USDOL/OALJ Reporter
CCASE_NAME:
OFCCP V. BURLINGTON NORTHERN RAILROAD
CCASE_NO:
81-OFCCP-21
DDATE_ISSUED:
19810701
TTITLE:
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
TTEXT:
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U.S. Department of Labor
In the Matter of
OFFICE OF FEDERAL CONTRACT
COMPLIANCE PROGRAMS, U.S.
DEPARTMENT OF LABOR
Plaintiff
v. Case No. 81-OFCCP-21
BURLINGTON NORTHERN RAILROAD
COMPANY, SUCCESSOR TO
BURLINGTON NORTHERN, INC .,
Defendant
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Statement of the Case
On July 1, 1981, the Office of Federal Contract Compliance
Programs, United states Department of Labor (OFCCP) failed an
administrative complaint pursuant to section 503 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C 793 (Supp. V.,
1970 ed.) and the regulations, 41 C.F.R. Part 60--741, promulgated
pursuant thereto. The OFCCP brought this action in order to
restrain the Defendant, Burlington Northern Inc. from withholding
employment, lost wages and other benefits due Robert Geis under the
provisions of the Rehabilitation Act.
On July 31, 1981 the Defendant, Burlington Northern, Inc.
filed an Answer in the above-captioned matter. The Defendant
specifically denies that it discriminated against Robert Geis, a
qualified handicapped individual, in any manner. As an affirmative
defense, Paragraph 10 of the Answer alleged that during the period
of his employment with Burlington Northern, Inc., "Robert Geis was
never employed to carry out or perform any work under any contract
between the defendant and the United states. For his reason, the
Rehabilitation Act of 1973 is inapplicable to the allegations
contained in the Administrative Complaint, and the Department of
Labor has no jurisdiction over the subject matter of this action."
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Motion for Summary Judgment
Defendant's Position
On August 17, 1981, the Defendant filed a Motion for Summary
Judgment pursuant to the provisions of 41 C.F.R. 60-30.23(b).
This Motion was based upon the affidavits accompanying the Motion,
the Statement of Uncontested Facts, and the Answer filed previously
in this case. The Defendant argues that these documents establish
that Robert Geis was never employed by Defendant to carry out or
perform any work under any contract between the Defendant and the
United states. Therefore, the Rehabilitation Act of 1973, 29
U.S.C. 793 confers no jurisdiction over the subject matter of this
action .
More specifically, the Defendant makes two arguments. First,
Robert Geis was never employed to work under any government
contract. Second, there were no contracts in excess of $2,500
entered into by Defendant with any federal department or agency
from June 21, 1977 to March 12, 1979 in the Havelock, Nebraska
aterial Department where Robert Geis was employed.
In support of its argument, Defendant relies upon Office of
Federal Contract Compliance Programs, United states Department of
Labor v. Western Electric Company, 80-OFCCP-29 (Order Granting
Defendant's Motion to Dismiss, March 4, 1981). In that case, the
Administrative Law Judge held that the enforcement power conferred
by Section 503(b) of the Rehabilitation Act, 29 U.S.C. 793(b) was
limited by the jurisdictional scope of Section 503 (a), 29 U.S.C.
793 (a). Under Section 503:
(a) Any contract in excess of $2,500 entered into by any
Federal department or agency for the procurement of personal
property and nonpersonal services (including construction) for the
United states shall contain a provision requiring that, in
employing persons to carry out such contract the party contracting
with the United states shall take affirmative action to employ and
advance in employment qualified handicapped individuals as defined
in section 706(6) of this title. The provisions of this section
shall apply to any subcontract in excess of $2,500 entered into by
a prime contractor for the procurement of personal property and
nonpersonal services (including construction) for the United
states. The President shall implement the provisions of this
section by promulgating regulations within ninety days after
September 26, 1973.
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(b) If any handicapped individual believes any contractor has
failed or refuses to comply with the provisions of his contract
with the United states, relating to employment of handicapped
individuals, such individual may file a complaint with the
Department of Labor. The Department shall promptly investigate
such complaint and shall take such action thereon as the facts and
circumstances warrant, consistent with the terms of such contract
and the laws and regulations applicable thereto.
In other words, the OFCCP's enforcement power only extends to
employees and potentiaL employees who perform work relating to a
qualifying contract (i.e., in excess of $2,500) between the
employer and the United states. Therefore, the OFCCP had no
jurisdiction under 503(b) of the Act where the employee was not
actually performing work under a government contract between the
Defendant and the United states. In the Western Electric case the
Defendant admitted that no government contracts were performed at
the job site during the time period in question where the alleged
discrimination occurred.
Plaintiff's Position
In Rebuttal, the Plaintiff argues that the Motion for Summary
Judgement should be denied because the Motion is based upon a
conclusion of law drawn from material facts which are in dispute.
Plaintiff states there is no admission that Robert Geis did not
perform work related to carrying out a federal contract. In fact,
Plaintiff argues that Robert Geis' work as a freight car repairman
was necessary to Defendant's performance under any government
contract for the transporting of materials by freight car. An
affidavit submitted by Plaintiff states that Defendant had tender
quotations on file with the Department of Defense and General
Services Administration in excess of $2,500.00.
For support, Plaintiff relies upon United Biscuit Company of
America, Inc. v. wirtz, 359 F.2d 206 (D.C. cir. 1965) cert. den. 86
S. Ct. 1861, 384 U.S. 971 (1966), and Office of Federal contract
Compliance Programs, United states Department of Labor v. Graves
Truck Lines, Inc., 80-OFCCP-2 (April 16, 1980). Plaintiff
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argues that Graves Truck Lines establishes that, for jurisdictional
purposes in Section 503 cases, the most pertinent inquiry is the
trade realities of conducting business in the market for the goods
and services the goverment is procuring. In the instant case,
Plaintiff states that, first, the tender quotations have resulted
in an on-going business relationship between the Defendant and the
government. Second, the activities of Robert Geis were essential
and directly related to the fulfillment of Defendant's obligations
to the govermnment.
ISSUE
Whether the Plaintiff has made sufficient allegations in its
Administrative Complaint and in affidavits in support thereof to
withstand Defendant's Motion for Summary Judgement which is based
upon lack of subject matter jurisdiction under 503 of the
Rehabilitation Act of 1973?
This issue involves the following two inquiries:
(A) Whether Defendant is a qualified government contractor?
(B) Whether Robert Geis was performing work under a goverment
contract at the time of his employment?
DISCUSSION
A
It is well established that where jurisdiction is based upon
a federal statute, the plaintiff has the burden to plead and prove
facts sufficient to establish jurisdiction. Under the Federal
Rules of Civil Procedure, Rule 56 (c), Summary Judgment shall be
rendered "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact...."
In the case at hand, the OFCCP alleged that the Defendant is
a government contractor within the meaning of the Rehabilitation
Act and is now and has been subject to the contractual obligations
imposed on Government contractors and subcontractors by the
Rehabilitation Act. The OFCCP also alleged that Defendant has had
50 or more employees and contracts with the Federal Government for
the furnishing of services, which have an annual volume of $50,000
or more.
In support of these allegations, the OFCCP submitted an
affidavit of an OFCCP investigator. The investigator stated that
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the Defendant had tender quotations on file With the Department of
Defense and with the General Services Administration in excess of
$2,500.00 Citing Graves Truck Lines, Inc., Plaintiff argues that
tender quotations or purchase order agreements in excess of $50,000
are sufficient to make the Defendant a qualified government
contractor. Conversely, the Defendant has submitted affidavits in
support of its Motion for Summary Judgment which state that there
were no contracts in excess of $2,500 entered into by Defendant
with any federal department or agency for the procurement of
personal property and nonpersonal services (including construction)
for the United states.
It is obvious from the conflicting affidavits that there is a
genuine issue of a material fact whether the Department is a
qualified government contractor within the meaning of 503 (a) of
the Rehabilitation Act of 1973 .
B
Because the above material fact is in dispute, it is unnecessary to
address, in detail, the second issue, i.e., whether Robert Geis was
performing work under a government contract at the Havelock,
Nebraska job site in his capacity as a freight car repairman.
Suffice it to say, there is no admission in the record that Robert
Geis was not performing work under a government contract as there
was in the Western Electric case. However, the OFCCP does not have
jurisdiction to bring an enforcement action against a government
contractor merely because the employer has outstanding government
contracts. western Electric. Again, conflicting affidavits
submitted by the parties indicate that whether Robert Geis was
employed to perform work under a government contract can only be
established after all of the employment evidence is examined.
Pertinent to this inquiry is, inter alia, the nature of the
employee's work, the specific type of government contracts, and the
relationship between the work done and the specific government
contracts. Graves Truck Lines, Inc.
For the foregoing reasons, it is hereby ORDERED that
Defendant's Motion for Summary Judgment is DENIED.
EVERETTE E. THOMAS
Associate Chief Judge
Dated: 2 FEB 1982
Washington, D.C.
EET: jeh
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SERVICE SHEET
Case No. 81-OFCCP-21
Case Name: OFCCP v. Burlington Northern Railroad Company
I certify that a copy of the foregoing ORDER DENYING DEFENDANT'S
OTION FOR SUMMARY JUDGMENT was sent to the following individuals
on 2 FEB 1982.
Secretary
alinda B. Schoeb, Esq.
Regional Solicitor
U.S. Department of Labor
911 Walnut street
Kansas city, Missouri 64106
Kenneth C. Stephan, Esq.
Knudsen, Berkheimer, Beam
Richardson & Endacott
1000 NBC Center
Lincoln, Nebraska 68508
James D. Henry
Associate Solicitor
U.S. Department of Labor
Room 2106, 911 Walnut street
Kansas City, Missouri 64106
Edith Barnett
Counsel for Regional
OFCCP Litigation
U.S. Department of Labor
Room 2106, 911 Walnut Street
kansas city, Missouri 64106
