[Federal Register Volume 59, Number 82 (Friday, April 29, 1994)]
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[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-10279]


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[Federal Register: April 29, 1994]


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DEPARTMENT OF LABOR
Office of Federal Contract Compliance Programs

 

Commonwealth Aluminum Corporation Debarment

AGENCY: Office of Federal Contract Compliance Programs, Labor.

ACTION: Notice of Debarment, Commonwealth Aluminum Corporation.

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SUMMARY: This notice advises of the debarment of Commonwealth Aluminum 
Corporation (hereafter ``Commonwealth Aluminum''), as an eligible 
bidder on Government contracts and subcontracts or other modifications 
of any existing Government contracts or subcontracts. The debarment is 
effective immediately.

FOR FURTHER INFORMATION CONTACT: Annie Blackwell, Director Program 
Policy, Office of Federal Contract Compliance Programs, U.S. Department 
of Labor, 200 Constitution Ave., NW., Room C-3325, Washington, DC 20210 
(202-219-9430).

SUPPLEMENTARY INFORMATION: On February 10, 1994, pursuant to 41 CFR 60-
741.29(b)(3), the Acting Assistant Secretary for Employment Standards 
(``Assistant Secretary'') issued a Final Decision and Order: (1) 
Finding Commonwealth Aluminum in violation of Section 503 of the 
Rehabilitation Act of 1973, as amended (29 U.S.C. 793), and its 
implementing regulations; and (2) debarring Commonwealth Aluminum, its 
officers, subsidiaries, and successors, as eligible bidders on 
Government contracts and subcontracts or other modifications of 
existing Government contracts or subcontracts, if the company fails to 
comply with any provision of the Order within the specified time 
periods. The Final Decision and Order required Commonwealth to give the 
complainants, who are identified therein, offers of employment and 
award them appropriate seniority and all other applicable benefits in 
accordance with the Final Decision and Order within 60 days of receipt 
of the Order. It is now in excess of 60 days from the date Commonwealth 
received a certified copy of the Final Decision and Order. None of the 
complainants identified in the Final Decision and Order have received 
offers of employment, appropriate awards of seniority and all other 
applicable benefits. Therefore, it is necessary to commence the 
debarment process. This debarment will remain in effect until 
Commonwealth Aluminum satisfies the Assistant Secretary that it is in 
compliance with Section 503 of the Rehabilitation Act and the 
regulations and orders issued thereunder which have been found to have 
been violated. A copy of the Final Decision and Order is attached.

    Signed April 21, 1994, Washington, DC.
Shirley J. Wilcher,
Deputy Assistant Secretary for Federal Contract Compliance Programs.

Date: February 10, 1994
Case No. 82-OFC-6

    In the matter of: Office of Federal Contract Compliance 
Programs, United States Department of Labor, Plaintiff, v. 
Commonwealth Aluminum, Formerly Martin-Marietta Aluminum of 
Kentucky, Inc., Defendant.
    Before: The Acting Assistant Secretary for Employment Standards.

Final Decision and Order

    This case arises under Section 503 of the Rehabilitation Act of 
1973, as amended, 29 U.S.C. 793 (1988), and its implementing 
regulations at 41 CFR part 60-741 (1992). The Office of Federal 
Contract Compliance Programs (OFCCP) filed exceptions to several 
aspects of the Administrative Law Judge's (ALJ) Recommended Decision 
and Order (R.D. and O.) which concluded that the complaint filed by 
OFCCP should be dismissed in its entirety.

Background

    On September 7, 1982, OFCCP filed a complaint alleging that 
Commonwealth Aluminum\1\ failed to employ or advance in employment 
eight qualified handicapped individuals. Administrative Exhibit (A) 1. 
At the hearing, the complaint relating to William J. Shelton was 
dismissed for ``failure of proof.'' R.D. and O. at 2.
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    \1\Although at the time the complaint was filed Defendant was 
known as Martin-Marietta Aluminum of Kentucky, Inc., for ease of 
reference it will be referred to throughout as Commonwealth.
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    Commonwealth owns and operates an aluminum processing facility near 
Lewisport, Kentucky. All applicants for employment are required to have 
a pre-employment physical examination, which includes back x-rays. Id. 
at 3. If the x-rays reveal evidence of spondylolisthesis, severe 
scoliosis, discogenic disease or severe arthritis, the applicant is 
subject to rejection. Plaintiff's Exhibit (P)-26. If the physical 
examination discloses conditions which are surgically correctable, it 
is Commonwealth's policy to suspend the individual's employment 
application pending treatment. R.D. and O. at 3. See P-3, 5.
    Job applicants Gregory Gray and David Worthington filed complaints 
with OFCCP alleging that Commonwealth did not employ them because they 
were handicapped. P-37, 38. OFCCP investigators examined Commonwealth's 
hiring policies and asked if there were other job applicants who were 
rejected during the same general time period for failure to pass the 
pre-employment physical examination. Commonwealth provided a list which 
included Robert Etnire, Thomas Marshall, Wilda Matthis, William 
Shelton, Kenneth Sherrard, and William Zellers. R.D. and O. at 3.
    Commonwealth suspended Gray's application pending surgical 
correction of a hearing loss. P-3, 5. Complainant Worthington was blind 
in the left eye, had sixty percent hearing loss in the left ear and an 
eighteen percent permanent back disability. P-7. Commonwealth rejected 
his application\2\ because he was too much of a safety risk in view of 
his multiple impairments. Transcript (T.) 296, 918. The applications of 
Matthis and Sherrard were rejected because of scoliosis. P-3; T. at 
539. Commonwealth rejected Etnire's application\3\ because of 
degenerative changes in the lumbar spine, P-18, and Zeller's 
application because of spondylolisthesis. T. 637. Marshall's 
application was suspended until he had a hernia surgically corrected. 
T. 613, 814.
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    \2\Worthington was thereafter hired but later resigned his 
position. R.D. and O. at 4
    \3\Etnire passed a physical examination the following year, was 
hired, and was working for Commonwealth at the time of the hearing. 
T. at 363, 373, 377, 890.
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    The ALJ concluded that OFCCP could not seek individual relief on 
behalf of Complainants Etnire, Marshall, Matthis, Sherrard and Zellers 
because none of them filed a complaint. R.D. and O. at 5-11. Assuming 
that OFCCP had met its burden of establishing that Complainant 
Worthington was a handicapped individual, the ALJ noted that he had 
accepted employment with Commonwealth following his initial rejection 
and thereafter voluntarily terminated his employment. The ALJ concluded 
that an order to reemploy Worthington would be inappropriate and there 
was, therefore, no need to consider if Worthington would be entitled to 
retroactive seniority. Since OFCCP was not seeking back pay for 
Worthington, the ALJ decided that OFCCP had failed to state a claim 
upon which individual relief could be granted in his behalf. Id. at 12.
    As to Complainant Gray, who had a hearing loss, the ALJ found that 
he was not substantially limited in his employment opportunities 
because Commonwealth suspended only one opportunity. Moreover, the ALJ 
concluded that Congress did not intend to include correctable 
impairments, such as Gray's hearing loss, in the definition of 
``handicapped individual.'' Finally, the ALJ found Commonwealth did not 
regard Gray as handicapped in that it would have reconsidered him for 
employment if he had his hearing loss surgically corrected. The ALJ 
concluded that OFCCP had failed to prove that Gray was handicapped and 
therefore could not seek individual relief in his behalf. Id. at 12-15.
    In addition to individual relief, the ALJ noted that OFCCP sought a 
cease and desist order and debarment of Commonwealth for violation of 
its affirmative action duties. He stated that the merits of the 
contentions relating to five Complainants who did not file complaints 
could be considered as evidence of a failure to establish an effective 
affirmative action program. Because Complainant Marshall's hernia was 
correctable, the ALJ found that he was not handicapped and there was no 
duty of affirmative action owned to him. Concerning Complainants 
Matthis, Sherrard and Zellers, the ALJ noted that they had back 
impairments and, given the contraindications for heavy manual labor 
positions for these individuals, they are not qualified for the jobs 
for which they applied. As to Complainant Etnire, who was rejected in 
1980 because his x-ray showed a back condition and hired in 1981 after 
passing a subsequent physical examination, the ALJ stated that at best 
the evidence shows a mistaken, but apparently good faith belief that he 
was not qualified for employment in 1980. Id. at 15-17.
    Based on the record as a whole, the ALJ found that the evidence was 
insufficient to establish a violation of Commonwealth's affirmative 
action duties. In view of the foregoing, he recommended that OFCCP's 
complaint be dismissed in its entirety. Id., at 17.

Discussion

I. Conciliation Efforts
    Although the ALJ did not reach this issue because he recommended 
dismissal of other grounds, R.D. and O. at n.2, Commonwealth argues 
that, if the issue is considered, the complaint should be dismissed for 
OFCCP's failure to conciliate. Commonwealth's Response to OFCCP's 
Exceptions (Com. Resp.) at 19. While conceding that there were several 
conferences and negotiations, Commonwealth alleges that of OFCCP 
generally failed to communicate any offers of settlement to any of the 
complainants as required by its own Federal Contract Compliance Manual. 
Com. Resp. at 20-21. The pertinent section at the time of this action 
provided the ``[g]enerally, the complainant should not be present 
during the conciliation sessions. However, the EOS [Equal Oppportunity 
Specialist] should keep the complainant informed of the progress, in 
order to gather further input and to discuss proposed settlements.'' 
Ch. 6-120.5.
    Commonwealth contends that this section places OFCCP in a position 
similar to that of a lawyer who represents his client. Com. Resp. at 
21. The first part of the quoted language, however, belies that 
assertion as it provides the complainant shall not be present, a clear 
indication that the complainant is a not a party to the action and need 
not be consulted on settlement matters in the same manner as a client. 
Rather, the Manual provision is more properly viewed as providing 
guidance to EOS concerning how to facilitate the conciliation process. 
As such it confers no rights upon parties to an action under the Act. 
Cf. OFCCP v. National City Bank of Cleveland. 30 Fair Empl. Prac. Cas. 
[BNA] 6, 9 (Sec'y Final Dec. and Order Sept. 9, 1982) (OFCCP vindicates 
government interest in terms of contract but does not represent 
individual complainants or class members). In any event, there is no 
basis for concluding that the Compliance Manual confers rights upon a 
Section 503 defendant which could be raised as defense to a Section 503 
complaint.
    Commonwealth also alleges that it was never advised that the 
conciliation process had reached an impasse except with respect to 
Complainant Gray and further that OFCCP never explained how the 
rejection for employment of Complainants Etnire, Marshall, Matthis, 
Sherrard and Zellers violated Section 503. Id. at 23-26. Although, as 
Commonwealth argues, the letter notifying Commonwealth that the 
complaint was being forwarded for enforcement refers only to 
Complainant Gray, Defendant's Exhibit (D)-3, Commonwealth was aware 
that OFCCP was seeking relief from the other similarly situated 
individuals in conjunction with Gray's complaint. In its response to 
the Gray complaint, Commonwealth questioned the connection between the 
Gray case and the other cases, but nevertheless offered employment 
opportunities to the other individuals as part of a settlement. See D-
5. There is no evidence that a settlement had been reached as to them. 
Accordingly, it should have known that the enforcement action would 
include individuals as well as Gray. As for the alleged failure to 
explain the violations relative to the other individuals, Commonwealth 
could have inquiried about the nature of the violations during the 
conciliation process. For all of the foregoing reasons, I conclude that 
OFCCP properly discharged its duty to conciliate under 41 CFR 60-
741.26(g)(2).
II. Jurisdiction to Consider Alleged Discrimination Against Individuals 
Who Did Not File a Complaint
    OFCCP, while arguing that it may seek individual relief even if no 
complaint has been filed, see OFCCP's Exceptions at 6-15, contends in 
the alternative that it may seek relief, during a complaint 
investigation, on behalf of individuals who did not file a complaint. 
Id. at 15-20. While both Section 503(b) of the Act and the implementing 
regulation, 41 CFR 60-741.26, provide that an individual may file a 
complaint alleging handicap discrimination, neither the Assistant 
Secretary for Employment Standards nor the courts has addressed whether 
a complaint must be filed for each individual for whom OFCCP seeks 
relief.
    Under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 
Sec. 2000e-5 (1988), which requires that a charge by filed before the 
Equal Employment Opportunity Commission can take enforcement action, it 
has been held that the purpose of the charge is to trigger the 
investigatory and conciliatory procedures of the EEOC. EEOC v. General 
Electric Co., 532 F.2d 359, 364 (4th Cir. 1976) (charge provides EEOC 
with jurisdictional springboard to investigate and investigation may 
disclose other illegal practices which provide basis for reasonable 
cause determination). In this setting it is nonsensical to require each 
of the plaintiffs to file individual administrative charges with EEOC, 
even though no class action has been filed. Allen v. Amalgamated 
Transit Union Local 788, 554 F.2d 876, 882-83 (8th Cir.), cert. denied, 
434 U.S. 891 (1977). Similarly, under the National Labor Relations Act, 
the purpose of a charge is to set a Board inquiry in motion, and acts 
not specifically mentioned in the charge may be investigated and 
subject to enforcement if they are sufficiently related to the specific 
acts alleged. See N.L.R.B. v. Central Power & Light Co., 425 F.2d 1318, 
1320 (5th Cir. 1970). Cf. United States Dept. of Labor v. Honeywell, 
Inc., 77-OFCCP-3, Sec'y Dec. and Order June 2, 1993, slip op. at 16 
(complaint may include discrimination like or reasonably related to 
original charges).
    The Rehabilitation Act and regulations promulgated under it are to 
be interpreted broadly. Gilbert v. Frank, 949 F.2d 637, 641 (2d Cir. 
1991). In view of the foregoing, I conclude that, similar to Title VII 
and the National Labor Relations Act, once a complaint is filed, OFCCP 
may seek relief on behalf of individuals found to have been subject to 
handicap discrimination even if they have not filed a complaint.\4\
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    \4\In light of this conclusion, I need not address the 
contention that no complaint is necessary to confer jurisdiction on 
OFCCP to investigate and take enforcement action on behalf of 
individuals. I note, however, that at least one court, citing 41 CFR 
60-741.25, has stated that OFCCP is charged with conducting periodic 
reviews to assure that government contractors have complied with 
their non-discrimination and affirmative action obligations. Board 
of Governors of the University of North Carolina v. United States 
Department of Labor, 917 F.2d 812, 815 (4th Cir. 1990), cert. 
denied, 111 S. Ct. 2013 (1991).
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III. Individual Discrimination Claims
    In an individual discrimination case under Section 503, the 
plaintiff has the burden of establishing a prima facie case by showing 
that the complainant was a handicapped individual who was qualified for 
the job, applied for the job, and was rejected. Office of Federal 
Contract Compliance Programs v. United Parcel Service, Inc., Case No. 
87-OFC-17, Dep. Ass't. Sec. Dec., Nov. 22, 1991, slip op. at 8. Actual 
ability to perform the job is the only test for determining if an 
individual is qualified. The Department of Labor, OFCCP v. Texas 
Industries, Inc., Case No. 80-OFCCP-28, Ass't Sec. Dec., June 7, 1988, 
slip op. at 14. In determining if a handicapped individual is qualified 
to do a job the employer must gather all relevant information regarding 
work history and medical history. Mantolete v. Bolger, 767 F.2d 1416, 
1423 (9th Cir. 1985);\5\ Office of Federal Contract Compliance Programs 
v. Washington Metropolitan Area Transit Authority, Case No. 84-OFC-8, 
Acting Ass't Sec. Dec., Mar. 30, 1989, slip op. at 24 (WMATA).
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    \5\Commonwealth argues that Mantolete is not valid precedent in 
this case because it is a Section 501 case which involves stringent 
information gathering requirements for federal employers, the case 
did not render judgment for the plaintiff, the applicable 
regulations are more stringent with respect to accommodation, and 
the good faith defense rejected in Mantolete is recognized under 
Section 504. Com. Resp. at 66-67. These allegations are rejected. 
That the case did not render judgment for the plaintiff is 
insignificant if the case is cited for a legal proposition 
established therein. Although there are differences among Sections 
501, 503 and 504, there are common elements in each section which 
are intended to be interpreted uniformly. See Mantolete, 767 F.2d at 
1421 (no reason that Section 501 definition of qualified handicapped 
individual should differ from Section 504); Texas Industries, slip 
op. at 29 (Congress intended that Sections 503 and 504 be uniformly 
administered). The good faith defense has been effectively rejected 
by the Third Circuit which held that the Rehabilitation Act is 
directed particularly at unintentional conduct. Nathanson v. Medical 
College of Pennsylvania, 926 F.2d 1368, 1384 (3d Cir. 1991). Cf. 
Albemarle Paper Co. v. Moody, C. 22 U.S. 405, (1975) (good faith no 
defense to back pay award for violation of Title VII).
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    While risk of injury may, in some cases, justify the refusal to 
hire an otherwise qualified handicapped person, mere elevated risk of 
injury, without more, is not sufficient.\6\ Mantolete, 767 F.2d at 
1422; WMATA, slip. op. at 23. The issue is whether hiring the 
complainant posed a reasonable probability of substantial harm. 
Mantolete, 767 F.2d at 1422; WMATA, slip op. at 23. Further, where a 
contractor applies physical or mental job qualification requirements 
which tend to screen out qualified handicapped individuals, the job 
requirements must be job related and consistent with business necessity 
and safe performance of the job. 41 CFR 60-741.6(c)(2). Office of 
Federal Contract Compliance Programs v. PPG Industries, Inc., Case No. 
86-OFC-9, Dep'y. Ass't Sec. Dec., Jan. 9, 1989, slip op. at 14. The 
contractor has the burden of demonstrating compliance with this 
standard. PPG Industries, slip op. at 14.
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    \6\Any qualification based on risk of future injury must be 
examined with special care since almost all handicapped persons are 
at greater risk from work-related injuries. Bentivegna v. United 
States Department of Labor, 694 F.2d 619, 622 (9th Cir. 1982).
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    A. Gregory Gray. The ALJ held that Complainant Gray was not covered 
by the Act because ``Congress did not intend to include correctable and 
temporary impairments in the definition of `handicapped individual' 
[but] intended to apply the handicap definition to more severe or 
permanent impairments.'' R.D. and O. at 14-15. The ALJ also held that 
Mr. Gray's condition did not significantly limit his employment 
opportunities, indicating that he was not ``substantially limited'' 
within the Act's definition. OFCCP excepted to the exclusion of Mr. 
Gray from coverage under the Act on the grounds that correctable 
conditions are covered, and that substantial limitation in any major 
life activity, not limited to employment as the ALJ held, establishes 
coverage.
    Mr. Gray's physician described his condition as ``modified radical 
mastoidectomy of the right ear [with] [a] small pinpoint perforation of 
the right drum [and] some granular tissue of the anterior aspect of the 
drum.'' Exhibit 11 to Deposition of Gregory C. Gray. An audiological 
evaluation found ``[s]peech discrimination in [the right] ear is very 
good [although] [t]here is conductive loss [of hearing] in the right 
ear.'' Id. The doctor suggested that Mr. Gray ``is a candidate for 
middle ear exploration and possible ossicular chain reconstruction for 
restoration of some of the conductive loss,'' but noted that ``in view 
of the fact that he is wearing an aid in the right ear, this brings his 
hearing to essentially normal.'' Id.
    As the Acting Assistant Secretary pointed out in Office of Federal 
Contract Compliance Programs v. Washington Metro. Area Transit Auth., 
Case No. 84-OFC-8, Final Dec. and Remand Ord. Mar. 30, 1989, slip op. 
at 16, applying the ``substantially limited'' clause of the definition 
of handicapped individual requires fulfilling Congressional intent that 
the Act be broadly construed without allowing the definition to become 
so open ended that the Act becomes trivialized. Coverage of individuals 
with ``temporary'' or ``correctable'' conditions, therefore, requires 
difficult line drawing. There can be no doubt, for example, that an 
individual with cancer which is operable or treatable with radiation or 
chemotherapy nevertheless is covered by the Act. Cf. 45 CFR part 84, 
appendix A, section A-3. Similarly, an individual with a condition such 
as diabetes or epilepsy controllable with medication is a handicapped 
individual under section 503. See Office of Federal Contract Compliance 
Programs v. PPG Industries, Inc., Case No. 86-OFC-9, Sec'y. Dec. and 
Remand Order on Remedy Jan. 9, 1989, slip op. at 16. On the other hand, 
courts have hesitated to extend the Act to simple, temporary conditions 
or injuries which can reasonably be expected to limit an individual's 
activities only for a short period of time. See, e.g., Evans v. City of 
Dallas, 861 F.2d 846, 852-53 (5th Cir. 1988) (knee injury correctable 
by surgery not within scope of Act); Peagle v. Department of the 
Interior, 813 F. Supp. 61, 64 (D.D.C. 1993) (back strain and pain due 
to Degenerative Disc Syndrome treatable by simple bed rest not 
covered); Vissaraga v. Garrett, 1992 U.S. Dist. LEXIS 9164, at *13 
(N.D. Cal. June 16, 1992) (back strain and sprain not a handicap); 
Grimard v. Carlson, 567 F.2d 1171, 1174 (5th Cir. 1988) (fractured and 
dislocated ankle not a handicap).
    I agree with OFCCP that a Congressional committee report, cited by 
the ALJ, on a proposed amendment in 1979 to Title VII of the Civil 
Rights Act of 1964 that did not pass, carries little weight in 
discerning the intent of Congress five years earlier when it amended 
the Rehabilitation Act to include the current definition of handicapped 
individual. The legislative history of the recently enacted Americans 
With Disabilities Act, 42 U.S.C. 12101-12213 (Supp. II 1991) is more 
relevant here because Congress explicitly stated that ``[t]he 
definition of the term `disability' * * * is comparable to the 
definition of the term `individual with handicaps' in section 7(8)(B) 
of the Rehabilitation Act of 1973.'' H.R. Rep. No. 485 part 2, 101st 
Cong., 2d Sess. 50 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 332.\7\
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    \7\I recognize that the legislative history of the ADA was not 
yet in existence when the ALJ issued his recommended decision.
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    Congress used the specific example of an individual like Mr. Gray 
to illustrate application of the term ``substantially limits'' and to 
distinguish ``minor, trivial impairments'' from those that restrict 
``the conditions, manner, or duration under which [important life 
activities] can be performed in comparison to most people.'' The report 
explained further that ``[w]hether a person has a disability should be 
assessed without regard to the availability of mitigating measures, 
such as reasonable accommodations or auxiliary aids. For example, a 
person who is hard of hearing is substantially limited in the major 
life activity of hearing, even though the loss may be corrected through 
the use of a hearing aid.'' Id. at 52.
    In addition, I find no basis in the Act to permit a contractor to 
require an employee or applicant for employment to undergo a treatment, 
operation or drug regimen before being considered for employment or 
being entitled to other terms, conditions or privileges of employment. 
That decision is a private one to be made by each individual with a 
handicap in consultation with his or her physician and other health 
professionals.\8\ Indeed, Commonwealth has an obligation under the duty 
to make reasonable accommodation ``to permit an individual with a 
disability the opportunity to provide and utilize equipment, aids or 
services that an employer is not required to provide as a reasonable 
accommodation.'' 29 CFR part 1630, app., Sec. 1630.2(o) Reasonable 
Accommodation (1992). Of course, handicapped applicants or employees 
must be qualified, with reasonable accommodation, but a contractor must 
consider each handicapped individual as he finds him.
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    \8\I note that Dr. Logan reported that Mr. Gray ``is a candidate 
for middle ear exploration and possible ossicular chain 
reconstruction for restoration of some of the conductive loss.'' 
Gray Dep., Exh. 11. (Emphasis added). Mr. Gray would have to weigh 
the possibility of restoration of some of his hearing against the 
risks of surgery, a decision which is his alone to make.
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    For the same reason, I reject Commonwealth's contention that the 
reference in the regulations to the American Medical Association Guides 
to the Evaluation of Permanent Impairment, 41 CFR 60-741.7(d) (1990), 
requires a handicapped individual to undergo any particular treatment 
or surgical operation. The Guides define permanent impairment as an 
abnormality or loss after maximum medical rehabilitation has been 
achieved. But it is implicit that the appropriate rehabilitation 
regimen has been undertaken voluntarily by the patient with the advice 
of his physician.
    The record is clear that Mr. Gray was qualified for the dross 
handler position for which Commonwealth considered him. He had worked 
at several laboring jobs and Commonwealth rejected him solely because 
of his hearing condition. P-2, 5; R.D. and O. at 4.
    Commonwealth contend that its exclusion of Mr. Gray from 
consideration for employment was job related and consistent with 
business necessity\9\ and safe performance of the job. Com. Resp. at 
45. I reject that contention because, at the time of the hearing, 
Commonwealth employed two other individuals with uncorrectable hearing 
losses. D-13. Inasmuch as there is no apparent reason for 
differentiating correctable and uncorrectable hearing loss with respect 
to job relatedness or safety concerns, I conclude that Commonwealth 
violated section 503 of the At when it refused to hire Gray unless he 
had his hearing loss surgically corrected.
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    \9\One of the stated reasons is Commonwealth's possible future 
medical liability if the individual elects to correct the condition. 
Com. Resp. at 45. Increased costs to an employer, however, is not a 
valid reason for rejecting a handicapped applicant. OFCCP v. E. E. 
Black, Ltd., 19 Fair Empl. Prac. Cas. (BNA) 1625 (Ass't Sec'y. Dec. 
1979) modified on other grounds, E. E. Black, Ltd. v. Marshall 497 
F. Supp. 1088 (D. Hawaii 1980). See also City of Los Angeles v. 
Manhart, 435 U.S. 702 (1988) (practice of requiring women to make 
greater contribution to pension fund than men because they live 
longer, and therefore generally receive greater pension benefits, is 
discriminatory under Title VII); 29 CFR part 1630, app., 1630.2(m) 
Qualified Individual with a disability (``The determination of 
whether an individual with a disability is qualified * * * should 
not be based on speculation that the employee * * * may cause 
increased health insurance premiums * * *.'')
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    B. David Worthington. OFCCP contends that there is no indication 
that its case in regard to Complainant Worthington was settled when he 
was hired by Commonwealth or that Mr. Worthington intended to terminate 
his employment voluntarily in December 1981. OFCCP therefore argues 
that it may seek retroactive seniority and back pay on behalf of 
Worthington. Exceptions at 43. The record establishes that OFCCP was 
not seeking back pay for Mr. Worthington, and was not entitled to 
receive back pay on his behalf because Worthington was earning more 
elsewhere than he could have at Commonwealth. T. at 683; P-36. See R.D. 
and O. at 12. Inasmuch as OFCCP is not asking that Mr. Worthington be 
reinstated, the request for retroactive seniority is moot. Irrespective 
of whether the case has been settled, OFCCP has failed, as the AJL 
found, to state a claim upon which relief may be granted. I therefore 
accept the ALJ's recommendation that the complaint be dismissed as to 
Complainant Worthington.
    C. Wilda Matthis. The ALJ found there was no question that 
Complainant Matthis had moderate scoliosis, R.D. and O. at 16, and 
Commonwealth does not dispute that she was handicapped. Based on the 
contraindication for heavy manual labor, however, the ALJ found that 
she was not qualified for the manual labor position for which she 
applied. Id. at 5, 16. The test of whether a handicapped individual is 
qualified is if the individual possesses the ability to perform the 
job. Texas Industries, slip op. at 14. The record establishes that Ms. 
Matthis worked as an automotive parts dispatcher at Sears where she 
inspected cars, pulled wheels, and carried pipes, mufflers and brakes. 
P-2. Inasmuch as this constitutes manual labor and there is no other 
evidence that she could not perform manual labor, I find that she was 
qualified to work in a manual labor position at Commonwealth. Since she 
was rejected for employment because of her scoliosis, OFCCP established 
a prima facie case of handicap discrimination as to Ms. Matthis.
    Commonwealth contends that its job qualification requirements, 
which is this case caused Ms. Matthis to be rejected for employment in 
part because of radiographic evidence of a back abnormality, are job 
related and consistent with business necessity and safe job 
performance. Com. Resp. at 69-76. The job qualifications as applied 
essentially screened out Ms. Matthis because of an increased risk of 
injury. As such, they must be examined with special care. Bentivegna, 
694 F.2d at 622. The evidence in this case fails to justify refusing 
employment to Ms. Matthis because it does not establish a reasonable 
probability of substantial harm, Mantolete, 767 F.2d at 1422, or even 
predict that any injury would ever happen if she were employed in a 
manual labor position. Texas Industries, slip op. at 21. An orthopedist 
reported Ms. Mathis had ``asymptomatic idiopathic scoliosis [which 
would not] limit [her] activities.'' p. 21. See T. at 447, 975; PX 3; 
DX 23. I find that Commonwealth violated Section 503 by refusing to 
hire Complainant Matthis.
    D. Kenneth Sherrard. The ALJ noted that Complainant Sherrard had 
severe scoliosis, R.D. and O. at 16, and Commonwealth concedes that he 
is obviously handicapped. Com. Resp. at 61. As with Ms. Matthis, and 
ALJ found that Mr. Sherrard was not qualified for employment in 
mechanical maintenance which involves heavy manual labor. R.D. and O. 
at 5, 16. At the time of his application, Sherrard had worked for ten 
years as a maintenance mechanic, P-2, and an orthopedist recommended 
that he could continue working in that capacity. P. 17. I find that Mr. 
Sherrard was qualified to perform the job for which he applied at 
Commonwealth and, because he was rejected for employment based on his 
scoliosis, OFCCP made a prima facie case of handicap discrimination as 
to him.
    Commonwealth's job qualifications also screened out Mr. Sherrard 
because of an increased risk of injury. The evidence as to Mr. Sherrard 
does not support refusing him employment because all it states it that 
he should avoid heavy lifting, T. at 984, and it does not establish a 
probability of substantial harm or predict if any injury will occur. I 
therefore conclude that Commonwealth violated Section 503 by refusing 
to hire Mr. Sherrard.
    E. Robert Etnire. The ALJ made no finding regarding whether 
Complainant Etnire was handicapped, but it is clear that Commonwealth 
regarded him as handicapped because he was foreclosed generally from 
positions involving manual labor from the time of his initial 
application for employment, April 29, 1980, until he was hired by 
Commonwealth on June 29, 1981. Forrisi, 794 F.2d at 935. Etnire's 
application for employment discloses that he worked in mechanical 
maintenance, the same position for which he applied at Commonwealth, 
from 1970 to 1979, at which time the plant where he was working closed. 
PX 2. I find that he was therefore qualified to work in mechanical 
maintenance at Commonwealth and, because his application was rejected 
due to degenerative changes in the lumbar spine, OFCCP has made a prima 
facie case of handicap discrimination as to Mr. Etnire.
    The ALJ stated that, at best, the evidence shows a mistaken but 
good faith belief that Mr. Etnire was not qualified for employment in 
1980. R.D. and O at 17. Good faith, however, is not a defense, as the 
Act is directed particularly at unintentional conduct. Nathanson, 926 
F.2d at 1384. In addition, the contractor has the obligation to 
``gather all relevant information regarding the applicant's work 
history and medical history and independently assess both the 
probability and severity of potential injury.'' PPG Industries., slip 
op. at 17 quoting Mantolete v. Bolger, 767 F.2d at 1423. Accordingly, I 
find that Commonwealth violated Section 503 by failing to hire 
Complainant Etnire in 1980.
    F. William Zellers. Commonwealth contends that Complainant Zellers 
is not handicapped because he did not regard himself as handicapped and 
because his spondylolisthesis did not substantially limit any major 
life activities, particularly in view of his continued self-employment 
in the construction business.\10\ Comm. Resp. at 63-64. Where, as here, 
an employer regards an individual as being foreclosed generally from 
heavy manual labor positions, that individual is considered 
handicapped. Forrisi, 794 F.2d at 935. E.E. Black, 497 F. Supp. at 
1097-1102; Texas Industries, slip op. at 8. The record in this case 
establishes that Mr. Zellers worked in the supervision and maintenance 
of construction equipment from 1953 until the time of his application 
with Commonwealth, P-2, and that this was considered heavy labor. T. at 
627. Mr. Zellers was therefore, contrary to the ALJ's conclusion, R.D. 
and O. at 16, qualified to work in electrical or mechanical maintenance 
at Commonwealth, see Texas Industries, slip op at 14, and, inasmuch as 
his application was rejected because of his spondylolisthesis, OFCCP 
has established a prima facie case as to Mr. Zellers.
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    \10\Commonwealth contends that OFCCP cannot seek relief on 
behalf of Zellers because OFCCP determined that his complaint was 
not timely and that determination became final when Zellers did not 
seek further agency review pursuant to 41 CFR 60-741.26 (g)(1). 
Comm. Resp. at 63. I need not address this argument because, for the 
reasons discussed above, once a complaint is received OFCCP has 
jurisdiction to seek individual relief for all violations discovered 
in its investigation.
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    As with some of the other complainants, Commonwealth's job 
qualifications screened out Zellers based on an increased risk of 
injury. The evidence does not justify refusing him employment because 
all it states is that he is at a higher risk for disabling back pains, 
T. at 440, but does not show a probability of substantial harm or 
predict if an injury will ever occur. An orthopedist reported that Mr. 
Zellers had ``asymptomatic spondylolisthesis [with] no evidence of a 
herniated disc or spinal stenosis. Considering his previous work 
history and lack of any previous symptoms [there was] no reason to 
limit [his] function.'' p. 21. I find that Commonwealth violated 
Section 503 when it refused to hire Complaint Zellers.
    G. Thomas Marshall. The ALJ concluded that Complainant Marshall was 
not a handicapped individual because his hernia was temporary and 
correctable. R.D. and O. at 16. For the reasons discussed in A above, 
I reject this conclusion and find that Mr. Marshall was handicapped 
because Commonwealth regarded him as being foreclosed generally from 
employment with them. Forrisi, 794 F.2d at 935. Mr. Marshall's 
employment application disclosed that he worked as chief electrician 
for two years prior to applying at Commonwealth. PX 2. I therefore find 
that he was qualified to work at Commonwealth in an electrical 
maintenance position. Because Mr. Marshall was denied employment until 
he had surgery, I conclude that OFCCP has made a prima facie case as to 
him.
    Commonwealth notes that Mr. Marshall's hernia was discovered on 
July 18, 1980, and that between then and September 1980, Mr. Marshall 
saw Dr. Schell, had the surgery and visited Commonwealth to seek 
reinstatement of his application. Comm. Resp. at 52. From this, 
Commonwealth argues that ``it is obvious that Dr. Schell thought Mr. 
Marshall needed survery immediately'' and it was therefore entitled to 
exclude Mr. Marshall because the risk of future injury was imminent. 
id.
    The difficulty with this argument is that there is no evidentiary 
support for the premise. Given Commonwealth's policy concerning 
correctable conditions, the more likely inference is that Mr. Marshall 
scheduled the surgery early so that he could have his employment 
application reinstated as soon as possible. See T. 612. The most that 
can be determined based on the record is that Mr. Marshall's hernia 
presented an elevated risk of injury at some point in the future. Mr. 
Marshall was working as Chief Electrician at another company when he 
applied for work with Commonwealth. His job involved stooping, bending 
and lifting up to 80 pound weights, T. 592, but he was not aware that 
he had an inguinal hernia. T. 593. Because the hernia has characterized 
as ``early'', PX 3, no reasonable probability of substantial harm has 
been shown for employing Complainant Marshall at the time he applied 
and I therefore find that Commonwealth has violated Section 503 by 
failing to hire him.
IV. Individual Relief
    In addition to seeking offers to employment\11\ for those subjected 
to handicap discrimination, OFCCP requests back pay and retroactive 
seniority. Commonwealth argues that back pay is not authorized by the 
Act and regulations. While Section 501 authorizes back pay by 
incorporating that remedy from Title VII of the Civil Rights Act of 
1964, Commonwealth notes that Section 504 incorporates the remedy from 
Title VI which does not have a provision relating to back pay. Because 
Section 503 does not provide for back pay awards, Commonwealth 
maintains that, as under Section 504, a back pay remedy is not 
available. Com. Resp., at 76-77.
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    \11\The Assistant Secretary has held that ordering employment of 
a job applicant is an appropriate remedy for a Section 503 
violation. Office of Federal Contract Compliance Programs v. 
Washington Metro. Area Transit Auth., Case No. 84-OFC-8, Ass't Sec. 
Dec., Nov. 17, 1989, slip op. at 4, rev'd on other grounds sub nom 
Washington Metro. Area Transit Auth. v. DeArment, 55 Empl. Prac. 
Dec. [CCH]  40,507 (D.D.C. 1991).
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    The Supreme Court, however, has held that Section 504 authorizes a 
plaintiff to bring an equitable action for back pay, because, although 
not specially listed therein, back pay is an available remedy under 
Title VI. Consolidated Rail Corp. V. Darrone, 465 U.S. 624, 630-31 
(1984). It is therefore apparent that the absence of any mention of 
back pay in Section 503 does not preclude its availability as a remedy 
for violations. The Assistant Secretary has so held, finding that back 
pay is within the directive of Section 503(b) to ``take such action 
thereon as the facts and circumstances warrant * * *'' Texas 
Industries, slip op. at 31. See also Office of Federal Contract 
Compliance Programs v. Exide Corporation, Case No. 84-OFC-11, Acting 
Ass't Sec. Dec., Apr. 30, 1991, slip op. at 17. In addition, the 
Secretary has recently held that back pay may be ordered under the 
parallel contact compliance program, Executive Order No. 11,246, 
although there is no explicit reference to back pay in the Executive 
Order. United States Dep't of Labor v. Honeywell, Inc., Sec'y Dec. and 
Order June 2, 1993, slip op. at 26-34.
    Commonwealth also contends that there is no authority for awarding 
retroactive seniority because the Section 503 remedies are tailored for 
compliance with affirmative action obligations rather than for private 
remedies and the absence of a private right of action under Section 503 
means there is no private remedy available. Com. Resp. at 80-81. I 
disagree. The cases cited by Commonwealth, while stating that there is 
no private right of action under Section 503, nowhere hold that OFCCP 
cannot seek a remedy on behalf of a complainant.\12\ The Assistant 
Secretary has consistently held that retroactive seniority is an 
appropriate remedy for a Section 503 violation.\13\ See, e.g., WMATA, 
slip op. at 29; PPG Industries, slip op. at 35.
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    \12\These cases generally held that because Section 503(b) 
authorizes the Secretary to take action on complaints, relief is 
available to complainants and a private right of action would be 
incongruous.
    \13\This is consistent with federal case law which provides that 
in employment discrimination cases the remedy should be designed, as 
nearly as possible, to make the victim whole. See Albemorle Paper 
Co. v. Moody, 422, 418-19 (1975). The existence of a right, in this 
case not be subjected to handicap discrimination, implies the 
existence of all necessary and appropriate remedies. See Sullivan v. 
Little Hunting Park, Inc. 396 U.S. 229, 238-39 (1969), SEe Johnson 
V. Railway Express Agency, 421 U.S. 454 (1975); Jones v. Alfred H. 
Mayer Co., 392 U.S. 409 (1968); Mizell v. North Broward Hospital 
Dist., 427 F.2d 468 (5th Cir. 1970).
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    Commonwealth nevertheless argues that retroactive seniority should 
not be awarded in this case because the union was not jointed as a 
party. Com. Resp. at 81. See EEOC v. Safeway Stores, Inc., 714 F.2d 
567, 577 (5th Cir. 1983), cert. denied, 467 U.S. 1204 (1984). While 
Safeway holds that a union must have the opportunity to participate in 
the proceedings where the relief ordered violates the seniority 
provisions of a collective bargaining agreement, 714 F.2d at 577, 579, 
that decision, in my view, goes beyond the requirements of applicable 
Supreme Court precedent.
    InW.R. Grace & Co. v. Local Union 759, United Rubber Workers of 
America, 461 U.S. 757, 771 (1983), the Court held, in a Title VII case, 
that by entering into a conciliation agreement, the EEOC and the 
employer cannot alter a collective bargaining agreement without the 
union's consent. In that case, the conciliation agreement implemented a 
quota system under which the percentage of women would not be reduced 
during layoffs notwithstanding the fact that some women would be 
retained while having less seniority than their male counterparts. The 
Court held that absent a judicial determination the EEOC and an 
employer cannot alter a collective bargaining agreement without the 
union's consent. 461 U.S. at 770-72.
    In Safeway, the EEOC attempted to distinguish W.R. Grace by arguing 
that the conciliation agreement in Safeway did not result in the 
``wholesale destruction'' of a collective bargaining agreement. Rather, 
the seniority system would remain intact with discriminatees being 
afforded their rightful place, the place they would have occupied but 
for the discrimination. The court rejected that argument, stating that 
``we cannot agree that a difference in the degree of conflict with 
collective bargaining structure, beyond de minimis, [sic] can affect 
our ultimate decision.'' 714 F.2d at 578.
    Conciliation agreements, which are a form of contract and which 
purport to amend or alter another contract, the collective bargaining 
agreement, without the consent of one party, the union, must be 
distinguished from the retroactive award of seniority after an 
adjudication of discrimination. Holsey v. Armour & Co., 743 F.2d 199, 
218 (4th Cir. 1984), cert. denied, 470 U.S. 1028 (1985). There is a 
presumption in favor of the rightful place seniority remedy. Franks v. 
Bowman Transportation Co., 424 U.S. 747, 779 n. 41 (1976). E.E.O.C. v. 
Pneumatics, Inc., 779 F.2d 21, 23 (8th Cir. 1985). Indeed, the Supreme 
Court explicitly declined to decide in W.R. Grace whether an 
arbitration award for violation of the seniority provisions of a 
collective bargaining agreement ``could be enforced in the face of a 
valid judicial alteration of seniority provisions pursuant to Franks v. 
Bowman [] to provide relief to discriminatees under Title VII or other 
law.'' 461 U.S. at 767 n.9. I conclude have the authority under Section 
503, after a finding of discrimination, to award retroactive seniority 
without participation of the union in the proceedings.
    Averring that the record is not complete enough to calculate the 
relief due complainants, OFCCP requests a remand to the ALJ for a 
determination of the appropriate relief. Exceptions at 68. In 
accordance with this opinion, Commonwealth is ordered to make offers of 
employment, in positions comparable to the ones for which they applied, 
to Complainants Gregory Gray, Wilda Matthis, Kenneth Sherrard, William 
Zellers and Thomas Marshall. In addition, seniority must be awarded 
retroactive to the date complainants would have been hired but for the 
illegal discrimination. Complainant Robert Etnire is to be granted 
additional seniority from the date he would have been hired in 1980 
until his actual date of hire, June 29, 1981. The case is remanded to 
the ALJ to compute the amount of back pay due these complainants, 
taking into account the seniority they would have accrued if hired.

Conclusions and Order

    For the foregoing reasons, I hold that Commonwealth violated 
Section 503 of the Act when it refused to hired Complainants Gray, 
Matthis, Sherrard, Zellers and Marshall and by declining to hire 
Complainant Etnire when he first applied.\14\ Commonwealth is ordered 
to give the complainants, with the exception of Etnire, offers of 
employment within 60 days of receipt of this order. All complainants 
are to be awarded appropriate seniority and all other applicable 
benefits in accordance with this opinion. The case is remanded to the 
ALJ for calculation of back pay due complainants and submission of a 
supplemental recommended decision.
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    \14\OFCCP also alleges that Commonwealth violated the 
affirmative action clause by discrimination against complaints. 
Exceptions at 67. Since I have concluded that Commonwealth has 
discriminated against six of the complainants (potential 
discrimination against Complainant David Worthington was not 
addressed because no relief was available), it has violated the 
affirmative action clause. 41 CFR 60-741.4(a).
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    If Defendant Commonwealth Aluminum fails to comply with any 
provision of this order within the specified time periods, Defendant, 
its officers, subsidiaries, and successors shall be ineligible for the 
award of any government contracts or subcontracts, and shall be 
ineligible for extensions or other modifications of any existing 
Government contracts or subcontracts, until Defendant has satisfied the 
Assistant Secretary of Labor that it is in compliance with the 
provisions of Section 503 of the Rehabilitation Act of 1973 and the 
regulations and orders issued thereunder which have been found to have 
been violated in this case.
    So Ordered.

Washington, DC.
John R. Fraser,
Acting Assistant Secretary for Employment Standards.

Certificate of Service

Case Name: Office of Federal Contract Compliance Programs, United 
States Department of Labor v. Commonwealth Aluminum
Case No.: 82-OFC-6
Document: Final Decision and Order

    A copy of the above-referenced document was sent to the 
following persons on February 10, 1994.
Tisa McRae.

Certified Mail

Ralph York, Associate Regional Solicitor, 280 U.S. Courthouse, 801 
Broadway, Nashville, TN 37203
Carole Fernandez, Esq., Office of the Solicitor, 280 U.S. 
Courthouse, 801 Broadway, Nashville, TN 37203
Frank Stainback, Esq., Holbrook, Gary, Wible & Sullivan, 100 St. Ann 
Building, Owensboro, KY 42302-0727
C.T. Corporation System, Kentucky Home Life Building, 239 S. Fifth 
Street, Louisville, KY 40202
Lorence L. Kessler, Esq., McGuiness & Williams, Suite 1200, 1015 
15th Street, NW., Washington, DC 20005

Hand Delivered

Richard L. Gilman, Esq., Senior Trial Attorney, Civil Rights 
Division, U.S. Department of Labor, 200 Constitution Ave., NW., Room 
N-2464, Washington, DC 20210

Regular Mail

Hon. David J. Roketenetz, Administrative Law Judge, Office of 
Administrative Law Judge, 304A U.S. Post Office and Courthouse, 
Cincinnati, Ohio 45202
Hon. Nahum Litt, Chief Administrative Law Judge, Office of 
Administrative Law Judges, 800 K Street, NW., Suite 400, Washington, 
DC 20001-8002

[FR Doc. 94-10279 Filed 4-28-94; 8:45 am]
BILLING CODE 4510-27-M