United States Department of Labor
Office of Administrative Law Judges Law Library

NOTICE: THIS INDEX WAS PREPARED BY THE CIVIL RIGHTS DIVISION, OFFICE OF THE SOLICITOR, U.S. DEPARTMENT OF LABOR, FOR INTERNAL USE. IT IS NOT AN OFFICIAL INTERPRETATION OF THE CASES, AND WAS LAST REVISED IN NOVEMBER, 1996.

Return to Table of Topics, 503 Index

Motion for summary judgment denied because of genuine issues of material fact (i.e., whether complainant was a qualified handicapped person and whether accommodating him would have been an unreasonable burden). OFCCP v. Graves Truck Lines, Inc., 80-OFCCP-2, ALJ Order Denying Motion for Summary Judgment, April 16, 1980, dismissed, ALJ Order of Dismissal, November 4, 1981.

Summary judgment granted for the defendant because action complained of occurred prior to effective date of Act. OFCCP v. Burlington Northern Railroad, 80-OFCCP-6, ALJ Order Granting Defendant's Motion for Summary Judgment and Dismissing Complaint, June 12, 1980, Special Assistant to the Assistant Secretary for Employment Standards Final Decision and Order of Dismissal, December 11, 1991.

Motion to Dismiss granted for the defendant because the complainant and the facility he worked at were not being used to carry out the Federal contract. OFCCP v. Western Electric Co., 80-OFCCP-29, ALJ Order Granting Defendant's Motion to Dismiss March 4, 1981, rev'd and remanded, Deputy Under Secretary for Employment Standards, May 2, 1985.

Complaint against employer dismissed because the parties reached an agreement in the case. OFCCP v. K. Monkiewicz, Inc., 81-OFCCP-20, ALJ Final Dec. and Order, June 30, 1982, aff'd, Deputy Under Secretary for Employment Standards Final Decision and Order, September 14, 1982.

Motion for summary judgment is denied because there was a material fact in dispute as to whether the defendant is a covered Government contractor. OFCCP v. Burlington Northern Railroad, 81-OFCCP-21, ALJ Order Denying Defendant's Motion for Summary Judgment, February 2, 1982.

Defendant's motion to dismiss because two unions cannot be impleaded is denied because of failure to meet Rule 19(b). OFCCP v. Burlington Northern Railroad, 81-OFCCP-21, ALJ Dec. on Motions and Prehearing Order, February 8, 1984.

OFCCP's and employer's motion for summary judgment denied because state statute of limitation does not apply to Section 503 actions and because of genuine issues of material fact (i.e., the timeliness of the complaint, whether the complaint is handicapped and the remedies available to complainant). OFCCP v. Washington Metropolitan Area Transit Authorities, 84-OFC-8, ALJ Order Denying OFCCP's Motion to Compel Discovery and Denying Defendant's Motion for Summary Judgment, September 26, 1985, aff'd, Acting Assistant Secretary for Employment Standards Final Dec. and Remand Order, March 30, 1989, vacated on other grounds, WMATA v. DeArment, 55 EPD ¶40,507 (D.D.C. 1991).

For purposes of defending against summary judgment, OFCCP did not have the burden of proving that complainant's knee condition substantially limited his employment opportunities. OFCCP v. Cissell Manufacturing Co., 87-OFC-26, Assistant Secretary for Employment Standards Dec. and Order of Remand, December 5, 1989, slip op. at 7, ALJ Rec. Dec. and Order on Remand, May 22, 1992; Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appeal pending.

In a summary judgment proceeding, the nonmoving party, in this case OFCCP, only had to "designate specific facts [by affidavit, depositions, interrogatories or admissions] showing that there is a genuine issue for trial," with respect to whether complainant's condition is substantially limited (citation omitted). Id.

There is a genuine issue of material fact with regard to whether the complainant was substantially limited in his ability to work because of his knee condition. Therefore, summary judgment was improper. Id. at 8.

In ruling on a motion to dismiss or for summary judgment based on the timeliness of an action a court must construe the pleadings, affidavits, and record in the light most favorable to plaintiff. OFCCP v. CSX Transportation, Inc., 88-OFC-24, ALJ Order Granting Motion to Dismiss, March 23, 1990, slip op. at 1; reversed and remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, October 13, 1994; case closed, January 17, 1996.

In order to prevail on a motion to dismiss or summary judgment motion, there must be an absence of conflicting inferences to be drawn from the subsidiary facts and the defendant must establish beyond a doubt that the plaintiff can prove no set of facts in support of the claim which would justify relief. Ibid.; reversed and remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, October 13, 1994; case closed, January 17, 1996.

Because contractor failed to include in its motion for summary judgment a Statement of Uncontested Facts as required by 41 CFR 60-30.23(d), the motion is defective and thus a hearing on the motion is unnecessary and the motion is denied. OFCCP v. Jefferson County Board of Education, 90-OFC-4, ALJ Order Denying Summary Judgment and Compelling Discovery, November 16, 1990, slip op. at 11-12; Consent Decree, May 7, 1991.

Contractor's motion to dismiss complaint to the extent that

it is based on an amended Notification of Results of Investigation is denied because OFCCP has inherent authority to reassess the results of an investigation based on advice of counsel. OFCCP v. Kapiolani Community College, University of Hawaii, 90-OFC-5, ALJ Order, February 6, 1991, slip op. at 1; Consent Decree, March 28, 1991.

Although the Rehabilitation Act is silent as to the preclusive effect of prior state administrative proceedings, the test for determining this issue is set forth in University of Tennessee v. Elliott, 478 U.S. 788 (1986). The test is: 1) did the state agency act in a judicial capacity; 2) did it resolve disputed issues of fact properly before it that the parties have had an adequate opportunity to litigate and 3) would its findings be given preclusive effect in the state's court? OFCCP v. Norfolk Southern Corporation, 89-OFC-31, ALJ Dec. and Order Granting Motion for Summary Judgment and Recommending Dismissal of Complaint, April 19, 1991, slip op. at 3; reversed, Assistant Secretary for Employment Standards Decision and Order of Remand, October 3, 1995.

ALJ finds that administrative proceeding before the Ohio Civil Rights Commission to be similar in all material respects, with regard to burdens of proof and to the course that the Department of Labor administrative proceeding would take if it went to hearing and a decision on its merits. Id. at 9; reversed, Assistant Secretary for Employment Standards Decision and Order of Remand, October 3, 1995.

ALJ finds that the complainant was adequately represented and the usual procedural safeguards to ensure him a full and fair hearing were in effect in administrative proceeding before the Ohio Civil Rights Commission. Ibid.; reversed, Assistant Secretary for Employment Standards Decision and Order of Remand, October 3, 1995.

ALJ finds that administrative proceeding before the Ohio Civil Rights Commission involved a party (the complainant) with which OFCCP is in privity. Id. at 10; reversed, Assistant Secretary for Employment Standards Decision and Order of Remand, October 3, 1995.

Contractor's motion for summary judgment is granted and complaint is dismissed on the grounds that, under the principle of collateral estoppel, OFCCP's complaint is barred by an Ohio Civil Rights Commission decision finding the contractor not liable for handicap discrimination against the complainant under Ohio state law. Ibid.; reversed, Assistant Secretary for Employment Standards Decision and Order of Remand, October 3, 1995.

The moving party on a motion for summary judgment has the initial burden of demonstrating the absence of a genuine issue of material fact. OFCCP v. Holly Farms Foods, Inc., 91-OFC-15, ALJ Order Denying Plaintiff's Motion to Deem Admitted Requests for Admission and for Summary Judgment, October 24, 1991, slip op. at 3; Consent Decree, June 2, 1993.

Because contractor contests the handicap status and qualifications of the class members, OFCCP's has failed to show an absence of genuine issues of material fact and, thus, motion for summary judgment is denied. Id. at 7; Consent Decree, June 2, 1993.

In ruling on a motion to dismiss or for summary judgment based on the timeliness of an action a court must construe the pleadings, affidavits and record in the light most favorable to plaintiff. OFCCP v. Norfolk & Western Railway Co., 93-OFC-4, ALJ Rec. Order Granting Motion for Summary Decision, August 19, 1993, slip. op. at 2; Assistant Secretary Order of Remand for Discovery, July 20, 1995.

Summary judgment should be awarded only in the absence of conflicting inferences to be drawn from the subsidiary facts. Id. at 2; Assistant Secretary Order of Remand for Discovery, July 20, 1995.

In order to obtain summary judgment, defendant must establish beyond a doubt that the plaintiff can prove no set of facts in support of the claim which would justify relief. Id. at 2; Assistant Secretary Order of Remand for Discovery, July 20, 1995.

Regulation 29 CFR 18.40 provides that the ALJ may enter summary judgment for either party if the pleadings, affidavits, material obtained by discovery or otherwise, or matters officially noticed show that there is no genuine issue as to any material fact and that a party is entitled to summary decision. Id. at 3; Assistant Secretary Order of Remand for Discovery, July 20, 1995.

Regulation 29 CFR 18.40 provides that the ALJ may deny a motion for summary judgment whenever the moving party denies access to information by means of discovery to a party opposing the motion. Id. at 3; Assistant Secretary Order of Remand for Discovery, July 20, 1995.

In granting summary judgment for contractor on the grounds that complaint was not timely filed, ALJ declines to permit OFCCP to conduct further discovery on the issue of whether contractor should have been on notice of the violations prior to the late filing or whether contractor was prejudiced by the delay in filing. Id. at 4; reversed, Assistant Secretary Order of Remand for Discovery, July 20, 1995.

In granting summary judgment for contractor on the grounds that complaint was not timely filed, ALJ finds that the Director of OFCCP erred in finding good cause for the late filing because 1) the OFCCP Director erred in finding a continuing violation; 2) the complaint was filed more than two years after the alleged violation; and 3) the contractor had posted notices regarding employees' Rehabilitation Act rights. Id. at 4-5; Assistant Secretary Order of Remand for Discovery, July 20, 1995.

The rules of practice and procedure applicable to Section 503 (41 CFR Part 60-30) do not contain a provision regarding motion to dismiss. Therefore pursuant to 41 CFR 60-30.1, the Federal Rules of Civil Procedure Rule 12(b) are applicable. OFCCP v. CSX Transportation, Inc., 88-OFC-24, Assistant Secretary for

Employment Standards Decision and Order of Remand, October 13, 1994, at 7-8; case closed January 17, 1996.

The Assistant Secretary held that a motion to dismiss for failure to state a claim under F.R.Civ. P. 12(b)(6), which relies on facts beyond the complaint may not be granted. Id. at 9.

An ALJ's consideration of facts outside of the pleadings as part of his decision to grant a motion to dismiss is reversible error. Id. at 9.

If matters outside the pleadings are presented to support an F. R. Civ. P. 12(b)(6) motion and not excluded by the court, the motion shall be treated as one for summary judgment under 41 C.F.R. Part 60-30, which sets forth the specific procedures for such a motion. Id. at 9-11.

Summary judgment must be denied where there are outstanding issues of fact. The duty of an adjudicator in deciding a motion for summary judgment is to determine whether any disputed material facts exist, not to resolve them. Id. at 13.

Dismissal with prejudice is a severe sanction, condoned only when the responding party would face dire consequences or substantial legal prejudice. OFCCP v. Jacobi-Lewis Company, Inc., 88-OFC-18, Assistant Secretary for Employment Standards, Final Decision and Order, May 2, 1995, at 4.

The applicable hearing regulations do not provide for voluntary dismissals. Therefore, pursuant to 41 CFR 60-30.1, Rule 41 of the Federal Rules of Civil Procedure applies. Id. At 4, n.2.

It is appropriate to grant a motion for summary judgment only when there are no material facts in dispute, thus permitting the deciding official to make a determination solely on the law of the case. OFCCP v. Norfolk & Western Railway Co., 93-OFC-4, Assistant Secretary for Employment Standards Order and Remand, July 20, 1995,at 4.

The ALJ's granting of the defendant's motion for summary decision, while the plaintiff's motions for discovery were unresolved was inappropriate. The plaintiff is entitled to present the best arguments it can in opposition to the defendant's motion for summary judgment. Therefore, a plaintiff must have access to information that could support its determination that a complainant's allegation, that he had been continuously refused reinstatement by the company for medical reasons since the date of his disqualification, constituted a continuing violation and was "good cause" to extend the filing date past 180 days. Id. at 2-3, 5.

Because the plaintiff should also have the opportunity to make specific arguments in support of its opposition to a defendant's summary judgment motion, OFCCP had a right to discovery prior to responding to defendant's motion for summary judgment. Id. at 3, 5-6.

OFCCP proceedings are governed by 41 CFR Part 60-30, and 60-30.1 provides that "[i]n the absence of a specific provision, procedures shall be in accordance with the Federal Rules of Civil Procedure." Moreover, Section 60-30.23 specifically pertains to summary judgment. The ALJ noted for the record, that the rules of evidence at 29 CFR Part 18, subpart (b) are applicable to the adjudication of the case. 41 CFR § 60-30.18. OFCCP v. United Airlines, 94-OFC-1, December 12, 1994, ALJ Order at 2.

Under 41 CFR § 60-30.23(b), a motion for summary judgment can be timely filed by a defendant at any time after commencement of an action and at least 15 days before the time fixed for the hearing on the motion. OFCCP v. United Airlines, 94-OFC-1, June 9, 1995, ALJ Order at 3.

In denying the defendant's motion for summary judgment, ALJ held that if he concluded per defendant's motion that the complainant was not an "individual with a disability" within the meaning of Section 503, then the issues relating to discrimination and remedies are moot. Moreover, since in reviewing a motion for summary judgement, the evidence must be considered in the light most favorable to the nonmoving party, the ALJ considered it necessary to view any inference that could be drawn from the material submitted in favor of the plaintiff. OFCCP v. United Airlines, 94-OFC-1, July 20, 1995, ALJ Order at 3.

Complainant's history of myopia (which lead to the RK surgery) creates a genuine issue of material fact as to whether he has a record of impairment. Id. at 3.

Evidence of United's policy of not hiring pilots who have undergone radial keratotomy surgery and the application of the policy to the complainant creates a genuine issue of material fact as to whether United regarded the complainant as impaired. Id. at 2-3.

A motion for summary judgment will be granted if the pleadings, affidavits, and other evidence show that there is no genuine issue of any material fact and that the party filing the motion is entitled to judgment as a matter of law. Id. at 2.

Statutory amendments and administrative rules are not construed to have retroactive effect absent clear congressional intent favoring such a result. OFCCP v. Keebler Company, 87-OFC-20, Administrative Review Board, Final Decision and Order, September 4, 1996, at 4; Motion for Reconsideration pending, Administrative Review Board.