CCASE_NAME:
OFCCP V. CISSELL MANUFACTURING
CCASE_NO:
87-OFC-26
DDATE_ISSUED:
19881221
TTITLE:
DECISION AND ORDER ON MOTION FOR SUMMARY JUDGMENT
TTEXT:
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Date: December 21, 1988
CASE NO. 87-OFC-26
In the Matter of
OFFICE OF FEDERAL CONTRACT
COMPLIANCE PROGRAMS,
U. S. DEPARTMENT OF LABOR
Plaintiff
v.
CISSELL MANUFACTURING COMPANY
Defendant
DECISION AND ORDER ON MOTION
FOR SUMMARY JUDGMENT
This action is brought under the provisions of the
Rehabilitation Act of 1973, as amended (29 U.S.C. 793)
hereinafter referred to as the Act, and regulations thereunder at
41 C.F.R. Part 60-741. Jurisdiction of this action is conferred
by Section 503 of the Act (29 U.S.C. 793) and 41 C.F.R. 60-
741.29.
The Act provides that any contract for more than $2,500.00
entered into by a federal department or agency for the
procurement of personal property and nonpersonal services
(including construction) must contain a provision requiring that,
in employing persons to carry out such contracts, the party
contracting to advance in employment qualified handicapped
individuals. An applicant for employment who believes he or she
has been discriminated against in violation of the Act may file a
complaint within 180 days of the occurrence of the alleged
violation. The employee protection provisions are implemented by
regulations providing for investigation, hearing, and disposition
of such complaints. (41 C.F.R. 60741.1, et seq.)
I. STATEMENT OF THE CASE
The plaintiff, the Office of Federal Contract Compliance
Programs (hereinafter OFCCP or plaintiff), filed a complaint on
August 28, 1987, alleging that Cissell Manufacturing Company
(hereinafter Cissell or Defendant): (a) failed and refused to
take affirmative action to employ and advance in employment a
qualified handicapped individual, Larry F. Brown (hereinafter
Brown), (b) adopted company policies which discriminate against
qualified handicapped individuals
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adopted policies and procedures refusing to provide proper
consideration of handicapped individuals, (c) failed or refused
to make reasonable accommodations to Brown's physical
limitations, (d) applied physical job requirements which screened
out Brown, and using medical exam results in violation of the
regulations, (e) failed to follow the terms of its Affirmative
Action Programs for Handicapped Individuals, (f) failed to seek
the advice of an identified, qualified handicapped individual
regarding placement and accommodation of Brown.
Cissell filed its Answer to the Complaint denying that it
engaged in discriminatory action prohibited by the Act with
respect to Brown. On October 4, 1988, Defendant filed a Motion
for Summary Judgment arguing (1) that the plaintiff's Complaint
is time-barred; (2) that Brown is not handicapped as defined by
the Act; (3) and that Brown is not a qualified handicapped
individual as defined by the Act and Regulations. The plaintiff
filed its Response to the Motion for Summary Judgment.
Both parties have presented Briefs and written arguments in
support of their position. The findings and conclusions which
follow are based upon a careful analysis of the entire record
(including the deposition testimony of Larry F. Brown and other
individuals whose depositions are filed in this proceeding) in
light of the arguments of the parties, applicable statutory
provisions, regulations, and pertinent case law.
II. FINDINGS OF FACT
1. Defendant, Cissell Manufacturing Company, is a private
corporation located in Louisville, Kentucky, and is engaged in
the production of commercial laundry and drycleaning equipment.
2. The Defendant is a government contractor within the
meaning of the Act, having one or more contracts in excess of
$50,000.00 with the federal government and its agencies. As
such, Cissell is subject to the contractual obligations imposed
on government contractors and subcontractors by the Act and
Regulations.
3. Brown began working a Cissell on September 18, 1978, as
a welder on the dryer line, making the backs of dryers. A couple
of months later, he switched to the "spider table" where he was
responsible for welding together metal four-pronged component
parts known as "spiders" to the actual dryer drum (Brown Dep.
5/21/85, pp. 15.17).
4. On April 28, 1993, some floor boards collapsed under
Brown causing some nearby parts bins full of washers to slide off
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their shelf hitting Brown on the knees (Brown Dep. 5/21/85; pp.
22-24; 32-34). Brown filled out an accident report but continued
to work after the accident without interruption and without
mentioning to anyone at Cissell that he was suffering rom any
pain or discomfort (Brown Dep. 5/21/85 pp. 33-34; 51-52).
5. Brown remained at the "spider table" until August of
1983 when he took a week long vacation. Upon his return to work,
Brown found that he had been replaced at the "spider table" and
was put back on the driver line (Brown Dep. 5/21/85, p. 17).
Brown's transfer to the dryer line was not a demotion as he
received the same salary, maintained his seniority, and remained
within the same job classification (Brown Dep. 5/21/85; pp. 24-
25).
6. In August, after being moved from the spider table back
to the drying line, Brown's knees started to give him trouble,
because he had to get up and down, bend and stoop all day long
(Brown Dep. 5/21/85, pp. 23, 53). On August 11, 1983, Brown went
to see Dr. Raymond Shea, an orthopedic surgeon, regarding pain in
the knees which resulted from the accident of April 26, 1983
(Shea Dep., pp. 6-7).
7. Dr. Raymond Shea diagnosed Brown's condition as
chondro-malacia patella, both knees. X-rays of the knees showed
on abnormality and no work restrictions were prescribed. Dr.
Shea telephoned someone at Cissell between August 11 and August
23 and recommended that Brown be given his old job back (Shea
Dep., pp. 16-17; Brown Dep. 5/21/85, p. 24). Brown returned to
Dr. Shea's office on August 23, 1983, at which time Dr. Shea gave
him bilateral knee sleeves to wear for support at work (Shea
Dep., p. 11).
8. In early September, 1983, Brown bid into a position as
a spot welder, which necessitated a cut in pay. This job
involved standing up with his foot on a pedal; it did not
required excessive bending or stooping (Brown Dep. 5/21/85, pp.
27-28). between September, 1983 and October, 1984, Brown
continued to experience knee pain and discomfort while working as
a spot welder (Brown Dep. 5/21/85, pp. 59-60).
9. On August 31, 1984, Brown went to another orthopedic
surgeon, Dr. Jerrold E. Tomlin. Dr. Tomlin diagnosed chondro-
malacia of the patella, a type of arthritis which can result
either on its own or from an injury. X-rays of the knees were
taken and were normal. Dr. Tomlin advised Brown to do
strengthening exercises for his knees and to avoid knee bends and
stairs (Tomlin Dep., p. 4-6).
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10. After seeing Dr. Tomlin again on October 9, 1984, Brown
returned to work with a note from the doctor stating that Brown
"[s]hould not have a job that requires stooping or deep knee
bending. Preferably a sit know job." (Defendant's Motion for
Summary Judgement, Exh. E.) When Brown showed Dr. Tomlin's note
to his foreman, the foreman stated, "Hit the clock, we don't have
any light duty" (Brown Dep. 5/21/85, p. 28).
11. Beginning October 10, 1984, Brown was on sick leave,
and Cissell continued to pay his sick/accident benefits for 26
weeks (DeNardi Dep. 12/11/86, p. 19). Brown thereafter requested
and received an extension of sick leave, which was extended for
two 90-day periods up until October 10, 1985. Pursuant to
company policy, after the two extensions were granted, Brown was
terminated for medical reasons on October 10, 1985 due to the
physical restrictions placed on him by Dr. Tomlin (DeNardi Dep.
12/11/86, pp. 21-22; Brown Dep. 12-1-86, Exh. E).
12. On October 30, 1984, Dr. Julius T. Gavin, another
orthopedic surgeon, examined Brown and diagnosed chondromalacia
patella in the left knees. In his full report dated November 12,
1984, Dr. Gavin stated that Brown does not necessarily need to
be in a sit know job, but that Brown likely could not do a job
which required repetitive stooping and bending; that Brown would
be capable of doing a job which involved prolonged standing; and
that, under the AMA Guidelines, Brown has a total body disability
of approximately two percent, due to traumatic chondromalacia
patella arising from his on the job injury. He said that there
are different types of chondromalacia patella, most of which is
actually seen in young ladies at a very young age, usually in
their teens (Gavin Dep. 4/30/85; p. 8-12).
13. On November 11, 1985, Kentucky Worker's Compensation
Board found Brown 10 percent disable, and awarded benefits
accordingly (Plaintiff's Response to Defendant's Motion for
Summary Judgment, Appendix A). After the Workers' Compensation
Board's decision, Cissell considered Brown covered by Workers'
Compensation and not Medical Leave during Brown's leave of
absence. Under company policy, therefore, Brown was reinstated
and was told that he would return to work as soon as his doctor
released him from all medical restrictions, since Cissell has no
light duty positions (Brown Dep. 12/1/86, Exh. G).
14. Brown has not worked at Cissell since October 10, 1984,
and has not sought reemployment but is waiting to be reinstated
at Cissell (Brown Dep. 12/1/86, p. 32). In order to earn money,
Brown owns and trains harness race horses. He exercises the
horses once a day, and occasionally rides them (Brown Dep.
12/186, p. 29). When asked to explain how he trains his horses,
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Brown replied, "You put a harness on him, you hook him up to a
cart, you go out and usually exercise the horse three or four
miles a day. May be once a week you turn the horse the right way
of the track, and you build their wind up, their speed and stam-
ina, such as that" (Brown Dep. 12/1/86, p. 30).
III. SUMMARY JUDGMENT
To be successful in its Motion for Summary Judgment, the
Defendant must show that there is no genuine issue as to any
material fact and that it is entitled to judgement as a matter of
interrogatories, and admissions of file, together with the affi-
davits, if any. Rule 56 FRCP; 29 C.F.R. 18.41. In ruling on a
motion for summary judgment, the court must construe the evidence
in the light most favorable to the party opposing the motion and
against the movant. State Mutual Life Assurance Co. of America
v. Deer Creek Park, 612 F.2d 259 (6th Cir. 1979). In a ruling on
resolve any existing factual issues but to determine whether any
such issue exists. United States v. Diebold, Inc., 369 U.S. 654
(1962).
IV. CONCLUSIONS OF LAW
A. Timeliness
The Defendant's first argument in support of this motion for
summary judgment is that Brown failed to file his complaint with
the OFCCP within the 180 day time limit. 41 C.F.R.
60-741.26(a)
provides:
Place and time of filing. Any applicant for
employment with contractor or any employee of
a contractor may, personally or by an
authorized representative, file a written
complaint with the Director alleging a
violation of the Act or the regulations in
this part. Such complaint must be filed
within 180 days from the date of the alleged
violation, unless the time for filing is
extended by the Director for good cause
shown.
According to Cissell, Brown was advised of its "no light duty"
policy in October, 1984, but he did not file his OFCCP complaint
until October 20, 1984 that the 180 day time period for filing
began to run.
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Brown filed his complaint with OFCCP on October 20, 1985,
ten days after Cissell informed him that his employment was
terminated for medical reasons. It was on October 10, 1985, that
the alleged violation took place, since it was then that "the
facts that would support a charge of discrimination [were] appar-
ent to" Brown. See Boyd v. United States Postal Service, 752
F.2d 410, 414 (9th Cir. 1985). At the very earliest, the alleged
violation happened on July 11, 1985, when William DeNardi,
Director of Corporate Relations at Cissell, wrote to Brown that
he would be terminated on October 10, 1985, when his second and
final ninety day leave of absence expired. Assuming July 11,
1985, were the date of the violations, Brown's complaint would
still be timely filed.
B. Handicapped Individual
In order to prevail on its claim of handicap discrimination,
OFCCP must satisfy the threshold requirement of showing that
Brown is a handicapped person as defined by the statute. For
purposes of the Act, a handicapped individual is defined as:
[A]ny person who (i) has a physical or mental
impairment which substantially limits one or
more of such person's major life activities,
(ii) has a record of such an impairment, or
(iii) is regarded as having such an
impairment.
29 U.S.C. 706(8) (B).
Two additional definitions are provided in the regulations:
The phrase "substantially limits" means the
degree that the impairment affects employa-
bility. A handicapped individual who is
likely to experience difficulty in securing,
retaining or advancing in employment would be
considered substantially limited.
"Life activities" may be considered to
include communication, ambulation, selfcare,
socialization, education, vocational
training, employment, transportation,
adapting to housing, etc. For the purpose of
section 503 of the Act, primary attention is
given to those life activities that affect
employability.
41 C.F.R. 60-741, Appendix A.
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"Major life activities" is further defined as "functions, such as
caring for one's self, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working." 29 C.F.R.
1613.702(c).
Brown has a physical impairment, however, his impairment
does not substantially limit one or more of his major life
activities. Three orthopedic doctors have diagnosed Brown's
knee condition as chondromalacia of the patella, yet each doctor
has also stated that Brown's condition affects only his ability
to stoop and bend repetitively. In terms of employability, the
OFCCP has not proven that Brown's impairment affects his ability
to perform any jobs other than the position of welder on the
dryer line at Cissell, which requires stooping and bending.
An impairment that interferes with an individual's ability
to do a particular job, but does not significantly decrease the
individual's ability to obtain satisfactory employment otherwise,
is not substantially limiting within the meaning of the statue.
see Jasany v. United States Postal Service, 755 F.2d 1244, 12448
(6th Cir. 1985) (citing E. E. Black, Ltd. v. Marshall, 497 F.
supp. 1088 (d. Hawaii 1980). In E. E. Black, the court
suggested that certain factors be applied in order to determine,
on a case-by-case basis, whether an impairment substantially
limits an individual's employability: the number and type of
jobs from which the impaired person is disqualified, the
geographical area to which the individual has reasonable access,
and the individual's job expectations and training. E. E. Black,
497 F.Supp. at 1100-01.
Applying these factors to this case, the result is that
Brown is not a handicapped individual within the meaning of the
statue. First, as mentioned above, all three doctors agree that
Brown's knee impairment limits him solely from taking jobs re-
quiring repeated stooping and bending. Secondly, Mr. William
Summitt, a rehabilitation vocational counselor, evaluated Brown
in December, 1984, and found that Brown experienced an overall
vocational loss of 12.57 percent. This means that Brown can
still do 87.43 percent of the jobs he was able to do prior to his
impairment. Mr. Summitt's figures are restricted to jobs in the
geographical area in which Brown lives, and take into account
Brown's job expectations and training as a welder. Thirdly,
Brown himself admits that he is able to train and ride harness
racing horses, and that he is still capable of working at the
"spider table" at Cissell. Thus, Brown's own testimony supports
a finding that his impairment is very narrowly limited to one
type of activity - bending a stooping - required in one type of
job at Cissell - the dryer line.
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For these reasons, I find that the OFCCP cannot carry its
burden of establishing the existence of an impairment that
substantially limits a major life activity as the threshold
element of its prima facie case. See Jasany, 755 F.2d at 1249.
See also Elstner v. Southwestern Bell Telephone Co., 659 F. Supp.
1328, 1343 (S.D. Tex. 1987) (knee impairment affected only
plaintiff's ability to climb telephone poles); Forrisi v. Bowen,
794 F.2d 931 (4th Cir. 1986) (acrophobia affected only
plaintiff's employment as utility systems repairer and
operator).
Since OFCCP has not shown that it can meet its threshold
requirement of proving that Brown is a handicapped individual, it
is unnecessary to address the remaining issues of whether Brown
is a qualified handicapped individual and whether Cissell met its
accommodation requirement under the Act and regulations.
Looking at all of the facts, construed in a light most
favorable to the plaintiff, I find that no genuine issue of
material fact exists in this case, and that the Defendant is
entitled to judgment as a matter of law. I find that Brown is
not a handicapped individual within the meaning of the Act and
the Motion for Summary Judgment will be granted. It is,
therefore,
ORDER
ORDERED that the Motion for Summary Judgment is GRANTED.
Judgment is hereby entered in favor of the Defendant, Cissell
Manufacturing Company, against the plaintiff, Office of Federal
Contract Compliance Programs, U. S. Department of Labor, and the
Complaint is hereby DISMISSED. The hearing scheduled for January
24, 1989 is canceled.
ROBERT L. HILLYARD
Administrative Law Judge
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SERVICE SHEET
Case No: 87-OFC-26
Case Name: Office of Federal Contract Compliance Programs,
Department of Labor v. Cissell Manufacturing Company
Title of Document: Decision and Order on Motion
for Summary Judgment
A copy of the above document was sent to the following:
Solicitor of Labor Civil Rights Division
U. S. Department of Labor Office of the Solicitor
Office of the Solicitor U.S. Department of Labor
Room S-2002, FPB Room N-2464
200 Constitution Avenue, N.W. Washington, D. C. 20210
Washington, D. C. 20210 Attn: Counsel for
Litigation
David O. Williams Jon Fleishchaker, Esq.
Office of the Special Counsel Stephen R. Price, Esq.
U. S. Department of Labor Wyatt, Tarrant & Combs
Employment and Training Administration Citizens Plaza
Room N-4671 500 West Jefferson St.
200 Constitution Avenue, N.W. Louisville, KY 40202
Washington, D.C. 20210
Office of Federal Contract Heritage Reporting
Company
Compliance Programs 1220 L Street, N.W.,
Suite 600
U. S. Department of Labor Washington, D.C. 20005
Room C-3325
200 Constitution Avenue, N.W.
Washington, D. C. 20210
Bobbye Spears, Esq.
Regional Solicitor
U. S. Department of Labor
Room 339
1371 Peachtree Street, N.W.
Atlanta, GA 20267
Carl Gerig, Esq.
Associate Regional Solicitor
2002 Richard Jones Road
Suite B-201
Nashville, TN 37215
Attn: Theresa Ball, Esq.
Cissell Manufacturing Company
831 South First Street
Louisville, KY 40202
