DATE:
CASE NO. 79-CETA-269
IN THE MATTER OF
IRVING SIEGEL
v.
PROJECT COPE, NORWOOD CETA
CONSORTIUM, MASSACHUSETTS
BALANCE OF STATE PRIME SPONSOR,
AND U.S. DEPARTMENT OF LABOR.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
This case arises under the Comprehensive Employment and
Training Act (CETA or the Act), 29 U.S.C. §§ 801-999
(Supp. V 1981), [1] and promulgated regulations. The
Complainant, Irving Siegel, filed exceptions to that part of the
Decision and Order (D. and O.) of the Administrative Law Judge
(ALJ), finding that Complainant was not discriminated against
because of his handicap. The case was accepted for review as
provided under the applicable regulations.
BACKGROUND
Complainant was a CETA participant in a computer programming
training program conducted by Project COPE, a contractor for the
subgrantee, Norwood CETA Consortium. The training consisted of
fifteen weeks of classroom instruction beginning in January 1978,
followed by a twelve week internship ending in July 1978 with
Digital Equipment Corporation (Digital), a private firm. D. and
O. at 2; Transcript (T.) at 50; Complainant's Exhibits (CX) 1-L,
1-M, 8.
Initially Project COPE rejected Complainant because of poor
[PAGE 2]
results on a vocational screening test, but he was admitted later
based on a letter of recommendation by the Massachusetts
Rehabilitation Commission and because of his motivation and
persistence. Respondent's Exhibit (RX) 6; CX 3; T. at 42, 171-
72. He completed the classroom instruction and was assigned an
internship at Digital along with another Project COPE
participant. T. at 57-58.
At Digital, Complainant experienced problems with the work,
which he attributed to improper supervision. T. at 65-67. He
was reassigned eventually to the library for training as a
computer tape librarian. T. at 86. Although Complainant
initially did satisfactory work there, his supervisor at Digital
did not recommend him for hire. T. at 239.
On July 31, 1978, Complainant filed a grievance with the
subgrantee, alleging that the internship had not been properly
conducted. CX 1-H. The subgrantee denied the grievance by
letter dated August 11, 1978. CX 1-F. The grantee,
Massachusetts Balance of State Prime Sponsor, affirmed the denial
on February 22, 1979. CX 1-A. The Grant Officer, in a final
determination dated September 10, 1979, concurred in the
grantee's decision.
Before the ALJ, Complainant argued that the Department of
Labor was responsible for procedural abuses in failing to
investigate his CETA grievance and failing to make a timely final
determination. D. and O. at 1-2. Complainant also alleged that
he was denied the opportunity to make sufficient discovery prior
to the hearing. D. and O. at 10. The ALJ concluded that there
was no need for any additional investigation nor was there any
procedural abuse which was in his power to correct. D. and O.
at 12. As to the discovery issue, the ALJ stated that the
administrative file contained no information of efforts to obtain
discovery or use of the subpoena power to obtain testimony. D.
and O. at 10.
Complainant alleged that the subgrantee and grantee violated
the Act by referring him to Project COPE despite the assessment
that he did not have sufficient aptitude to gain employment in
his area of training. He also argued that they violated the Act
by failing to provide supportive services, particularly job
training and individual counseling, necessary for him to
participate successfully in Project COPE. Finally Complainant
asserted that, as a qualified handicapped person, he was afforded
an internship at Digital which was unequal and inferior to that
afforded the other intern placed there by Project COPE. D. and
O. at 1.
The ALJ decided that neither the subgrantee nor the grantee
violated the Act by referring Complainant to Project COPE despite
the assessment of his poor aptitude for computer programming. D.
[PAGE 3]
and O. at 9. He also concluded that Complainant was not denied
supportive services in that instruction was provided to the point
that any more would have required the supervisors to do the job
themselves. Additionally, the ALJ found that it was within
Project COPE's discretion to suggest psychiatric counseling as a
means of accommodating Complainant's anxiety. D. and O. at 10.
Concerning the alleged unequal and inferior internship, the ALJ
found that the only evidence regarding disparate treatment was
the case of the other intern who was not shown to be in need of
counseling or psychiatric service, whereas Complainant was in
need of such service. Under the circumstances, the ALJ concluded
that it was a legitimate decision on the part of Project COPE to
determine if Complainant's impairment could be ameliorated rather
than adjusting the training environment and there was, therefore,
no violation of the anti-discrimination provisions of CETA and
the Rehabilitation Act of 1973. D. and O. at 11.
DISCUSSION
A. Procedural Issues.
Complainant contends that the Grant Officer's response
should be disregarded because it was not "partially or fully in
support of" Complainant's petition as required by the June 5,
1981, Notice of Amended Response and Reply Schedule.
Complainant's Reply (C. Reply) at 6. The notice does not limit
the Grant Officer to responding in favor of the Complainant.
Rather, it sets a time frame for receipt of parties' responses,
and I have considered all filings by the parties. [2]
Before me Complainant again contends that there was no
investigation of his CETA grievance. C. Reply at 4. A review of
the record, however, discloses, as the ALJ found, that there was
ample information available concerning the issues raised in the
grievance. This included performance evaluations, progress
reports, a letter of recommendation, a vocational assessment and
a counselor's report. CX 1-I, J, L, M and N; CX 3; RX 6; and
CX 9. I therefore reject Complainant's contention.
Complainant next alleges that, in accordance with 20 C.F.R.
§ 676.86(b)(9) (1979), the portion of his complaint
involving disparate treatment of a handicapped individual should
have been referred to a Department of Labor Equal Employment
Opportunity officer for investigation and handling pursuant to 29
C.F.R.
Part 31. C. Reply at 6,7. Section 676.86(b)(9) provides in
relevant part that "[c]omplaints alleging discrimination
on
the basis of . . . handicap . . . shall be investigated by a
Department of Labor EEO officer and otherwise handled in
accordance with the federal level procedures set forth at
29 C.F.R. Part 31, . . ." (emphasis added). The complaint here
states only that "Mr. Siegel received inadequate internship
training substantially different from the other intern . . . ."
[PAGE 4]
CX 1-D. It is in the Supplemental Prehearing Statement, at 2-3,
presented at the hearing, that Complainant alleges handicap
discrimination and for the first time purports to invoke the
protections of Section 504 of the Rehabilitation Act of 1973.
Section 676.86(b)(9), however, provides for referrals of handicap
discrimination cases only where the allegation is made in the
complaint. Inasmuch as Complainant was represented by counsel
before the Grant Officer and failed to allege handicap
discrimination in the complaint, there is no basis for referring
that issue to an EEO officer for an investigation.
Accordingly, I vacate that part of the D. and O. which makes
findings under the Rehabilitation Act of 1973 and dismiss the
claim as to that issue.[3]
Complainant's assertion of error concerning the time
limitations in the Act for handling CETA grievances, C. Reply
at 4, is denied. Brock v. Pierce County, 476 U.S. 253,
266 (1986).
B. Handicap Discrimination
Discrimination based on handicap is proscribed by Section
132(a) of CETA, which provides in relevant part that "[n]o person
. . . shall on the ground of . . . handicap . . . be subjected to
discrimination under . . . any program or activity funded in whole or in part with funds made available under this chapter."
29 U.S.C. § 834(a). Seealso 29 C.F.R. §
98.21(b) (1979).
CETA protects only workers who, despite a handicap, remain
qualified for their job. Cook v. United States Department of
Labor, 688 F.2d 669, 670 (9th Cir. 1982). An otherwise
qualified person is thus one who is able to meet all of a
program's requirements in spite of his handicap. Southwestern
Community College v. Davis, 442 U.S. 397, 406 (1979).
Complainant has identified his alleged handicaps as anxiety
and chronic lower back pain, Complainant's Petition for Review
(C. Pet.) at 2, although it is by no means clear which he views
as the asserted basis for his discrimination claim. [4]
Irrespective of this, the credible record evidence does not
support a claim of discrimination against Complainant, on the
basis of handicap or otherwise.
Complainant alleges that the other intern at Digital
received more closely supervised training. C. Pet. at 2. I find
this contention refuted by the bulk of the other testimony [5]
and other evidence of record. [6] Specifically, there was
testimony that Digital complained that Complainant could not do
anything without being so closely supervised that the supervisor
might as well have done the work. T. at 177, 264. While Project
COPE's vocational rehabilitation counselor acknowledged that
Complainant needed considerable structured supervision, she
[PAGE 5]
concluded that he was provided with the necessary supervision.
[7] T. at 252, 264. Under these circumstances, providing
Complainant even closer supervision would have imposed an undue
hardship on Digital and be tantamount to Complainant's admitting
that he was not otherwise qualified to perform his job at Digital
because it would have required Digital to substantially lower its
standards to accommodate him. SeeDavis, 442 U.S.
at 413. Complainant would then not be entitled to protection
under CETA. Cook, 688 F.2d at 670.
Complainant argues that the ALJ erred by not allowing him to
cross examine the Project COPE Director to elicit testimony as to
the nature of the other intern's disability and the training he
received. C. Reply at 12-13. See T. at 164, 216. While
in most cases this information might be germane, here the
evidence establishes that Complainant received the maximum
supervision possible consistent with his being considered
otherwise qualified to do the job assigned to him. Moreover,
there is evidence in the record that the other intern was
performing at a much higher level at Digital than Complainant and
would, therefore, presumably have needed and received far less
supervision. See CX 1-I. Accordingly, the ALJ, by
refusing to admit evidence on this issue, committed at most
harmless error.
The record suggests that the most significant factor in
Complainant's difficulties at Digital was not lack of training,
but his own disruptive behavior which not only impeded his own
development, but was a hindrance to other employees. T. at 152,
175, 224 and 231; CX 1-J, L and N; RX 6; CX 9. In this regard,
the Attorney General has declared, in an opinion concerning
handicap discrimination, that "[a] person's behavioral
manifestations of a disability may also be such that his
employment would be unduly disruptive to others, and [applicable
federal law] presumably would not require unrealistic
accommodations in such a situation." 43 Op. Att'y Gen. No. 12
(1977).
In response to this situation, Project COPE suggested
counseling in the hope that it would make Complainant a better
programmer and more employable. T. at 181, 236, 245 and 246;
CX 9. Complainant, however, never availed himself of these
opportunities for help with his asserted behavioral problems. In
my judgment, both Project COPE and Digital, by retaining
Complainant in their respective programs and offering training
and counseling, fully met their obligations under CETA and
neither
is responsible for handicap discrimination under the Act.
CONCLUSION AND ORDER
For the foregoing reasons, I conclude that Project COPE made
a reasonable accommodation to Complainant on the basis of any
[PAGE 6]
asserted handicaps and that he was not subjected to
discrimination or unequal treatment in violation of CETA. The
ALJ's D. and O. is therefore AFFIRMED as to the CETA complaint.
For the reasons discussed supra, the complaint alleging
violation of the Rehabilitation Act of 1973 is dismissed.
SO ORDERED.
___________________________
Secretary of Labor
Washington, D.C.
OAA:TMORRISS:cl:May 16, 1995
Room S-4309:FPB:523-9728
[ENDNOTES]
[1] CETA was repealed effective October 12, 1982. The
replacement statute, the Job Training Partnership Act, 29 U.S.C.
§§ 1501-1791 (1988), provides that pending proceedings
under CETA are not affected. 29 U.S.C. § 1591(e).
[2] Complainant argues against considering the response "filed
on behalf of Hershey [sic] Products, Inc.," asking "[w]ho is
Hershey [sic] Products, Inc., and what interest does it have in
this matter?" C. Reply at 5. Complainant's grievance identifies
the respondent as Project COPE Hersey Products, Inc. CX 1-H.
Seealso progress reports headed Project COPE
Hersey Products, Inc., CX 1-M. This argument is rejected.
[3] No prejudice to any concern of Complainant is apparent by
this ruling because the basic merits of the handicap
discrimination claim are reviewed infra under CETA.
[4] Complainant's claim that he received less supervision and
training than a fellow CETA participant seems to relate more to
accommodation of Complainant's asserted anxiety than to his back
pain.
[5] Complainant produced no witnesses to corroborate his
allegations.
[6] Complainant alleges that the ALJ found convincing evidence
cited to show that in the initial weeks at Digital his training
was left largely to his own device 5. C. Reply at 15.
Complainant misreads the ALJ's decision. The ALJ used these
words in recounting Complainant's arguments, not in making
findings. See D. and O. at 8.
[7] A CETA recipient had to make reasonable accommodation to
the limitations of an otherwise qualified handicapped applicant
unless it could demonstrate that the accommodation would impose
an undue hardship on the operation of its program. 29 C.F.R.
§ 32.13 (1979)(superseded).
