United States Department of Labor Office of Administrative Law Judges Law
Library
UNITED STATES DEPARTMENT OF LABOR *
OFFICE OF THE SOLICITOR * CIVIL RIGHTS DIVISION
INDEX TO ADMINISTRATIVE DECISIONS UNDER SECTION
503 OF THE REHABILITATION ACT OF 1973
TOPIC 205: SUMMARY JUDGMENT, MOTION TO
DISMISS
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.
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'dandremanded, 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,
vacatedonothergrounds, 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; finaldecisionvacatedsub.nom., Cissell Manufacturing Co., v. U.S. Department of
Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appealpending.
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; reversedandremandedonothergrounds, 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.; reversedandremandedonothergrounds, 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; ConsentDecree, 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; ConsentDecree, 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; ConsentDecree, 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; ConsentDecree, 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;
caseclosed 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.