; Ans. para. 9.) On October 30, 1987, Nisperos was given a letter notifying him that he was being terminated by the INS. (Nisperos Feb. dec. para. 8.) Neither that letter nor a November 20 follow-up letter gave a reason for the termination. (Nisperos Feb. dec. Ex. A.) During the course of this litigation, the INS has stated that the reason for Nisperos' termination was his cocaine use and arrest. (Le Fevre Jan. dec. para. 10; Odencrantz dec. para. 6; Momboisse dec. para. 6.)

 II. Discussion

 A. Order to Show Cause

 Defendant contends that the Court should not consider granting summary judgment for plaintiff unless and until plaintiff has moved for summary judgment. He concedes that the Court has the authority to proceed sua sponte via an Order to Show Cause, Celotex Corp. v. Catrett, 477 U.S. 317, 326, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Golden State Transit Corp. v. City of Los Angeles, 726 F.2d 1430, 1431 n. 1 (9th Cir. 1984), cert. denied, 471 U.S. 1003, 85 L. Ed. 2d 159, 105 S. Ct. 1865 (1985), but "questions the wisdom of exercising the rule in this case." (Def.'s Opp. at 2-3 n. 2.)

 So long as the INS had adequate notice of the issues to be addressed and "had a full and fair opportunity to ventilate the issues involved in the motion," it has not been prejudiced. Cool Fuel, Inc. v. Connett, 685 F.2d 309, 312 (9th Cir. 1982). Here, there have been three rounds of briefing on summary judgment motions, and the Court has given clear instructions to the INS concerning the issues to be addressed. Further, the INS has been given ample time to submit a reply brief. Thus it is proper for the Court to consider granting summary judgment on liability for Nisperos.

 B. The Rehabilitation Act

 As a federal employee, Nisperos' claim of discrimination based on a handicap arises exclusively under section 501 of the Rehabilitation Act, 29 U.S.C. § 791. Johnston v. Horne, 875 F.2d 1415, 1420-21 (9th Cir. 1989); Boyd v. United States Postal Service, 752 F.2d 410, 413 (9th Cir. ...


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