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