84ct038a.htm

DATE:  September 26, 1991
CASE NO. 84-CPA-38



IN THE MATTER OF

WALTER B. NORWOOD,

               COMPLAINANT,

     v.

STATE OF ALABAMA DEPARTMENT
OF INDUSTRIAL RELATIONS, and
STATE OF ALABAMA DEPARTMENT
OF ECONOMIC AND COMMUNITY AFFAIRS,

               RESPONDENTS.


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 regulations at 20 C.F.R. Parts 675-680
(1990).  Respondents filed exceptions to the Decision and Order
(D. and O.) of the Administrative Law Judge (ALJ) holding that
their failure to select Complainant for a position in the 1983
Summer Youth Employment Program (SYEP) violated the requirement
that such jobs be awarded among the most severely disadvantaged
in an equitable manner.  D. and O. at 7.  Respondents also contested
the ALJ's back pay order.
                             BACKGROUND
     On May 6, 1983, Complainant, Walter B. Norwood, applied for
the 1983 SYEP through the Alabama State Employment Service
(ASES).  Exhibit (Ex.) 2.  Complainant had worked in the SYEP in
1982 at Leroy High School in Washington County, Alabama. 
Id.; 
[PAGE 2]
Administrative File (A.F.) Tab H at 24.  Respondents again
selected that facility as one of the work sites for the 1983
SYEP.  A.F. Tab H at 97.  ASES certified Complainant as eligible
for the 1983 SYEP, Ex. 2, but did not place him at Leroy High
School or any other location.
     Complainant filed a complaint on September 22, 1983, with
the State Office of Employment and Training, challenging his non-
selection and seeking back pay for the period he would have
worked.  A.F. Tab G.  A hearing was held on October 31, 1983, 
and on November 16, 1983, the hearing officer issued a decision
denying the complaint, finding that the failure to select
Complainant did not violate CETA or any of its implementing
regulations.  Id.  The Department of Labor's Regional
Administrator upheld that decision, concluding that there was 
no evidence that Respondents acted improperly in not selecting
Complainant for the 1983 SYEP.  A.F. Tabs B, F.
     Before the ALJ, the parties agreed to waive a full hearing
and submit the case for decision on the record consisting of the
administrative record, the pleadings and exhibits introduced at
the hearing.  Transcript at 5.  In his decision, the ALJ noted
that 20 C.F.R. § 680.207(a) requires prime sponsors to
submit a SYEP subpart incorporating the Youth Employment Training
Program (YETP) requirements to describe the methods used to
recruit, select and verify applicants.  20 C.F.R. §
680.207(d)(3)(iv).  D. and O. at 5.  The YETP regulations require
that the subpart "describe the criteria to be used to select
youth that are most in need. . . ."  20 C.F.R. §
680.5(c)(3)(i).
     Respondents' SYEP 1983 Guidelines, Ex. 1, required each
participant to meet the eligibility criteria [2]  and to come
from established target groups.  Id. at 3.  The target
groups were:  1) high school dropouts, 2) handicapped youths, 3)
minorities 
and 4) most severely economically disadvantaged.  Id. at
16.
     The record includes Complainant's application as well as
those of the four participants selected for employment in the
1983 SYEP at Leroy High School.  Ex. 2; Ex. 3 at 40; A.F. Tab H
at 97.  Of the five, none was a high school dropout or
handicapped and all are minorities.  The ALJ found that
Complainant was the "most severely economically disadvantaged"
based on family income.  D. and O. at 3, 6.  See
also A.F. Tab H at 40-41; Ex. 2.  Thus, the ALJ concluded,
Complainant equalled or exceeded the needs of the others selected
as established by the target groups.  D. and O. at 6.
     Because Complainant was economically the "most in need," the
ALJ found it was incumbent on Respondents to show why he was not
selected. [3]   They failed to do so because the individual in
charge of selection did not know why Complainant was not 
[PAGE 3]
selected.  Id.; A.F. Tab H at 104.  The ALJ concluded,
based on 20 C.F.R. § 680.209(c), that Respondents had not
proven that the jobs were awarded among the most severely
disadvantaged in an equitable manner.  He decided that
Complainant was entitled to back pay for the period he would have
worked while enrolled in the 1983 SYEP.  D. and O. at 6.
                             DISCUSSION
                 I.  Failure to Select Complainant
     Section 484 of CETA, 29 U.S.C. § 945, provides that the
SYEP "shall meet such regulations, standards and guidelines as
the Secretary shall establish."  Under applicable Department of
Labor regulations, prime sponsors are required to provide
services "to those individuals most in need among its
economically disadvantaged youth [[4] ] population. . . .  Such
services shall be provided on an equitable basis. . . ."  20
C.F.R. 
§ 680.206(a).  Additionally, each prime sponsor must 
"ensure . . . that jobs are awarded among the most severely
disadvantaged in an equitable fashion."  20 C.F.R. §
680.209(c).
     Although the phrase "most in need" is not defined, the
references in Sections 680.206(a) and 680.209(c) [5]  to services
being "provided on an equitable basis" and jobs being awarded 
"in an equitable fashion" suggest, as argued by the Grant Officer
and Respondents, Grant Officer's Brief (G.O. Br.) at 3, 7;
Respondents' Initial Brief at 4-5, that there need not be a
precise ranking of applicants.  In this case, Respondents'
Guidelines identified at least five applicants being considered
for positions at Leroy High School [6]  who met the eligibility
criteria and came from a target group and, therefore, met the
threshold requirements for "most in need."  See Ex. 1 
at 3.
     The Guidelines Selection Criteria include the target groups,
applicant interests/motivation and work site availability.  The
latter two factors do not differentiate Complainant from the
selected applicants as the record demonstrates, and none of the
parties disputes, that Complainant was interested in the work
available at Leroy High School and could find transportation to
the work site.  As the ALJ found, D. and O. at 6, the four
selected participants and Complainant are minorities and
Complainant was the most severely economically disadvantaged. [7]

     As a result of satisfying more of the selection criteria,
Complainant was the best qualified under the Guidelines. [8]  
Because Complainant was best qualified under Respondents'
Guidelines, and Respondents have offered no reason why failing to
select him was equitable, he should have been awarded one of the
1983 SYEP jobs at Leroy High School.  In this circumstance,
Respondents' failure to select him constitutes a violation of 
the Act and the regulations.  See 29 U.S.C. § 945; 20
C.F.R. 

[PAGE 4]
§ 680.209(c). [9] 
                           II.  Back Pay
     An award of back pay is proper in CETA cases as a remedy to
make whole an aggrieved party.  20 C.F.R. § 676.91(c);
County of Monroe, Florida v. United States Department of
Labor, 690 F.2d 1359, 1362 (11th Cir. 1982).  Here the Grant
Officer argues that Complainant is not aggrieved because he has
shown, at most, procedural deprivations in the SYEP selection
process.  G.O. Br. at 13-17.  He states that the test for whether
back pay should be awarded is "if the proper procedures had been
followed, would he [Complainant] have been selected."  G.O. Br.
at 17.
     I agree that this is the proper test for back pay, but
conclude, contrary to the Grant Officer, that Complainant has
satisfied its requirements.  For the reasons stated supra,
if Respondents' Guidelines had been applied properly,
Complainant, as the best qualified applicant, would have been
selected.  The ALJ's award of back pay, therefore, was proper.
[10] 
                        CONCLUSION AND ORDER
     For the foregoing reasons, I conclude that Respondents
violated the Act and regulations by failing to select Complainant
for the 1983 SYEP and that Complainant is entitled to back pay
for the period he would have been employed.  The ALJ's D. and O.
is therefore AFFIRMED.
     SO ORDERED.



                              __________________________
                              Secretary of Labor

Washington, D.C.

OAA:TMORRISS:kg:05/16/95
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]   For the SYEP, a participant had to be economically
disadvantaged, see 20 C.F.R. § 675.4, and between the
ages 
of 14 and 21.  20 C.F.R. § 675.5-10.

[3]   The ALJ, citing McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), a Title VII discrimination case, also stated
that Complainant established a prima facie case for selection
which Respondents have not refuted.  D. and O. at 7.  Both
Respondents and the Grant Officer argue that the ALJ thereby
improperly shifted the burden of proof.  Respondents' Initial
Brief at 6; Grant Officer's Brief at 10.  I disagree.

     Although the elements necessary to establish a prima facie
case may differ between CETA cases and discrimination cases, the
effect of doing so is to shift only the burden of going forward
with the evidence.  See Black's Law Dictionary 1071 (5th
ed. 1979).  In CETA cases the party requesting the hearing -- in
this case the Complainant -- has the burden of establishing facts
and entitlement to relief.  20 C.F.R. § 676.90(b).  I see no
indication that the ALJ shifted the burden of proof to
Respondents in this case.

[4]   "Economically disadvantaged youth" describes the general
eligibility criteria for the SYEP.  See note 2
supra.

[5]   While Section 680.209(c) does not include the phrase "most 
in need," the phrase "most severely disadvantaged" seems
functionally equivalent because each phrase describes a smaller
category with similar, if not identical, attributes, among those
applicants satisfying the general eligibility criteria.

[6]   The record includes only the applications of Complainant
and those selected, and is silent as to whether there were other
applicants considered for positions at Leroy High School who met
the criteria for most in need.  See discussion at page 3
supra.

[7]   Complainant's total family annualized income at the time of
application was .00.  The next most economically disadvantaged
applicant had a total family annualized income of $5,162.00.  
Ex. 2.

[8]       The grantee's Guidelines' Selection Criteria provide
that "[i]f two applicants are equally qualified in all other
respects, the applicant who has not participated in
past programs should receive preference."  Ex. 1 at 16.  Since
Complainant was the best qualified, none of the other applicants
would benefit from this preference, even though Complainant had
prior participation.  Moreover, one of the other applicants who
was selected also had prior participation, See Ex. 2.  

[9]   Neither the Act nor the Department of Labor regulations
mandated these particular selection criteria; they were
determined and listed, but not otherwise defined, Ex. 1 at 16, 
by the grantee.  Had Respondents adopted different selection
criteria or further explained or weighted these criteria, greater
flexibility in selecting participants could have been preserved
and this case might have been resolved differently.

[10]   In addition to back pay, Complainant seeks pre-judgment
interest on the award.  Brief of Complainant at 17.  The ALJ did
not award interest and Complainant failed to file exceptions to
that part of the ruling.  Although, a prevailing party need not
always file exceptions to contest certain aspects of an ALJ's
decision, where, as here, he seeks to alter the judgment to
enlarge his rights, filing exceptions is necessary.  In the
Matter of U.S. Department of Labor v. City of Tacoma,
Washington, Case No. 83-CTA-288, Sec. Order, Oct. 24, 1990,
slip op. at 3-4.  Complainant, therefore, has waived his right to
contest the ALJ's failure to award interest.  See
also 20 C.F.R. § 676.91(f).