r in the value of treatment for chemical abuse and that he saw Miners as being at particular risk, given the nature of her work. Miners' evidence permits a finding that Cargill created the policy at issue to target Miners and expose what it regarded as her alcoholism. Under these circumstances, a jury could reasonably find that Cargill was less interested in whether Miners was driving under the influence than in looking for a lever to force her into treatment for alcoholism. Although the district court is correct in stating that Cargill would be justified in firing Miners if she were driving a company vehicle while under the influence of alcohol, see 42 U.S.C. § 12182(b)(3), in this case, the question whether Cargill actually believed Miners was doing so becomes a credibility issue to be determined by the factfinder. Cargill alternatively argues that even if it perceived Miners to be an alcoholic, its offer of treatment was an appropriate accommodation of Miners' disability. It cites Senate Sergeant at Arms v. Senate Fair Employment Practices, 95 F.3d 1102, 1107 (Fed. Cir. 1996), in support of its position that "[t]reatment would seem to be essential to any accommodation for alcoholism. If an individual refuses treatment when offered, then discipline is appropriate." This case is distinguishable.

This court reversed in part, affirmed in part, and remanded. Office of the Senate Sergeant at Arms v. Office of Senate Fair Employment Practices, 95 F.3d 1102 (Fed. Cir. 1996) ( Singer I). This court held that the GERA requires an employer to provide a "reasonable accommodation" to qualifying, disabled employees.

The Eighth Circuit indicated in Wallin v. Minnesota Dept. of Corrections, 153 F.3d 681 (8th Cir.1998), that alcoholism may qualify as a disability under the ADA, but “evidence that [ ] [the] alcoholism [has] impaired a major life activity” must be presented by the plaintiff. Wallin, 153 F.3d at 686 n. 4 (citing Burch v. Coca–Cola Co., 119 F.3d 305, 315–16 (5th Cir.1997) (there must be an individualized showing that alcoholic plaintiff suffered permanent impairment, and evidence that alcoholics, in general, are impaired is inadequate)); Office of the Senate Sergeant at Arms v. Office of Senate Fair Employment Practices, 95 F.3d 1102, 1105 (Fed.Cir.1996) (citing Crewe v. United States Office of Personnel Management, 834 F.2d 140, 141–42 (8th Cir.1987)) (“[I]t is well-established that alcoholism meets the definition of a disability.”). The issue of whether Plaintiff's alcoholism qualifies as a disability under the ADA, however, is not contested in the instant motion and the Court will proceed under the presumption that Plaintiff is disabled within the meaning of the ADA.

It is axiomatic that the issue in Pernice is not presently before this court, and accordingly, Defendant's reliance on Pernice is unavailing. Defendant makes the additional argument that the ADA does not erect an impenetrable barrier around a disabled employee preventing the employer from taking action against the employee or requiring it to provide an employee with a fresh start or second chance, citing Siefken v. Village Of Arlington Heights, 65 F.3d 664,666-67 (7th Cir. 1995), Hill, 181 F.3d at 894, Burch v. Coca-Cola Co., 119 F.3d 305, 320 n.14 (5th Cir. 1997), and Office of Senate Sergeant at Arms v. Office of Senate Fair Emp't. Practices, 95 F.3d 1102, 1107-08 (Fed. Cir. 1996). A careful reading of those cases, however, does not support Defendant's arguments.

Indeed, Plaintiff informed Brannon that he would return to work the following day. After considering this evidence, the court concludes that Plaintiff's statement to Brannon regarding his mental state was insufficient to place Defendants on notice of Plaintiff's disability. In Senate Sergeant at Arms v. Senate Fair Employment Practices, 95 F.3d 1102, 1104 (Fed. Cir. 1996), the Plaintiff, a United States Senate employee who suffered from the disabilities of alcoholism and depression, was disciplined for attendance problems and violation of a "call-off" rule, a rule requiring employees who request unscheduled leave to do so at least one hour before their shifts are to begin. More specifically, between July 1991 and October 25, 1993, Plaintiff failed to comply with the "call-off" rule on fourteen occasions.

Neal's insistence to the contrary sought "not a disability accommodation, but ‘a second chance to better control [her] treatable medical condition.’ " Halpern , 669 F.3d at 465 (quoting Hill v. Kan. City Area Transp. Auth. , 181 F.3d 891, 894 (8th Cir. 1999) ); Off. of the Senate Sergeant. at Arms v. Off. of Senate Fair Emp. Pracs. , 95 F.3d 1102, 1107 (Fed. Cir. 1996) ("[T]he ADA ... does not require a retroactive accommodation for a disability, which is what is meant by a fresh start."); see alsoDavila v. Qwest Corp. , 113 F. App'x 849, 854 (10th Cir. 2004) ("[E]xcusing ... misconduct to provide a fresh start/second chance to an employee whose disability could be offered as an after-the-fact excuse is not a required accommodation under the ADA." (citations omitted)).

Bailey bears the burden of establishing each of these elements. There is no question that alcoholism is an impairment for purposes of the first prong of analysis under the ADA.See Evans v. Fed. Express Corp., 133 F.3d 137, 139 (1st Cir. 1998); see also Reg'l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 46 (2d Cir. 2002), petition for cert. filed, 70 U.S.L.W. 3698 (May 03, 2002) (No. 01-1624); Miners v. Cargill Communications, Inc., 113 F.3d 820, 823 n. 5 (8th Cir. 1997); Office of the Senate Sergeant at Arms v. Office of Senate Fair Employment Practices, 95 F.3d 1102, 1105 (Fed. Cir. 1996). This conclusion is reinforced by the statute's legislative history.

Several circuits have held that alcoholism is a disability under the ADA. See, e.g., Mararri v. WCI Steel, Inc., 130 F.3d 1180, 1180 (6th Cir. 1997); Buckley v. Consolidated Edison Co. of New York, 127 F.3d 270, 273 (2d Cir. 1997), vacated en banc on other grounds, 155 F.3d 150 (2d Cir. 1998); Miners v. Cargill Communications, Inc., 113 F.3d 820, 823 n. 5 (8th Cir. 1997); Office of the Senate Sergeant at Arms v. Office of Senate Fair Employment Practices, 95 F.3d 1102, 1105 (Fed. Cir. 1996); cf. Despears v. Milwaukee County, 63 F.3d 635, 635 (7th Cir. 1995) (noting that the parties did not deny that alcoholism is a disability under the ADA). Whether alcoholism is a disability per se may raise additional issues.

Other circuits have deemed alcohol or drug addiction to be an impairment that "substantially limits one or more . . . major life activities" and therefore qualifies as a disability under the ADA. See, e.g., Miners v. Cargill Communications, Inc., 113 F.3d 820, 823 n.5 (8th Cir. 1997) (recognizing that alcoholism is a disability for purposes of the ADA); Office of the Senate Sergeant at Arms v. Office of Senate Fair Employment Practices, 95 F.3d 1102, 1105 (Fed. Cir. 1996) (stating that "it is well-established that alcoholism meets the definition of a disability" under the ADA). We, moreover, have previously held that "substance abuse is a `handicap' for purposes of the Rehabilitation Act," Teahan v. Metro-North Commuter R.R. Co., 951 F.2d 511, 517 (2d Cir. 1991).

Compare Fuller v. Frank, 916 F.2d 558, 562 (9th Cir. 1990) (discussing firm-choice rule); Rodgers v. Lehman, 869 F.2d 253, 259 (4th Cir. 1989) (same), with Johnson v. Babbitt, EEOC No. 03940100, 1996 WL 159072 (EEOC Mar. 28, 1996) (finding 1992 amendment to Rehabilitation Act, 29 U.S.C. §(s) 791(g), which incorporated section 12114(c)(4), eliminated the requirement that an employer provide a "firm choice" as an accommodation). But cf. Office of the Senate Sergeant at Arms v. Office of Senate Fair Employment Practice, 95 F.3d 1102 (Fed. Cir. 1996) (finding that amended Rehabilitation Act obliged employer to provide leave for treatment to a disabled alcoholic as a reasonable accommodation, but did not require a "retroactive accommodation" by excusing misconduct). In the cases cited by Coca-Cola, the employer's reason for termination was either uncontested or unrefuted by the employee.