DATE: AUG 25 1994
CASE NO. 87-OFC-25
IN THE MATTER OF
OFFICE OF FEDERAL CONTRACT
COMPLIANCE PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
PLAINTIFF,
V.
MOUNTAIN BELL TELEPHONE COMPANY,
DEFENDANT.
BEFORE: THE ASSISTANT SECRETARY OF LABOR
FOR EMPLOYMENT STANDARDS
ORDER DENYING MOTION TO STRIKE;
DECISION AND ORDER OF REMAND
BACKGROUND
This case arises under Section 503 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. S 793 (1988),
and implementing regulations set forth at 41 C.F.R. Part 60-741
(1992).
Plaintiff, the U.S. Department of Labor's Office of Federal
Contract Compliance Programs (OFCCP), commenced this action in
1987
by filing an administrative complaint against Defendant, Mountain
Bell Telephone Company (Mountain Bell), on behalf of Complainant
Diana K. Clark. Mountain Bell, now a part of U.S. West
Communications, provided telecommunications services and products
as a common carrier and vendor and employed Clark at its
Albuquerque, New Mexico, office. Clark, who suffers from asthma,
complained that Mountain Bell had discriminated against her
because
of, and had failed to make reasonable accommodation for, her
handicap.
Mountain Bell initially employed Clark in 1958 as a clerk-
typist. In 1970, following several intervening promotions, Clark
was promoted to the Rates and Tariffs Department where, in 1978,
she worked as an assistant manager. The stress caused by a
change
in department management beginning in 1978 exacerbated Clark's
asthma. In 1980, Clark was transferred to a lesser paying staff
[PAGE 2]
position in Mountain Bell's Personnel Department, and in 1981 she
resigned from the company upon the advice of her physician.
On November 3, 1989, after conducting an administrative
hearing in the case, a Labor Department Administrative Law Judge
(ALJ) issued a Recommended Decision and Order (R.D. and 0.) in
which he found that, as a "qualified individual with handicaps,"
Clark was protected under Section 503 of the Rehabilitation Act
and that Mountain Bell had violated the Act by failing to make
reasonable accommodation for her handicap. OFCCP has filed
exceptions to portions of the R.D. and O.,[1] and
Mountain Bell has moved to strike those exceptions. Mountain
Bell neither excepted to the R.D. and 0. nor responded to the
substance of OFCCP's exceptions.
MOTION TO STRIKE
Mountain Bell moves to strike OFCCP's exceptions and to
enforce an oral stipulation assertedly entered into by the
parties at the hearing whereby Mountain Bell "agreed not to
introduce further evidence concerning the timeliness issue... in
exchange for the express agreement of [OFCCP] to accept the
ruling of [the ALJ] as the final Order in this case."[2]
Verified Motion at 2-3, paragraph (par.) 10. OFCCP opposes the
motion.
I have reviewed the case record in its entirety, and I find
no memorialization of such a stipulation either in the
documentary evidence submitted or in any pleading or
correspondence. Nor does the hearing transcript contain any
reference to such a stipulation. Similarly, my review of the
transcript fails to disclose any indication that Mountain Bell
limited its evidence on the timeliness issue. The absence of
reference to this stipulation before the ALJ, OFCCP's denial that
it entered into the stipulation, and Mountain Bell's failure to
supply a signed document verifying the parties' agreement
preclude me from finding that the parties actually reached
agreement on this point. Accordingly, the Defendant's motion to
strike the Plaintiff's exceptions is denied.
THE MERITS
The ALJ found that, while Complainant Clark constituted a
"qualified individual with handicaps" who was protected under
Section 503 of the Rehabilitation Act, and while Mountain Bell
violated the Act by failing to afford her reasonable
accommodation, Clark's resignation did not constitute a
[PAGE 3]
constructive discharge. Thus, Clark was not entitled to
reinstatement. The record in this case fully supports these
findings, and I adopt them. R.D. and 0. at 8-14. With regard to
the timeliness issues, the ALJ's findings are supported by the
record, and his conclusions are reasonable. Accordingly, I adopt
them. Id. at 2-6. See OFCCP v. Yellow Freight Sys.,
Inc., Case No. 79-OFCCP-7, Spec. Ass't to Ass't Sec. Rem.
Ord., Aug. 24, 1992, slip op. at 9; OFCCP v. Georgia-Pacific
Corp. dba Warm Springs Pine Plywood, Case No. 90-OFC-25, Sec.
Dec., Dec. 28, 1990, slip op. at 12-14.
OFCCP excepts to language employed by the ALJ in discussing
(1) the Rehabilitation Act's definition of an "individual with
handicaps," (2) the significance of job status on the issues of
accommodation and remedy, and (3) the effect of a failure to
mitigate damages on the issue of constructive discharge.
(1) OFCCP is correct that, in paraphrasing the Act's
exceptions to "individual[s] with handicaps," the ALJ has used
language which is overly broad in that it can be read to include
e.g., past substance abusers, previously contagious or
infected persons, or persons with contagious diseases or
infections who do not pose a direct threat to the health
and safety of others. Accordingly, the following language,
"except abusers of substances and persons with contagious
diseases which would threaten the health of others," R.D. and 0.
at 7 (final par.), is amended to conform to the precise language
set forth at 29 U.S.C. 706 (8) (B) and (C).
(2) OFCCP's contention regarding the significance of job
status also is well founded. In discussing accommodation and
remedy, the ALJ opined:
This tribunal is not inclined to give much
weight to social-status rankings, to whether
the position was or was not classified as
"management", or to any other similar
considerations in a nation in which all
citizens are intended to have equal rights
and status. No relief is appropriate for
loss of "status", unless accompanied by some
direct insult, degradation, or the like. The
reduction in income, however, is not
consistent with reasonable accommodation.
R.D. and 0. at 12 (second par.). As OFCCP notes, Exceptions at
20, determining whether employment is comparable often requires
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more than an examination of compensation. Considerations such as
job duties and responsibilities, promotion potential, working
environment, and benefits also may be relevant. Rasimas
v. Michigan Dep't of Mental Health, 714 F.2d 614, 624
(6th Cir. 1983), cert. denied, 466 U.S. 950 (1984);
Deford v. Secretary ofLabor, 700 F.2d 281, 283,
287 (6th Cir. 1983).
(3) Finally, in discussing the issue of Clark's
constructive discharge, the ALJ alluded to mitigation of damages.
The ALJ stated:
[Clark] left her final assignment for reasons
of personal preference and choice. [S)he did
not make any effort to mitigate her loss by
later returning to work, which makes it
impossible on this record, in the absence of
evidence, to determine how much she actually
stood to lose by ending her employment
finally. The defendant is accordingly found
not to have constructively discharged
[Clark], and is not responsible for what she
lost by reason of final termination of her
employment.
R.D. and 0. at 14. While the ALJ's meaning is not altogether
clear, suffice it to say that constructive discharge and
mitigation of damages are separate issues. "Constructive"
discharge assumes that the employee was not formally discharged,
the issue being whether he was forced to resign or whether he
quit voluntarily. A finding of constructive discharge requires
proving that working conditions were rendered so difficult,
unpleasant, unattractive, or unsafe that a reasonable person
would have felt compelled to resign, i.e., that the
resignation was involuntary. Unless constructively discharged, a
complainant is not eligible for post-resignation damages and back
pay or for reinstatement. In contrast, a finding of failure to
mitigate damages requires proving that an award of back pay or
damages should be reduced because of an employee's lack of
reasonable diligence in mitigating the damage caused by an
unlawful discharge. The question is whether the employee made
sufficient effort to find alternative employment pending
reinstatement. Because Complainant Clark resigned voluntarily
"for reasons of personal preference and choice," no issue of
mitigation is involved.
REMEDY[PAGE 5]
The ALJ has recommended that Clark be awarded back pay
representing the difference between her salary as a manager in
the Rates and Tariffs Department ($26,000) and her salary in the
Personnel Department ($22,300 -- 6/16/80-10/4/80; $24,400 --
10/5/80-3/31/81; $25,400 -- 4/l/81-7/3/81). OFCCP
v.Commonwealth Alum. formerly Martin-Marietta Alum. of Ky.,
Inc., Case No. 82-OFC-6, Ass't Sec. Dec., Feb. 10, 1994, slip
op. at 24 (back pay constitutes an appropriate remedy under
Section 503 of the Rehabilitation Act). The rate increases
received by Clark in the Personnel Department represent merit pay
increases of approximately nine and one half percent (10/5/80)
and four percent (4/l/81).
OFCCP excepts to the ALJ's formula, maintaining that Clark's
projected salary in the Rates and Tariffs Department should be
adjusted upward to reflect merit pay increases that she
reasonably would have received had she continued at commensurate
pay under a program to afford her reasonable accommodation.
OFCCP also maintains that Clark is due an award of prejudgment
interest. I agree on both counts. This approach comports fully
with the make-whole objective of Section 503. OFCCP v.
Louisville Gas & Elec. Co., Case No. 88-OFC-12, Ass't Sec.
Dec., Jan. 14, 1992, slip op. at 8; OFCCP v. Texas Industries,
Inc., Case No. 80-OFCCP-28, Ass't Sec. Rem. Ord., Sept. 27,
1990, slip op. at 4-7 (prejudgment interest assessed pursuant to
26 U.S.C. §6621; postjudqment interest assessed pursuant to
28 U.S.C. §1961). I find that OFCCP's method of calculating
the back pay and interest award is reasonable. See
Plaintiff's Exceptions, Appendix A.
REMAND ORDER
Stipulation No. 4 reached by the parties regarding coverage
under Section 503 does not meet the working-on-the-contract
standard adopted under Washington Metropolitan Area
TransitAuthority v. DeArment, 55 (CCH) Empl. Prac.
Dec. par. 40,507 (D.D.C. 1991) (WMATA). Since the court's
decision in WMATA represents an intervening change of law,
considerations of fairness and economy require that the case be
remanded to accord the Plaintiff with an opportunity to deal with
this issue. OFCCP v. Yellow Freight Sys., Inc., Case No.
79-OFCCP-7, Dec. and Ord. of Rem., Aug. 24, 1992, slip op. at 7-
10. See OFCCP v. RowanCompanies, Inc., Marine
Div., Case No. 89-OFC-41, Spec. Ass't to Ass't Sec. Dec. and
Ord. of Rem., May 28, 1992, slip op. at 6. Accordingly, this case
IS REMANDED to the ALJ for further proceedings consistent with
this order.
[PAGE 6]
In view of the age of this case, the parties are encouraged
to reach a voluntary settlement short of further litigation.
OFCCP v. Southern Pacific Transportation Company, Case No.
79-OFC-10A, 79-OFC-10B, 79-OFC-17, 79-OFC-19, 80-OFC-17, Dec. and
Ord. of Rem., Feb. 24, 1994, slip op. at 8-9 and cases cited.
See OFCCP v. Yellow Freight System, Inc., Case No. 84-OFC-
17, ALJ Stipulation of Settlement (1994); QFCCP v. Yellow
Freight System, Inc., Case No. 79-OFCCP-7, ALJ Consent
Decree (1993). I note that Office of Administrative Law Judges'
Settlement Judge procedures are available for this purpose.
Southern Pacific, slip op. at 9; U.S. Dept. of Labor v.
St. Regis Corp., Case No. 78-OFCCP-1, Secretary's Decision
and Order, March 2, 1994, slip op. at 11.
SO ORDERED.
Assistant Secretary for
Employment Standards
[ENDNOTES]
[1]
OFCCP's November 20, 1989, motion for an extension of time in
which to file its exceptions hereby is granted, and its
exceptions are accepted for filing.
[2]
A period of seven years separated Clark's complaint filed with
the Director of OFCCP, 41 C.F.R. S 60-741.26, and the OFCCP
Solicitor's complaint affording Mountain Bell an opportunity for
a hearing before an ALJ. 41 C.F.R. S 60-741.29. In addition to
challenging this delay, Mountain Bell asserted that OFCCP
unreasonably delayed its investigation of Clark's complaint.
