William E. Fuller v. Anthony M. Frank, Postmaster Gen. Mary Frank, 916 F.2d 558 (9th Cir. 1990). · Go Syfert
William E. Fuller v. Anthony M. Frank, Postmaster Gen. Mary Frank, 916 F.2d 558 (9th Cir. 1990). Cases Citing This Book View Copy Cite
111 citation events (15 in the last 25 years) across 30 distinct courts.
Strongest positive: Leanna Coffman v. Nexstar Media Inc. (ca4, 2025-07-22) · Strongest negative: Howard v. City of Beavercreek (ohsd, 2000-08-08)
Treatment trajectory · 1991 → 2026 · click a year to view as-of
1991 2008 2026
Top citers, strongest first. 49 distinct citers.
discussed Cited "but see" Howard v. City of Beavercreek
S.D. Ohio · 2000 · signal: but see · confidence high
Whether an accommodation is reasonable is a mixed question of law and fact, see Rascon v. U.S. West Comm’n Inc., 143 F.3d 1324, 1333 (10th Cir.1998), “[wjhich primarily involves the consideration of legal principles.” Keys Youth Serv. v. City of Olathe, 75 F.Supp.2d 1235, 1246 (D.Kan. 1999) (citing Rascon, 143 F.3d at 1333 ); but see Fuller v. Frank, 916 F.2d 558, 562 (9th Cir.1990) (finding under the Rehabilitation Act that “[wjhether the agency has provided ‘reasonable accommodation’ is ordinarily a question of fact.
discussed Cited as authority (rule) Leanna Coffman v. Nexstar Media Inc.
4th Cir. · 2025 · confidence medium
See Halpern, 669 F.3d at 465 (“the indefinite duration and uncertain likelihood of success of Halpern’s proposed accommodation renders it unreasonable”); Myers, 50 F.3d at 283 (“reasonable accommodation does not include duty to await uncertain results”) (citing Fuller v. Frank, 916 F.2d 558, 562 (9th Cir. 1990)); Haynes, 521 S.E.2d at 344 n.17 (“by disabling condition, we refer to a totally disabling medical condition of limited duration”) (emphasis added).
discussed Cited as authority (rule) Chandler v. DeJoy
D. Ariz. · 2024 · signal: cf. · confidence medium
Cf. Fuller v. Frank, 916 F.2d 558, 562 (9th Cir. 18 1990) (“Fuller also contends that he entered a treatment program before his removal 19 became effective and that the Postal Service should have awaited the outcome of this 20 treatment or reinstated him.
cited Cited as authority (rule) Yvette Square v. John Potter
9th Cir. · 2011 · confidence medium
See Coons v. Sec’y of the U.S. Dep’t of the Treasury, 383 F.3d 879, 884-85 (9th Cir.2004) (disability); Fuller v. Frank, 916 F.2d 558, 561 (9th Cir.1990) (reasonable accommodation).
discussed Cited as authority (rule) Cavanaugh v. Southern California Permanente Medical Group, Inc.
C.D. Cal. · 2008 · confidence medium
However, as noted in such cases as Fuller v. Frank, 916 F.2d 558, 562 (9th Cir.1990), where an employee with an alcohol problem has been provided with a last chance agreement and given time plus assistance in locating a treatment program, the employer is “not required to provide [the employee] with another chance after having given him a 'last chance.’ [Footnote omitted].’’ 23 .
discussed Cited as authority (rule) Bateman v. United States Postal Service
9th Cir. · 2002 · confidence medium
As we noted in Fuller v. Frank, 916 F.2d 558, 560 (9th Cir.1990), “[t]his regulation contains essentially three elements: (1) plaintiff must be a “qualified” handicapped individual; (2) the agency must make “reasonable accommodation” to the handicap; and (3) the accommodation need not be made if it would impose an “undue hardship.” ” In ruling on this claim, the district court noted that the USPS put forward significant evidence showing that it modified Bateman’s employment conditions to reflect the accommodation recommendations of Bateman’s physicians.
cited Cited as authority (rule) Swingle v. Henderson
D.N.J. · 2001 · confidence medium
Fuller v. Frank, 916 F.2d 558, 563 (9th Cir.1990).
discussed Cited as authority (rule) Holmes v. Willamette University (2×) also: Cited "see, e.g."
Or. Ct. App. · 1998 · confidence medium
The court then proceeded, in a footnote quoting from Fuller v. Frank, 916 F.2d 558, 562 (9th Cir.1990), to describe "[t]he `reasonable accommodation' that a federal employer must make for an alcoholic employee * * *: "`"[R]easonable accommodation" requires that a governmental employer follow a progression of increasingly severe responses to an employee's alcoholism.
discussed Cited as authority (rule) Elijah Porter, Jr. v. Marvin T. Runyon, Jr.
9th Cir. · 1998 · confidence medium
See 29 C.F.R. 1613.704(c); Fuller v. Frank, 916 F.2d 558, 561-62 (9th Cir.1990) (holding that governmental employer reasonably accommodates alcoholic by following a progression of increasingly severe responses to employee's alcoholism). 5 The district court properly determined that the Act did not protect Porter from discharge that resulted from his own misconduct.
discussed Cited as authority (rule) Jones v. Corrections Corp. of America
D. Kan. · 1998 · confidence medium
Defendants propose that allowing an opportunity to participate in treatment is reasonable accommodation of an addiction, citing two cases concerning the disability of alcoholism in support: Williams v. Widnall, 79 F.3d 1003, 1006 (10th Cir.1996); and Fuller v. Frank, 916 F.2d 558, 562 (9th Cir.1990).
discussed Cited as authority (rule) Stores v. Labor & Industry Review Commission
Wis. Ct. App. · 1998 · confidence medium
Numerous courts in *19 other jurisdictions applying similar federal and state laws prohibiting handicap discrimination in employment have concluded that granting an employee a leave of absence to pursue medical treatment is a "reasonable accommodation." See, e.g., Fuller v. Frank, 916 F.2d 558, 561-63 (9th Cir. 1990); Kimbro v. Atlantic Richfield Co., 889 F.2d 869, 877-79 (9th Cir. 1989); Rodgers v. Lehman, 869 F.2d 253, 258-59 (4th Cir. 1989); Schmidt v. Safeway, Inc., 864 F. Supp. 991 , 996—97 (D.
discussed Cited as authority (rule) United States v. Hartford Acc. & Indem. Co.
9th Cir. · 1997 · confidence medium
"Failure to comply with the requirements of Rule 56(f) is a proper ground for denying discovery and proceeding to summary judgment." Fuller v. Frank, 916 F.2d 558, 563 (9th Cir.1990) (quoting Brae Transp., Inc. v. Coopers & Lybrand, 790 F.2d 1439 , 1443 (9th Cir.1986)).
discussed Cited as authority (rule) Dennis v. Thurman
C.D. Cal. · 1997 · confidence medium
Fuller v. Frank, 916 F.2d 558, 563 (9th Cir.1990) (defendant's failure to answer the amended complaint is irrelevant, as a motion for summary judgment is a proper response to a complaint) [3] The Court records do not show that service of process was effected on defendants Thurman, Mellot, Hernandez, Gaunt, Martinez, Tome, Stivas, and Johnson. [4] In Madrid v. Gomez , the court described the use of a 38 mm gas gun, which shoots rubber blocks at high velocity.
discussed Cited as authority (rule) Dennis v. Thurman
C.D. Cal. · 1997 · confidence medium
Fuller v. Frank, 916 F.2d 558, 563 (9th Cir.1990) (defendant’s failure to answer the amended complaint is irrelevant, as a motion for summary judgment is a proper response to a complaint) .The Court records do not show that service of process was effected on defendants Thurman, Mellot, Hernandez, Gaunt, Martinez, Tome, Sti-vas, and Johnson. .
discussed Cited as authority (rule) Gosvener v. Coastal Corp.
Cal. Ct. App. · 1996 · confidence medium
For instance, in Fuller v. Frank (9th Cir. 1990) 916 F.2d 558, 561-562 [122 A.L.R.Fed. 699] (Fuller), the Ninth Circuit affirmed an order granting summary judgment against the claims of a California postal employee who persisted in the abuse of alcohol, despite repeated unsuccessful attempts by his employer to accommodate his alcohol problem and bring about a recovery.
discussed Cited as authority (rule) Gomez v. American Building Maintenance
N.D. Cal. · 1996 · confidence medium
See Equal Employment Opportunity Commission, Technical Assistance Manual on the Employment Provisions (Title I) of the Americans With Disabilities Act (“EEOC Manual”), § 3.1, reprinted in 2 Americans With Disabilities, Practice and Compliance Manual (Lawyers Cooperative Publishing, 1995); see also School Board of Nassau County v. Arline, 480 U.S. 273 , 289 n. 19, 107 S.Ct. 1123 , 1131 n. 19, 94 L.Ed.2d 307 (1987) (an employer is not required to find another job for an employee who is not qualified for the job he or she is doing); Fuller v. Frank, 916 F.2d 558, 562 (9th Cir.1990) (a disabl…
cited Cited as authority (rule) Munoz v. H & M WHOLESALE, INC.
S.D. Tex. · 1996 · confidence medium
Id. (citing Fuller v. Frank, 916 F.2d 558, 562 (9th Cir.1990)).
discussed Cited as authority (rule) Donald R. Newland v. John H. Dalton, Secretary of the Navy
9th Cir. · 1996 · confidence medium
Alcoholism is a recognized handicap, Fuller v. Frank, 916 F.2d 558, 561 (9th Cir.1990), but the majority of courts have held that while the Rehabilitation Act (“Act”) protects employees from being fired solely because of their disability, they are still responsible for conduct which would otherwise result in their termination.
cited Cited as authority (rule) Elijah Porter, Jr. v. Marvin T. Runyon, Jr.
9th Cir. · 1996 · confidence medium
We review de novo, Fuller v. Frank, 916 F.2d 558, 561 (9th Cir.1990), and affirm in part and vacate and remand in part.
cited Cited as authority (rule) Robert E. Maddox, III v. University of Tennessee University of Tennessee Board of Trustees Doug A. Dickey
6th Cir. · 1995 · confidence medium
See Tinch v. Walters, 765 F.2d 599, 603 (6th Cir.1985); Fuller v. Frank, 916 F.2d 558, 560 (9th Cir.1990).
discussed Cited as authority (rule) Leary v. NAVY, Secretary
1st Cir. · 1995 · confidence medium
It is well settled that alcoholism is a disability within the meaning of the Act.2 See, e.g., Cook v. Department of Mental Health, ___ ____ ____ _____________________________ Retardation & Hosps., 10 F.3d 17, 24 (1st Cir. 1993); Little, ____________________ ______ 1 F.3d at 257 ; Fuller v. Frank, 916 F.2d 558, 561 (9th Cir. ______ _____ 1990).
discussed Cited as authority (rule) Leary v. NAVY, Secretary
1st Cir. · 1995 · confidence medium
It is well settled that alcoholism is a disability within the meaning of the Act. 2 See, e.g., Cook v. Department of Mental Health, Retardation & Hosps., 10 F.3d 17, 24 (1st Cir. 1993); Little, 1 F.3d at 257 ; Fuller v. Frank, 916 F.2d 558, 561 (9th Cir.1990).
discussed Cited as authority (rule) John L. Voisin v. Jerry Cole
9th Cir. · 1995 · confidence medium
Fuller v. Frank, 916 F.2d 558, 563 (9th Cir. 1990). 8 This court will address such an issue only if review is necessary to prevent a miscarriage of justice, the new issue arises because of a change in the law, or the issue is purely a legal one.
discussed Cited as authority (rule) ca9 1994 (2×) also: Cited "see, e.g."
9th Cir. · 1994 · signal: cf. · confidence medium
Cf. Preiser v. Newkirk, 422 U.S. 395, 402 (1975) (claims for injunctive relief mooted by transfer of prisoner absent reasonable expectation that adverse action would ensue and wrong repeated). 2 IV. 8 A disabled employee "is required to be qualified for the then current 'position' he holds ... and transfer is not required." Fuller v. Frank, 916 F.2d 558, 562 (9th Cir.1990) (citation omitted).
cited Cited as authority (rule) Waring Park v. Internal Revenue Service District Director
9th Cir. · 1994 · confidence medium
A claim which is beyond the allegations of the complaint which was before the district court "is not properly before this court on appeal." Fuller v. Frank, 916 F.2d 558, 563 (9th Cir.1990).
cited Cited as authority (rule) Magruder v. Runyon
D. Kan. · 1994 · confidence medium
Fuller v. Frank, 916 F.2d 558, 561 (9th Cir.1990).
examined Cited as authority (rule) Melvin Buckingham v. United States of America, United States Postal Service, and Anthony M. Frank, Postmaster General (4×) also: Cited "see, e.g."
9th Cir. · 1993 · confidence medium
Fuller v. Frank, 916 F.2d 558, 561 (9th Cir.1990).
discussed Cited as authority (rule) Golson-El v. Runyon
E.D. Pa. · 1993 · confidence medium
Co., 951 F.2d 511, 517 (2d Cir.1991), cert. denied, — U.S. -, 113 S.Ct. 54 , 121 L.Ed.2d 24 (1992); Fuller v. Frank, 916 F.2d 558, 561 (9th Cir.1990); Gallagher v. Catto, 778 F.Supp. 570, 577 (D.D.C.1991).
discussed Cited as authority (rule) Debra L. McWright v. Lamar Alexander, Secretary of the United States Department of Education, and United States Department of Education
7th Cir. · 1992 · confidence medium
Langon v. Department of Health & Human Serv., 959 F.2d 1053, 1057-58 (D.C.Cir.1992); Fuller v. Frank, 916 F.2d 558, 561 (9th Cir.1990); Rodgers v. Lehman, 869 F.2d 253, 258-59 (4th Cir.1989); Carter v. Bennett, 840 F.2d 63, 65 (D.C.Cir.1988); see also Ristoff 839 F.2d at 1244 .
cited Cited as authority (rule) Kaffenberger v. City of Bullhead City, Ariz.
9th Cir. · 1992 · confidence medium
Fuller v. Frank, 916 F.2d 558, 561 (9th Cir.1990).
cited Cited as authority (rule) Michael Goff v. Louis W. Sullivan, Secretary, Hhs
9th Cir. · 1992 · confidence medium
Fuller v. Frank, 916 F.2d 558, 561 (9th Cir.1990).
cited Cited as authority (rule) Gideon T. Bishena v. Marriott Corporation, a Corporation, and Host International, a Corporation
9th Cir. · 1992 · confidence medium
Fuller v. Frank, 916 F.2d 558, 561 (9th Cir.1990).
examined Cited as authority (rule) Gallagher v. Catto (5×) also: Cited "see", Cited "see, e.g."
D.D.C. · 1991 · confidence medium
Whitlock v. Brock, 790 F.2d 964 (D.C.Cir.1986); Fuller v. Frank, 916 F.2d 558, 561 (9th Cir.1990); Rodgers v. Lehman, 869 F.2d 253 (4th Cir.1989).
cited Cited as authority (rule) United States Department of the Air Force v. Federal Labor Relations Authority
D.C. Cir. · 1991 · confidence medium
See, e.g., Girani v. FAA, 924 F.2d 237 (Fed.Cir.1991); Fuller v. Frank, 916 F.2d 558, 562 (9th Cir.1990).
discussed Cited as authority (rule) United States Department Of The Air Force v. Federal Labor Relations Authority
D.C. Cir. · 1991 · confidence medium
See, e.g., Girani v. FAA, 924 F.2d 237 (Fed.Cir.1991); Fuller v. Frank, 916 F.2d 558, 562 (9th Cir.1990). 5 If the employee fails to measure up as promised in a last chance agreement, the agency may proceed to administer the discipline earlier suspended.
cited Cited as authority (rule) Dennis C. Barsten v. Department of the Interior
9th Cir. · 1991 · confidence medium
We have jurisdiction under 28 U.S.C. § 1291 and affirm. 3 "We review a district court's grant of summary judgment de novo." Fuller v. Frank, 916 F.2d 558, 561 (9th Cir.1990).
cited Cited "see" Michael Bacon v. Nadine Woodward
9th Cir. · 2024 · signal: see · confidence high
See Fuller v. Frank, 916 F.2d 558, 563 (9th Cir. 1990).
cited Cited "see" No. 97-55024
9th Cir. · 1999 · signal: see · confidence high
See Fuller v. Frank, 916 F.2d 558 , 562 n. 6 (9th Cir.1990).
cited Cited "see" Lujan v. Pacific Maritime Ass'n
9th Cir. · 1999 · signal: see · confidence high
See Fuller v. Frank, 916 F.2d 558 , 562 n. 6 (9th Cir.1990).
discussed Cited "see" Michael Labrucherie v. The Regents of the University of California, Dba Lawrence Livermore National Laboratory
9th Cir. · 1997 · signal: see · confidence high
See Fuller v. Frank, 916 F.2d 558, 561 (9th Cir.1990) ("In the context of alcoholism, 'reasonable accommodation' must be limited in scope; continued 'accommodation' would simply enable an alcoholic to continue his or her drinking.").
discussed Cited "see" Joe Laura Teague, Personal Representative of the Estate of Billy R. Wilcoxson, Deceased v. Las Vegas Sands, Inc., Dba Sands Hotel & Casino
9th Cir. · 1997 · signal: see · confidence high
See Fuller v. Frank, 916 F.2d 558, 562 (9th Cir.1990); see also Myers v. Hose, 50 F.3d 278, 283 (4th Cir.1995) ("Reasonable accommodation" does not require employer to wait indefinite period for accommodation to achieve its intended effect). 5 Sands granted Wilcoxson several extensions of his leave, as well as additional time to obtain a release from his doctor, totaling over seven months.
discussed Cited "see" Oase v. City of Tucson, Arizona
9th Cir. · 1996 · signal: see · confidence high
See Fuller v. Frank, 916 F.2d 558, 563 (9th Cir.1990). 5 Oase contends that the district court erred by granting summary judgment to Hancock on the basis that she was entitled to qualified immunity because Oase had not voluntarily consented to the two inspections.
cited Cited "see" Dever v. Turner
6th Cir. · 1996 · signal: see · confidence high
See Fuller v. Frank, 916 F.2d 558, 563 (9th Cir.1990) (claim not reviewable because it was beyond the allegations of the complaint).
discussed Cited "see" Mack H. Williams v. Sheila E. Widnall, Secretary, Department of the Air Force, Agency (2×)
10th Cir. · 1996 · signal: see · confidence high
See Fuller v. Frank, 916 F.2d 558, 562 (9th Cir.1990).
discussed Cited "see" Turco v. Hoechst Celanese Chemical Group, Inc. (2×)
S.D. Tex. · 1995 · signal: see · confidence high
See Fuller v. Frank, 916 F.2d 558, 562 (9th Cir.1990) (holding that U.S. Postal Service was not required, after issuing “last chance” warning, to await outcome of alcoholic post carrier’s treatment before terminating him); Myers v. Hose, 50 F.3d 278, 283-84 (4th Cir.1995).
discussed Cited "see" Hurley-Bardige v. Brown
D. Mass. · 1995 · signal: see · confidence high
See Fuller v. Frank, 916 F.2d 558 (9th Cir.1990) (Post Office not required to reassign alcoholic employee to an inside position where employee already warned he was on his "last chance”); at Boldini v. Postmaster Gen., No. 91-680-L, 1995 WL 303631 , *4 (D.N.H.
discussed Cited "see" Bonita McDonald v. Commonwealth of Pennsylvania, Department of Public Welfare, Polk Center (2×)
3rd Cir. · 1995 · signal: see · confidence high
See Fuller v. Frank, 916 F.2d 558 (9th Cir.1990) (alcoholic federal employee); Rodgers v. Lehman, 869 F.2d 253 (4th Cir.1989) (same); Kimbro v. Atlantic Richfield Co., 889 F.2d 869 (9th Cir.1989) (analogous state statute).
discussed Cited "see" McDonald v. Comm of PA (2×)
3rd Cir. · 1995 · signal: see · confidence high
See Fuller v. Frank, 916 F.2d 558 (9th Cir. 1990) (alcoholic federal employee); Rodgers v. Lehman, 869 F.2d 253 (4th Cir. 1989) (same); Kimbro v. Atlantic Richfield Co., 889 F.2d 869 (9th Cir. 1989) (analogous state statute).
cited Cited "see" J.R. Wilkerson v. Charles D. Marshall, Warden, and Steve Lawrence
9th Cir. · 1995 · signal: see · confidence high
See Fuller v. Frank, 916 F.2d 558, 563 (9th Cir.1990).
William E. FULLER, Plaintiff-Appellant,
v.
Anthony M. FRANK, Postmaster General; Mary Frank, Defendants-Appellees
William R. Beacham, San Francisco, Cal., for plaintiff-appellant., Lori J. Dym, U.S. Postal Service, Washington, D.C., Elizabeth Trager, Asst. U.S. Atty., San Francisco, Cal., for defendants-appellees.
Nelson, Trott, Tashima.
Cited by 74 opinions  |  Published
TASHIMA, District Judge:

Plaintiff William Fuller (“Fuller”), an admitted alcoholic, brought this action under[*560] the Rehabilitation Act of 1973 (the “Act”). [1] He claims that his termination from employment as a letter carrier by defendant, the Postmaster General (the “Postal Service”), constituted handicap discrimination because the Postal Service failed to “reasonably accommodate” his alcoholism. The district court concluded that there was no genuine issue of fact as to whether the Postal Service had reasonably accommodated Fuller’s alcoholism and granted summary judgment in defendant’s favor. We agree with the district court and affirm.

BACKGROUND

Fuller is an admitted alcoholic. By his own testimony, he generally drank a pint of hard liquor and several six-packs of beer each day during the height of his drinking problem. He would begin drinking early in the morning and would continue drinking throughout the day.

Fuller’s problems at the Postal Service began in 1976, when he was excessively absent and took excessive sick leaves. In response, Fuller’s supervisor referred him to the Postal Service’s Employee Assistance Program (“EAP”), early in 1977. The EAP was the Postal Service’s in-house counseling program. It provided basic counseling and referrals to professionals. Later that year, Fuller was “detoxified” at a hospital. He returned to work and briefly participated in the EAP.

In January, 1983, Fuller was issued a letter of warning for unscheduled absences and undependability. That letter listed days he had been absent without leave and his excessive use of leave time. He was again referred to the EAP. Later that year, Fuller entered an in-patient treatment facility for cocaine abuse.

He returned to work, but late in 1983 was suspended for five days for being absent without leave. As part of that disciplinary action, Fuller signed a “structured agreement” which required him to participate in the EAP. However, early in 1984, the EAP notified Fuller’s supervisor that Fuller had attended only one meeting. No further action was taken at that time. [2]

In 1985, Fuller’s supervisor, Paul Goodwin, took Fuller to the hospital for detoxification. Two days later, Fuller called and stated that he would be entering a Veterans Administration treatment program. He was allowed leave without pay to obtain that treatment.

Upon return from that treatment, Fuller’s problems continued to affect his work performance. In July, 1985, a supervisor found Fuller drunk, using profanity and threatening a member of the public while on the job. In response, the Postal Service issued a “notice of proposed removal.” After the union intervened on Fuller’s behalf, a settlement was reached under which Fuller was suspended for two months, and was required to “actively participate” in the EAP for at least 12 months. That signed agreement was referred to as the “last chance agreement,” because it warned Fuller that his failure “to adhere to these conditions or to commit similiar [sic] infractions, shall constitute just cause for his removal.”

Just two months after the last chance agreement was signed, however, Fuller was found off his route, having left his postal vehicle unattended for 45 minutes. Fuller had been drinking and had left the vehicle unlocked with mail and alcohol in it. In response to this incident, as well as Fuller’s failure to participate in the EAP program as required by the last chance agreement, in February of 1986, the Postal Service proposed Fuller’s removal. The decision to remove Fuller was made Feb. 27, 1986, effective March 17, 1986.

[*561] Thus, other than counseling and Alcoholics Anonymous, Fuller received treatment for his alcoholism on at least three occasions before he was dismissed: in 1977 (detoxification); in 1983 (for cocaine); and in 1985 (for cocaine and alcohol). He was disciplined three times: in 1983, 1985, and 1986. On each occasion before his termination, Fuller was specifically required to obtain help for his alcoholism.

Fuller appealed his dismissal to the Merit Systems Protection Board and the Equal Employment Opportunity Commission, both of which affirmed the dismissal. He then filed this action in the district court, alleging that his dismissal violated the Act.

ISSUE

Did the Postal Service reasonably accommodate Fuller’s alcoholism handicap.

STANDARD OF REVIEW

We review a district court’s grant of summary judgment de novo. Cook Inlet Native Ass’n v. Bowen, 810 F.2d 1471, 1473 (9th Cir.1987).

DISCUSSION

Regulations promulgated under 29 U.S.C. § 791 [3] require governmental employers to:

make reasonable accommodation to the known physical or mental limitations of a qualified handicapped applicant or employee unless the agency can demonstrate that the accommodation would impose an undue hardship on the operation of its program.

29 C.F.R. § 1613.704(a). Alcoholism is a covered handicap under this section. See Crewe v. U.S. Office of Personnel Management, 834 F.2d 140, 141 (8th Cir.1987); Ruzek v. General Services Administration, 7 MSPB 307, 7 M.S.P.R. 437 (1981). [4] This regulation contains essentially three elements: (1) plaintiff must be a “qualified” handicapped individual; (2) the agency must make “reasonable accommodation” to the handicap; and (3) the accommodation need not be made if it would impose an “undue hardship.” Because we hold that the Postal Service made a “reasonable accommodation,” we need not address the other two elements of the regulation. [5]

In the context of alcoholism, “reasonable accommodation” must be limited in scope; continued “accommodation” would simply enable an alcoholic to continue his or her drinking.

[B]oth effective treatment and the needs of the workplace require that an alcoholic employee be firmly confronted with the consequences of his drinking. Excessive sensitivity is no more conducive to a cure than is undue rigor, and in the final analysis “reasonable accommodation” is the establishment of a process which embodies a proper balance between the two.

Rodgers v. Lehman, 869 F.2d 253, 259 (4th Cir.1989).

The Postal Service’s actions satisfied the test set forth in Rodgers, which we hereby[*562] adopt. Under Rodgers, “reasonable accommodation” requires that a governmental employer follow a progression of increasingly severe responses to an employee’s alcoholism. The employer should (1) inform the employee of available counseling services; (2) provide the employee with a “firm choice” between treatment and discipline; (3) afford an opportunity for outpatient treatment, with discipline for continued drinking or failures to participate; (4) afford an opportunity for inpatient treatment, if outpatient treatment fails; and (5) absent special circumstances, discharge the employee for any further relapse. Id.

In this case, the Postal Service provided Fuller with each of the opportunities listed above. Although some factual disputes exist as to the purpose of some of the leaves, the record is clear that the Postal Service repeatedly provided counseling and outpatient treatment; in 1977, it allowed leave for detoxification; and in 1985, allowed leave for inpatient treatment. After another relapse, the Postal Service provided a “last chance” agreement, which Fuller violated. The Postal Service allowed Fuller an opportunity to obtain several different levels of treatment and, therefore, reasonably accommodated his alcoholism. [6]

Fuller sets forth several arguments as to why the Postal Service’s actions were insufficient. First, he contends that the EAP should have referred him to a specific inpatient treatment program. However, reasonable accommodation requires only that the agency assist the employee in locating a program and in giving the employee time off to participate in it. The Postal Service did both.

Fuller also contends that after his last incident, he should have been reassigned to an “inside” position which did not require him to drive and which would provide supervision preventing him from drinking. However, having given Fuller a “last chance,” the Postmaster was entitled, and perhaps obligated, to follow through. In addition, the employee is required to be qualified for the then current “position” he holds, 29 C.F.R. § 1613.702(c), and transfer is not required. [7]

Fuller also contends that he entered a treatment program before his removal became effective and that the Postal Service should have awaited the outcome of this treatment or reinstated him. While the Postal Service had the option of doing so, reasonable accommodation did not require such an action. Fuller’s previous attempts at recovery had not been successful and there was no guarantee that this one would have been successful either. In addition, if Fuller’s approach were the law, an employee could conceivably forestall dismissal indefinitely by repeatedly entering treatment whenever dismissal becomes imminent due to a relapse. The last chance agreement would have become meaningless had Fuller been allowed another chance to obtain treatment after having been informed that further violations would not be tolerated. The Postal Service was not required to provide Fuller with another chance after having given him a “last chance.” [8]

Fuller’s remaining arguments are also without merit. No “expert medical[*563] exam” was required, because Fuller’s alcoholism was not in doubt. While the employer may have a duty to counsel the employee about the availability of disability retirement, it is not an element of the “reasonable accommodation” required by the Act.

Even assuming that Fuller’s claim that further discovery would have yielded evidence that he was treated more harshly than other alcoholic employees is meritorious, the record does not indicate that Fuller made a F.R.Civ.P. 56(f) request to the district court. See, e.g., Brae Transp., Inc. v. Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir.1986) (“Failure to comply with the requirements of Rule 56(f) is a proper ground for denying discovery and proceeding to summary judgment.”). Moreover, such a claim is beyond the allegations of the complaint and the requirements of the Act. Thus, the issue is not properly before this court on appeal. Finally, defendant’s failure to answer the amended complaint is irrelevant; a motion to dismiss is a proper response to a complaint, as is a motion for summary judgment. Trotter v. Jack Anderson Enter., Inc., 818 F.2d 431, 432 (5th Cir.1987).

The judgment is AFFIRMED.

1

. 29 U.S.C. § 790 et seq. Plaintiff sues under both §§ 791 & 794. However, federal employees have no right of action under § 794; therefore, summary judgment was proper on that claim. Johnston v. Horne, 875 F.2d 1415, 1421 (9th Cir.1989).

2

. The parties disagree about the purpose of 360 hours of leave in 1984. Fuller contends on appeal that the 1984 leave was for injuries sustained in an auto accident. Although it is not clear that this assertion was ever made a part of the record, we assume for the purposes of this summary judgment that plaintiffs representation is accurate.

3

. This section requires that the Postal Service (along with all federal executive branch agencies) "submit ... an affirmative action program plan for the hiring, placement, and advancement of individuals with handicaps...."

4

. Defendant contends that the Americans with Disabilities Act (ADA), 136 Cong.Rec. H4582 (Jul. 12, 1990) (Conference Committee Report), excludes plaintiff from the protections of the Rehabilitation Act of 1973. Defendant cites § 512(a) of the ADA, which amends the definition of persons with handicaps (by creating a new 29 U.S.C. § 706(8)(C)) to exclude certain classes of persons, including alcoholics whose drinking affects their job performance or constitutes a threat to property or safety.

However, the amendment specifically states that the exclusion applies only to sections 503 and 504 of the Rehabilitation Act. Those sections are codified at 29 U.S.C. §§ 793 and 794. It does not exclude alcoholics from § 791. This may be a technical error, since a virtually identical exclusion already applies to §§ 793 and 794. See 29 U.S.C. § 706(8)(B). Nonetheless, Congress' plain language must be applied. Since the ADA does not apply to § 791, we need not decide whether it should be retroactively applied to this case.

5

.We assume without deciding that Fuller was a "qualified” employee under the Act. Because of our disposition, we need not decide whether Fuller’s practice of drinking on the job (which included driving a postal jeep) rendered him unqualified for the position, as the Postal Service contends.

6

. Whether the agency has provided "reasonable accommodation" is ordinarily a question of fact. See Reynolds v. Brock, 815 F.2d 571, 575 (9th Cir.1987). The employer bears the burden of proving an inability to accommodate. Mantolete v. Bolger, 767 F.2d 1416, 1423 (9th Cir.1985). However, because no "reasonable jury could return a verdict for [plaintiff]," any factual dispute is not "genuine," and summary judgment was therefore appropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

7

. Thus, it is not necessary to decide whether or not the collective bargaining agreement prohibited such reassignment.

8

.Fuller has "supplemented” the record with materials not presented to the district court, most notably, a letter from the EAP recommending against his removal, and letters attesting to his progress in treatment. The Postal Service's motion to strike these documents is granted. F.R.App.P. 10(e) is limited to technical corrections in the record. In any event, the supplementary materials would not have altered our decision. While Fuller's attempts to recover are laudable, they do not affect the determination of whether or not the Postal Service's accommodation was reasonable.