concurring in part and dissenting in part.
I concur in the majority’s disposition of the contract claim. However, I do not agree with the majority that a reasonable juror could find in plaintiffs favor on the “reasonable accommodation” issue. I therefore dissent from the majority’s disposition of the statutory claim, and I would affirm the judgment of the trial court in its entirety.
In Braun v. American International Health, 315 Or 460, 846 P2d 1151 (1993), the Supreme Court discussed a number of issues concerning an employer’s duties in connection with alcoholic employees under ORS 659.4251 and under the Federal Rehabilitation Act of 1973. After discussing arguments by the plaintiff that the state statutory requirement of “reasonable accommodation” should be interpreted consistently with certain authorities construing or applying the federal act, the Oregon court stated:
“The difficulty with the authorities on which plaintiff relies is that the standards that the federal government requires itself to meet as an employer of the disabled under section 501 [of the federal statute] are much higher than the standards that the government requires state and local governments and private employers to meet under sections 503 and 504. Section 501 was ‘intended to make the federal government a model employer of the handicapped.’ Crewe v. U.S. Office of Personnel Management, * * * 834 F2d [140,] 142, [8th Cir 1987]; see also 29 CFR § 1613.703 (1992) (‘The Federal government shall become a model employer of handicapped individuals.’). With regard to alcoholism in *717particular, the extensive scope of the government’s self-imposed duty of reasonable accommodation * * * arises not only from section 501, but also from other federal law and internal publications that apply only to the federal government.” Id. at 471.
The court then proceeded, in a footnote quoting from Fuller v. Frank, 916 F2d 558, 562 (9th Cir 1990), to describe
“[t]he ‘reasonable accommodation’ that a federal employer must make for an alcoholic employee * * *:
“ ‘ “[Rleasonable 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 further relapse.’ ” Braun, 315 Or at 471 n 15 (emphasis in original).
Finally, the court observed in Braun that, in general contrast to section 501 of the federal statute:
“There is no equivalent showing that the Oregon legislature intended to impose such high standards on private employers under ORS 659.425(l)(a). On the contrary, legislative history suggests that the legislature chose to impose a lesser burden on employers under ORS 659.425(l)(a) * * Id. at 471-72.
It is apparent from the above discussion that, at the least, the “reasonable accommodation” standard that defendant, a private employer, must meet under the state statute is no higher than the standard for federal employers that the courts described in Braun and Fuller. I would nevertheless hold that, even if we apply the standard set forth in Braun and Fuller, defendant did reasonably accommodate plaintiffs alcoholism. Plaintiff sought counseling at defendant’s suggestion; he was given the “firm choice” — and the opportunity to implement it — between treatment and discipline; he then underwent inpatient treatment at defendant’s insistence; and he suffered a further relapse.
*718After having undertaken the above actions, defendant had done all that the reasonable accommodation provision of the state statute required of it. Even if the prospects were high that additional inpatient treatment would meet with success, notwithstanding that plaintiffs active alcoholism had persisted unabated through his first inpatient stay, that does not change the fact that the statutory requirement had been met. The prospects for plaintiffs future improvement ceased to be legally relevant beyond that point. Moreover, if the factual inquiry on which the majority focuses were of any continuing relevance, the majority’s portrayal of the positive expectations from a second hospitalization that were entertained in the summer of 1993 is decidedly lopsided, even under a standard of review in which all facts are to be viewed as favorably as possible to plaintiff. It would be more accurate to say that the treating personnel at Springbrook were of the view that plaintiff had gained no ground there, that they could do nothing more for him, and that treatment at the out-of-state COPAC facility was a last-ditch hope.2
Even the federal authority on which the majority relies recognizes that “an employer would not be required to provide repeated leaves of absence (or perhaps even a single leave of absence) for an alcoholic employee with a poor prognosis for recovery.” Schmidt v. Safeway Inc., 864 F Supp 991, 996 (D Or 1994). Indeed, the majority’s emphasis on the fact that plaintiff had never taken a leave of absence to undergo inpatient therapy seems to me to miss the mark. The fact is that — whether on defendant’s time or his own — plaintiff had undergone inpatient treatment before his purported discharge, and it had been unsuccessful. Nothing that defendant’s personnel could have known, in the aftermath of the inpatient treatment that plaintiff underwent as required by *719the parties’ “last chance agreement,” could have given them reason to think that a leave of absence for further hospitalization would have been anything more than a long-odds gamble on top of the one they had already lost.
It is important to emphasize that the question here is not whether plaintiff was in any way blameworthy. Compare Steele v. Employment Department, 143 Or App 105, 923 P2d 1252, rev allowed 324 Or 487 (1996) (relating to whether and when discharges resulting from alcoholism are for work-related misconduct under the unemployment compensation statutes). The question is also not whether defendant’s response to the situation was “estimable,” in some subjective sense that the majority or I might find desirable. The question is whether the law required defendant, a private employer, to do more them it did to accommodate plaintiffs alcoholism before constructively discharging him.3
I acknowledge that the language in Braun, which it quotes from Fuller and on which I rely, is dictum. It is nevertheless dictum from the state’s highest court on a question to which it devoted significant attention. The court’s statement also accords with what I regard as common sense. The most that can reasonably be required of an employer, in accommodating a condition that has no definable “cure” and the ultimate improvement of which can only be projected from present events, is that the employer see the employee through one full cycle of graduated therapeutic and disciplinary measures. It is always possible that a person who undergoes inpatient treatment, although aware that termination will follow from failure, will fail and will nevertheless succeed on some later occasion. It is also always possible that an initial success will be followed by a later relapse. The BraunFuller formulation places a line in the shifting sand that both the employer and the employee can keep in view. The majority’s formulation, conversely, is as uncertain as the disease itself. There is invariably “one more” treatment that can be tried. But, just as the prospects for plaintiff at COPAC were not recognized until his experience at Springbrook had been *720unsuccessful, employers generally can have no more assurance that a second course of inpatient treatment will succeed than a first — especially since a second would not generally be indicated unless the first has failed or has culminated in a relapse after a seeming success.
The majority relies almost exclusively on OAR 839-06-245 (1991) and notes that the court in Braun observed that the legislature left the “development of the concept of ‘reasonable accommodation’ to the Bureau of Labor and Industries in its administrative rules,” such as the cited one. Braun, 315 Or at 472. The majority faults me for not giving sufficient attention to OAR 839-06-245 (1991). However, the rule was in effect when Braun was decided and was specifically discussed in the court’s opinion (albeit in an unrelated connection). The court in Braun nevertheless made the statements I have quoted concerning reasonable accommodation of alcoholism, and it did so without reference to the rule that, as it demonstrated elsewhere in its opinion, it knew existed. In any event, I see no inconsistency between the Supreme Court’s statements and the rule and, presumably, neither did the Supreme Court. The rule is cast in very general terms, and seemingly applies without differentiation to impairments of all kinds; conversely, the court’s statements in Braun relate specifically to the requirements for reasonable accommodation of the specific and unique form of impairment that was involved in Braun and that is involved in this case.
I would hold that defendant had no further duty of reasonable accommodation under ORS 659.425 after plaintiff suffered a relapse in the summer of 1993 and failed to satisfactorily complete his course of inpatient treatment at Springbrook. I therefore respectfully dissént from the reversal of the summary judgment against plaintiff on his statutory claim.
Warren, J., joins in this opinion.I note at the outset that the issues in Braun and here are not identical. I rely on the court’s statements in Braun by way of analogy. However, the analogy is strong, and Braun is the only case of either Oregon appellate court that has discussed the application of ORS 659.425 in connection with an alcoholic employee.
1 by no means imply that the situation was in fact hopeless; indeed, there is evidence in the record that plaintiff had gone without alcohol for a significant period as of the time when that evidence was taken. However, the inquiry is necessarily one of expectations at the times that actions were taken, rather than one about ultimate events. The nature of alcoholism is such that ultimate outcomes are essentially unknowable. Periods of recovery and relapse are often incidents of the condition. See, e.g., Steele v. Employment Department, 143 Or App 105, 108-09, 923 P2d 1252, rev allowed 324 Or 487 (1996), and cases there cited. However, wherever the point may be, a “reasonable accommodation” of the disease must necessarily have an ending point in time, while the progress of the disease and of recovery do not.
I accept as true, for purposes of this opinion, that plaintiff was constructively discharged, because I agree with the majority that that is a fact that the jury could find.