USDOL/OALJ Reporter
CCASE_NAME:
OFCCP V. ROADWAY EXPRESS
CCASE_NO:
80-OFCCP-5
DDATE_ISSUED:
19831129
TTITLE:
RECOMMENDED DECISION AND ORDER
TTEXT:
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U.S. DEPARTMENT OF LABOR
Office Of Administrative Law Judges
Suite 700-1111 20th Street, N.W.
Washington, D.C. 20036
. . . . . . . . . . . . . . . . . . . . .
In the Matter of :
:
UNITED STATES DEPARTMENT OF LABOR, :
Office of Federal Contract :
Compliance Programs, :
:
Plaintiff, :
: Case No. 80-OFCCP-5
v. :
:
ROADWAY EXPRESS, INC., :
:
Defendant. :
. . . . . . . . . . . . . . . . . . . . :
JAMISON ANN POINDEXTER, ESQ.
Office of the Solicitor
U.S. Department of Labor
911 Walnut Street, room 2106
Kansas City, Missouri 64106
For the Plaintiff
JOHN NELSON CHILDS, ESQ.
Buckingham, Doolittle, and Burroughs
One Cascade Plaza
Akron, Ohio 44308
For the Defendant
Before: ROBERT J. FELDMAN
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This is a proceeding for administrative enforcement of
Section 503 of the Rehabilitation Act of 1973 as amended
(29 U.S.C. 793) and pertinent regulations duly promulgated
thereunder (41 CFR Part 60-741).
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Statement of the Case
After investigation of a complaint filed by Ray L.
Baldwin (hereafter "Complainant"), the Office of Federal
Contract Compliance Programs, United States Department of
Labor, the Plaintiff above-named, issued an administrative
complaint against Roadway Express, Inc., the above-named
Defendant. The complaint alleged in substance that Defendant
was a government contractor subject to the provisions of Section
503 and had violated that section of the Act by failing to
hire the Complainant, a qualified handicapped individual, and
by applying physical job qualifications which tended to screen
out qualified handicapped individuals. alleging that attempts
at voluntary compliance had been unsuccessful, Plaintiff
sought relief of re-instatement, back wages and retroactive
seniority alleged to have been lost by Complainant.
Defendant denies that Complainant is a qualified
handicapped individual and that its refusal to hire him was
in violation of any provision of Section 503 or the regulations
promulgated thereunder. It further asserts that as an inter-
state motor carrier it is subject to the Department of
Transportation's regulations regarding the qualifications of
over-the-road drivers (49 CFR Part 391), and that its
determination with respect to hiring Complainant was in full
compliance with such regulations and with complete regard for
highway safety. Though originally denying the allegation
that Defendant was a government contractor within the meaning
of the Act, that defense was withdrawn at the outset of the
hearing upon clarification that its status as a government
contractor was based upon Section 60-741.4 of the regulations
providing for the affirmative action clause in covered
government contracts, without any requirement for the filing
of an affirmative action plan.
The case has been duly heard in accordance with the
provisions of 41 CFR 60-741.29.
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Findings of Fact
In 1977, Complainant, then about 50 years old, was
employed as a truck driver by Jack's Truck Line in Springfield,
issouri and had been so employed since 1959. While employed
by Jack's as an over-the-road driver, Complainant's duties
included the following: driving a tractor trailer 55 feet
in length, loading and unloading mail sacks weighing up to
70 pounds or more for loads up to 32,000 pounds, fixing flat
tires on the road when necessary, and hooking and unhooking
trailers. Such trailer duty consisted of unhooking air
hoses, electrical systems and the fifth wheel, as well as
cranking the dollies down by hand. He worked an average of
70 hours in an 8-day period which included an average total
of six loadings and six unloadings during such period.
In late 1966 he had taken leave of his job with Jack's
in order to go to California to care for his ill father-in-law.
While there, Complainant hurt his back while helping with the
work on his father-in-law's farm. After chiropractic treatment
had proved unsuccessful, he was referred to a physician who
put him into a California hospital where he underwent disc
surgery. He was thereafter released without limitation of
his activity. At the time of hearing some 15 years later,
Complainant believed that the name of his California physician
was Dr. Ziegler, but was not certain of that; and he had no
recollection of the name or specific location of the hospital
where the disc surgery was performed. Medical and hospital
bills having been taken care of by his mother-in-law, he had
no records from which further details might be ascertained.
In September, 1967, Complainant returned to Jack's Truck
Line and immediately resumed his full job duties. Except
for two incidents in 1969, one involving a complaint of
soreness and swelling in the sacral area and the other a
surgical procedure for a pilonidal cyst, Complainant's back
condition continued to be asymptomatic and he carried out
his duties as an over-the-road driver until his job application
to Defendant in 1977. An acute cervical and lumbar strain
in 1971 resulted from a truck accident and was not shown to
be related to the 1967 disc surgery.
Subsequent to 1977, Complainant was employed as a truck
driver and performed similar duties with Yellow Freight System
and Associated Wholesale Grocers. Both before and after
1977, he was not known by his fellow workers to complain
about back problems and was not relieved of any of the duties
of an over-the-road driver.
~4
In the last seven or eight years of his employment with
Jack's, Complainant took DOT physical examinations at the
Lowe-H' Doubler Clinic every two years. He passed successfully
and got his DOT certification card each time.
Defendant is a national trucking company and duly licensed
interstate motor carrier. In March, 1977, Complainant applied
for a job as an over-the-road driver with Defendant at its
facility in Strafford, Missouri. His initial interview was
conducted by Mr. Wright, a point relay manager, who went
over the written application with Complainant, noting the
disc removal stated therein. Complainant then had a second
interview consisting of road and written tests which he
completed successfully. On or about May 2, 1977, Complainant
was sent by Mr. Wright to the Lowe-H'Doubler Clinic in
Springfield, Missouri for a physical examination. He completed
a form at the Clinic indicating that he had a disc removed.
He was examined by Dr. H'Doubler who passed him for employment
with Defendant and gave him a Department of Transportation
(DOT) certification card.
When Complainant returned to Mr. Wright with the physical
form and DOT card he was informed that he would not be hired
because he did not qualify for Roadway's standards due to past
back problems. On May 9, 1977, Defendant issued a Directive
to the personnel at the Springfield facility that all job
applicants would be required to take a lumbar spine examination.
Thereafter Complainant was requested to submit to a back
x-ray and he then had such x-ray taken at the Springfield
Radiological Laboratory and the x-ray was reviewed by
Dr. Lowe, Dr. H'Doubler's associate in the Clinic. Dr. Lowe
reported that Complainant was not qualified as an over-the-road
driver and refused to give him DOT certification. On the
basis of Dr. Lowe's report, Defendant's Safety Director
advised Complainant that he did not qualify as an over-the-road
driver due to the condition of his back, and thereupon tore up
the DOT certification previously issued by Dr. H'Doubler.
In June, 1977, Complainant filed a complaint with the
Department of Labor and an investigation was commenced by an
Equal Employment Opportunity (EEO) Officer in Plaintiff's
Kansas City Regional Office. Extensive correspondence and
telephone communication ensued between the EEO Officer and
Defendant's Vice President for Industrial Relations. There
was some discussion of having an independent medical examination
and report, but that was not realized and no conciliation was
achieved. Subsequently it was brought out that Complainant
had failed to state in his application that he had received a
three-point speeding ticket in 1975.
~5
The parties have stipulated that if payable, Complainant's
back wages for the period from October 1, 1977 through
September 12, 1980 amount to $20,168.29.
Medical Evidence
Dr. Peterson, an internist and Complainant's personal
physician, has been aware of the fact that Complainant had
disc surgery since he first commenced treating him in 1971.
With the exception of a clinical note in 1975 to the effect
that after re-checking his back at the point of the operation,
he believed that Complainant was having a little irritation
from riding long hours in a truck, Dr. Peterson has never
known Complainant to make a complaint with regard to his back
surgery and special treatment relative thereto has never been
indicated. He has given Complainant periodic range of motion
tests and found him capable of bending normally. Dr. Peterson
finds him in the category of patients who completely recover
from laminectomy without further pain or difficulty, and
concluded that he was capable of performing the duties of an
over-the-road driver.
Dr. Sundstrom, a board-certified orthopedic surgeon,
examined Complainant to determine whether he had a disability.
His examination included a history, a clinical examination
and x-rays. He was also given a copy of Defendant's job
description for over-the-road drivers. He found that
Complainant walked and stood normally and had a normal range
of motion of the spine. Nerve roots and reflexes were
normal. Some spurring in the area of the third lumbar
disc, though an abnormal condition, was found to have little
or no functional effect. Back x-rays taken in 1980 showed
only minimal change when compared with those taken in 1971.
In terms of diagnosis, Dr. Sundstrom found a history of
lumbar disc surgery not identifiable by x-ray examination and
an aging of the third lumbar disc, which was asymptomatic.
Complainant did not have spondylolisthesis or scoliosis.
In his opinion, based on reasonable medical certainty,
Complainant was physically qualified to perform the duties of
an over-the-road driver in accordance with Defendant's job
description without endangering his health and without
experiencing any more back trouble than other truck drivers.
~6
Dr. Lowe, who practices general surgery and industrial
medicine, performs DOT physicals regularly. Although his
partner Dr. H'Doubler had conducted the physical examination
of Complainant for Defendant, Dr. Lowe received the x-rays
and referred them to the Springfield Radiological Group for
reading and report. Upon conferring with a radiologist
there, he called Defendant and said that he had found
evidence of some back disability.
Dr. Lowe had passed Complainant on a DOT physical
examination the previous year, but at that time had not taken
any x-rays. He found from the x-rays for Defendant in 1977,
however, that there was considerable lipping and spurring
(spondylosis) of the fourth lumbar vertebral and some in the
third, although there was no indication of spondylolisthesis
or scolosis. He concluded that because of the x-ray evidence
of back disability and evidence of a former myelogram,
Complainant was not qualified as an over-the-road driver
under DOT regulations. Dr. Lowe expressed the opinion that
Complainant was probably okay at the time of examination,
but was more likely than others to develop back problems if
subjected to work as an over-the-road driver.
Dr. H'Doubler, a board-certified surgeon experienced in
industrial medicine and DOT examinations, passed Complainant
on his physical examination for the job with Defendant in
ay, 1977. He later changed his mind due to what he said
was x-ray evidence of spondylitis and spondylosis in the
light of the job description for over-the-road drivers. He
believed that Complainant was more subject to back injury
and problems than a person with a normal back. subsequently,
Dr. H'Doubler passed Complainant on his DOT physical examination
for Associated Wholesale Grocers in December, 1977. Although
he testified that such action was without consideration of
any x-rays at that time, his signed report includes under
Radiological data the notation: "Back-OK."
~7
Conclusions of Law
Section 503 of the Act (29 U.S.C. 793) provides in
pertinent part as follows:
Any contract in excess of $2,500 entered
into by any federal department or agency
for the procurement of personal property
and non-personal services (including
construction) for the United States shall
contain a provision requiring that, in
employing persons to carry out such con-
tract the part contracting with the
United States shall take affirmative
action to employ and advance in employ-
ment qualified handicapped individuals as
defined in Section 706(7) of the Title.
The Section further provides for administrative enforcement
by the Department of Labor upon a complaint received from a
handicapped individual believing that any contractor has
failed or refused to comply with the above provisions.
For purposes of proceedings under Section 503 of the
Act, a "handicapped individual" is defined in 29 U.S.C.
706(7) as follows:
... any 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.
Since Defendant contends that Complainant's back condition
is a physical impairment which substantially limits one of
his major life activities (to wit, employment), and since
Complainant claims that he is regarded by Defendant as having
such an impairment, there is no question that Complainant is a
handicapped individual within the meaning of the statute and
that administrative enforcement by the Plaintiff is in all
respects authorized. The issue in controversy is whether
Complainant is a "qualified handicapped individual" whom
Defendant is obliged to take affirmative action to employ.
~8
The first question to be determined in connection with
Complainant's qualifications is that of the standards to be
applied. Defendant's contention that its rejection of
Complainant was in compliance with DOT regulations begs at
the question. Federal Highway Administration Rules for the
Qualifications of Drivers (49 CFR Part 391) do not prohibit
anyone who has a history of lumbar disc surgery from being
certified as physically qualified to drive a motor vehicle.
In accordance with Section 391.41 of those Regulations a
person is physically qualified to drive a motor vehicle, if
he
.... (7) Has no established medical history
or clinical diagnosis of rheumatic, arthritic
orthopedic, muscular, neuro-muscular or
vascular disease which interferes with his
ability to control and operate a motor
vehicle safely;
(8) Has no established medical history
or clinical diagnosis of epilepsy or any
other condition which is likely to cause
loss of consciousness or any loss of ability
to control a motor vehicle. (Emphasis supplied.)
Relevant instructions for recording physical examinations
require only that any history of pain, injuries, or disease,
past or presently experienced in the cervical or lumbar spine
region should be noted; and if findings so dictate, x-ray
should be used to diagnose defects or spondylolisthesis and
scolosis. Nothing in the DOT rules indicates that the mere
presence of any of the conditions mentioned is sufficient to
disqualify anyone. The test is whether it interferes with
control of the vehicle and thus threatens highway safety.
Essentially, the standards established under the
Rehabilitation Act are no different. A qualified handicapped
person is one who is able to meet all of a program's requirements
in spite of his handicap. See Southeastern Community College v. Davis,
442 U.S. 297, 406 (1979); Simon v. St. Louis County, Missouri, 656 F. 2d
316, 320 (8th Cir. 1981). Pertinent
~9
regulations provide at 41 CFR 60-741.6(c) as follows:
(2) Whenever a contractor applies physical
or mental job qualification requirements
in the selection of applicants or employees
for employment or other change in employ-
ment status ... to the extent that qualifi-
cation requirements tend to screen out
qualified handicapped individuals, the
requirements shall be related to the
specific job or jobs for which the indi-
vidual is being considered and shall be
consistent with business necessity and
the safe performance of the job. The
contractor shall have the burden to
demonstrate that it has complied with the
requirements of this paragraph. (Emphasis
supplied.)
Thus the Defendant had the burden of proving that the
physical requirements is imposed upon the Complainant met the
above standards. See Bentivegna v. United States Department
of Labor, 694 F.2d 619, 622 (9th Cir. 1982); E.E. Black, Ltd.
v. Marshall, 497 F.Supp. 1088, 1103 (D. Haw. 1989). Though
Defendant was clearly entitled to impose more stringent
physical requirements that the minimum qualifications set
forth in the DOT regulations, it must establish that the
tests of the Complainant's physical capacity herein is a bona
fide occupational qualification. See, e.g., Equal Employment
Opportunity Commission v. County of Los Angeles, 706 F.2d
1039 (9th Cir. 1983); United States Department of Labor v.
Ozark Airlines, No. 80-OFCCP-24 (O.A.L.J., December 7, 1982).
The principal evidence proffered in that regard is the
testimony of Dr. Lowe and Dr. H'Doubler, both of whom ventured
the opinion that although Complainant was fit enough to drive
a truck safely at the time of examination, he presented an
increased risk of future injury. Yet no credible evidence was
adduced to show that the condition of his back made him prone
to lose consciousness or control, nor to show that drivers
with histories of lumbar disc surgery had a higher accident
rate than any other drivers.
Since Dr. Lowe and passed the Complainant for a DOT
certificate only a year before, though without the benefit of
x-ray, it is evident that complainant's history did not
suggest to Dr. Lowe any necessity for further testing, and
that but for Defendant's request, disqualification would not
have ensured in May, 1977. Dr. H'Doubler certified before,
~10
during, and after Complainant's application for a job with
Defendant that he was in al respects physically qualified
to drive a motor vehicle in accordance with DOT regulations.
I attach little weight to his expression of a change of
views in the one instance in which x-ray examination was
requested by Defendant, and I find his attempted explanation
of his specific approval of his back condition on a subsequent
examination to be unpersuasive. I therefore credit the
evidence furnished by Dr. peterson and Dr. Sundstrom to the
effect that in the performance of his duties as an over-the-
road driver, the condition of Complainant's back presented
no appreciable risk of injury and that he was physically
able to drive a truck safely. I also credit Dr. Sundsrom's
professional opinion that Complainant did not have
spondylolisthesis or scoliosis. Accordingly, I conclude
that Defendant has failed to sustain its burden of proving
that the physical requirements imposed upon the Complainant
were consistent that the safe performance of the job.
Defendant suggest that the complainant was not a
qualified handicapped person because it was found after he
had been rejected that he had allegedly failed to disclose a
speeding ticket received within a three year period. Even if
it be assumed that a purported concealment of that nature
were cognizable under the Rehabilitation Act, it is clear
that he was not rejected on that ground. This proceeding is
posited on the admitted fact that Complainant was refused
employment because of a perceived physical handicap. That
the Complainant might have been rejected on some other
unrelated ground is of little moment, since the statutory
limitation of qualified handicapped individuals refers to
those handicapped persons who could satisfy all of the
legitimate physical requirements of the job. See Simon v.
St. Louis County, Missouri, supra, 656 F.2d at 320.
With respect to conciliation, I am satisfied that
reasonable efforts were made to reconcile differences prior
to institution of this proceeding. The testimony and demeanor
of Defendant's Vice President for Industrial Relations persuades
me that the failure to reach an accord was not due solely to any
intransigence on the part of Plaintiff's EEO Officer. Successful
conciliation requires flexibility on both sides of the table.
~11
Upon the entire record, I am constrained to conclude
that Defendant's refusal to employ the Complainant was in
violation of Section 503 of the Act. Unfortunately, at this
time his physical condition is not know and circumstances of
of both parties may well have changes since 1977. Consequently,
it would be manifestly unjust to direct employment. The
only practical remedy available at this stage of the proceedings
is an award of back wages in accordance with the stipulation
entered on the record at the hearing, which is substantiated
to some extent by the income tax returns and employee earning
calculations introduced by Plaintiff. Payment of back wages
will therefore be directed accordingly.
No evidence has been adduced from which any back wages
due after September 12, 1980 could be computed. The prayer
in the complaint for a direction to comply with the Act is
granted; the prayer for debarment of the Defendant denied.
ORDER
Upon the entire record herein and in view of all of the
foregoing, defendant Roadway Express, Inc. is hereby directed
to pay forthwith to Ray L. Baldwin, the Complainant herein,
back wages in the sum of $20,168.29 with interest thereon
from September 12, 1980 to date at the rate of six percent
per annum, and if not so paid within fifteen (15) days from
this date, with interest on the entire sum hereby awarded
at the rate or rates prescribed by Section 302 of the Federal
Courts Improvement Act of 1982 (P.L. 97-164) from the date
hereof until the date of payment; and said Defendant is
further directed to cease and desist from further violation
of Section 503 of the Rehabilitation Act of 1973.
ROBERT J. FELDMAN
Administrative Law Judge
Dated: November 28, 1983
Washington, D.C.
RJF/mml
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CERTIFICATE OF SERVICE
Case Name: Roadway Express, Inc.
Case No.: 80-OFCCP-5
A copy of the foregoing RECOMMENDED DECISION AND ORDER
was mailed to each of the following persons at the addresses
listed below on the following date:
Date:
By:
Jamison Ann Poindexter, Esq.
Office of the Solicitor
U.S. Department of Labor
911 Walnut Street, Room 2106
Kansas City, MO 64106
John Nelson Childs, Esq.
Buckingham, Doolittle and Burroughs
One Cascase Plaza
Akron, Ohio 44308
James Henry, Esq.
Associate Solicitor
U.S. Department of Labor
Room N-2464
200 Constitution Avenue, N.W.
Washington, D.C. 20210
