USDOL/OALJ Reporter
CCASE_NAME:
(DOL)OFCCP v. CENTRAL POWER & LIGHT COMPANY
CCASE-NO:
820OFC-5
DDATE_ISSUED:
19870330
TTITLE:
RECOMMENDED DECISIONS
TTEXT:
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Office of Administrative Law Judges
1111 20th Street, N.W.
Washington, D.C. 20036
DATED: MARCH 30, 1987
CASE NO. 82-OFC-5
IN THE MATTER OF
THE DEPARTMENT OF LABOR, OFCCP,
Plaintiff
v.
CENTRAL POWER & LIGHT COMPANY,
Defendant
BEFORE: E. Earl Thomas
Deputy Chief Judge
RECOMMENDED DECISION
Statement of the Case
This proceeding arises under Section 503 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. (1975) (the
Act ) and the regulations promulgated thereunder at 41 C.F.R.
Part 60-741 and Part 60-30. Plaintiff, the Office of Federal
Contract Compliance Programs, U.S. Department of Labor (OFCCP),
initiated this proceeding on August 17, 1982 by filing an
Administrative Complaint claiming that since January 1, 1979,
defendant, Central Power and Light Company (CP&L) has violated
the Act and its regulations by failing and refusing to comply
with the affirmative action clause of its contracts with the
federal government.
Specially, plaintiff alleges that defendant refused to
employ certain handicapped individuals, misused the results of
medical examinations, applied physical job qualification
requirements which tend to screen out qualified handicapped
individuals, which are not job-related and are not consistent
with business necessity and job safety, and failed and refused to
make reasonable accommodations to the physical limitations of
qualified handicapped individuals. Plaintiff seeks placement of
these individuals with defendant, as well as back wages and/or
fringe benefits for these individuals. Plaintiff seeks an order
enjoining defendant from violating the Act.
In its Administrative Answer, defendant denies the above-
noted allegations and raises several defenses: that plaintiff
failed to comply with the conciliation procedures required by 41
C.F.R. 60-741.26; that the scope of plaintiff's investigation
was limited to defendant's home office at Corpus Christi, Texas,
thus this proceeding must be limited to matters regarding the
home office; that the individuals in question are not handicapped
individuals" under the Act; that the Act is unconstitutionally
vague; and that the medical examinations were job-related and
consistent with business necessity.
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Hearings concerning this matter were held on February 26
and 27, 1985, and October 22, 1985. Evidence concerning nineteen
applicants to CP&L was presented. Defendant submitted its post-
hearing brief on March 20, 1986 and plaintiff submitted its post-
hearing brief on March 27, 1986. The parties also complied with
a series of post-hearing informational exchanges ending on
November 26, 1986.
Issues
1. Has plaintiff complied with the conciliation requirement
of 41 C.F.R. 60-741.26?
2. Should this proceeding be limited to incidents occurring
at defendant's Corpus Christi office?
3. Are the nineteen individuals handicapped as defined by
Section 503 of the Act?
4. Are the nineteen individuals qualified handicapped
individuals as defined by Section 503?
5. Are defendant's physical job qualification requirements
job-related, and consistent with business necessity and job
safety?
6. Is the Act unconstitutionally vague?
Findings of Fact
Defendant is a corporation engaged as a public utility
company with offices throughout southern Texas and its principal
office is in Corpus Christi. It is a government contractor
within the meaning of Section 503 and is subject to the
contractual obligations imposed by Section 503. (Defendant's
Administrative Answer).
As part of defendant's hiring process, applicants for
certain positions are required to undergo a physical examination.
Defendant extended offers of employment to all nineteen
individuals and then retracted them when the results of their
physical were made known to defendant. It's clear that the
results of the physical examinations were the bases for denying
of the physical examinations were their bases for denying the
nineteen individuals positions with CP&L.
The following individuals sought and were denied the CP&L
positions indicated: Betty DeLoach, PBX Operator; David Tolbert,
Groundsman; Mario Garcia, Electrical Technician; Vincent
Casanova, Print Shop Employee; Mark Chadd, Instrument Man on
Survey Crew; Josue Flores, Meter Reader; Gilbert Graza, Lineman;
Andres
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Gonzalez, Custodian; Ralph A. Horine, Mail Clerk; Ralph E.
Horine, Store helper; Reuben Lara, Meter Reader; Gilbert Lopez,
Serviceman Trainee; Paul Martinez, Mechanic, Samuel Mendez, Meter
Reader; Jose Morena, Engineer; Gilbert Rodriguez, Jr., Printer;
Victor Sanchez, Custodian; John Worchester, Cableman Charles
Garcia, Mail Clerk.
Issue No. 1
Has plaintiff complied with 41 C.F.R. 60-741.26?
The regulations governing general enforcement and complaint
procedures for violations of section 503 of the Rehabilitation
Act of 1973 require that "where an investigation indicates that
the contractor has not complied with the requirement of the Act
or this part, efforts shall be made to secure compliance through
conciliation and persuasion within a reasonable time." 41 C.F.R.
60-741.26 (g)2. In Defendant's Administrative Answer,
defendant asserts that plaintiff did not make conciliatory
overtures to defendant in order to secure defendant's compliance
with the Act.
The evidence, however, reveals that OFCCP representatives
Larry Garza and Gloria Almarez with CP&L representatives on July
31, 1981 in order to discuss a remedy for the violations. Within
fifteen minutes the parties had reached an impasse. Plaintiff
insisted that the defendant employ and provide back pay to each
individual affected by defendant's alleged violations of the Act.
Defendant, while willing to consider employing some of the
individuals affected by defendant's alleged violations of the
Act. Defendant, while willing to consider employing some of the
individuals, refused to consider back pay for any of the
individuals. Thus, conciliation efforts were made. The fact
that these efforts were unsuccessful or that the parties realized
within fifteen minutes that they would be unsuccessful does not
negate the fact that plaintiff, in good faith, attempted
conciliation as required by 41 C.F.R. 60-741.26.
Issue No. 2
Should this proceeding be limited to incidents
occurring at defendant's Corpus Christi office?
The initial investigation of the facts giving rise to this
case dealt with twenty-six individuals who had applied to the
Corpus Christi office of CP&L. Consequently, the conciliation
efforts referred to above were made with regard to these twenty-
six individuals. Not all of the nineteen individuals that
plaintiff has presented as having been injured by defendant's
hiring practices, however, are among these twenty-six who were
the subject of the July 31, 1981 meeting. Thus defendant asserts
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that even if it is found that conciliatory efforts within the
meaning of 41 C.F.R. 60-741.26 were made with respect to the
Corpus Christi applicants, there was no conciliation in the cases
of the other applicants. Defendant concludes that, therefore,
plaintiff may not be granted relief for individuals not
identified in the original investigation.
Defendant's reading of the regulation as a strict and
mandatory requirement is unwarranted, There is no indication
that 41 C.F.R. 60-741.26(g) (2) is a jurisdictional requisite.
Furthermore, in the context of this case, where within fifteen
minutes the parties' negotiating positions were clearly
delineated and just as clearly polarized, requiring conciliation
with regard to persons not named in the initial investigation
would be tantamount to requiring the parties to act out a
fruitless formality. Lastly, the conciliation efforts dealt with
the same type of alleged violations of the affirmative action
clause presented in the cases of applicants to other CP&L
offices. Defendant was thus fully aware of the type of conduct
being investigated and of its potential liability.
Issue No. 3
Are the nineteen individuals handicapped as defined by
Section 503 of the Act?
A "handicapped individual" for the purposes of Section 503
is "any person who (A) has a physical or mental impairment which
substantially limits one or more of such person's major life
activities, (B) has a record of such impairment, or (C) is
regarded as having such an impairment." 29 U.S.C. 706(6).
Section 503 and the regulations present a broad definition
of "handicapped individual." Included within the parameters of
that term are those individuals who the employer merely perceives
as being handicapped but who actually have no physical or mental
impairment. 41 C.F.R. 60-741.2, Appendix A (1985); S. Rep. No.
1297, 93rd Cong., 2d Sess. (1974), reprinted in 4 U.S. Code Cong.
& Ad. News 6389-90. The term physical impairment was defined in
E.E. Black, Ltd. v. Marshall, 497 F.Supp. 1088 (1980) as a
"condition which weakens, diminishes, restricts or otherwise
damages [an individual's] health or physical . . . activity."
Id. at 1097. Included in the concept of a physical impairment
that substantially limits one or more of an individual's major
life activities is a condition causing that individual "to
experience difficulty in securing, retaining or advancing in
employment." 41 C.F.R. 60-741.2, Appendix A (1985).
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Defendant perceived the various physical conditions of the
applicants to be weakening, diminishing and restricting their
physical activity at work. Due to defendant's perception, the
nineteen applicants were not hired. Defendant regarded the
applicants as having a physical impairment which substantially
limits one or more major life activities. Consequently, all
nineteen applicants are handicapped as defined by Section 503(c)
of the Act. See E.E. Black, Ltd.
Issue No. 4
Are the nineteen individuals qualified handicapped
individuals as defined by Section 503?
The term "qualified handicapped individual" is defined in
the 503 regulations as meaning a "handicapped individual as
defined in 60-741-2 who is capable of performing a particular
job with reasonable accommodation to his or her handicap." 41
C.F.R. 60-741-2. Plaintiff bears the burden of proving that
each of these nineteen individuals were qualified handicapped
individuals. See e.g., Puskin v. Regents of University of
Colorado, 658 F.2d 1372 (10th Cir. 1981). Plaintiff must show
that at the time of the individual's application, he or she was
capable, with reasonable accommodation, of performing the job
applied for. E.E. Black, Ltd., 497 E.Supp. at 1103 (1980).
Plaintiff's evidence tending to prove this point consists of
the work histories of each of the applicants as well as the
testimony of Dr. Hyman P. Roosth. Dr. Roosth conducted an
orthopedic examination of each applicant. He was apprised of the
position which each applicant sought with CP&L and knew the
physical requirements of each of those positions. Based on his
exam of each applicants, which I find to have been more thorough
than Dr. John Paul Schulze's exams, the medical histories which
he took, and the job description information he secured, Dr.
Roosth rendered the opinion that each of the applicants had the
current capacity to perform the work for which they applied.
On the basis of Dr. Roosth's testimony as well as the
evidence regarding the applicants' work histories, I find that
plaintiff has shown that the applicants are qualified handicapped
individuals.
The evidence regarding each applicant's ability to perform
the job for which he or she applied is summarized below. The job
for which he or she applied is summarized below. The job
requirements for each position at issue were drafted by CP&L and
are attached to this Decision and Order as Attachment A and
incorporated herein by reference. Reasonable accommodation
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has not been discussed because I have found the applicants to be
qualified handicapped individuals even without any accommodation
by the employer.
Once plaintiff has shown that an applicant is a qualified
handicapped individual, defendant has the burden of rebutting
this showing. Defendant's only evidence on this issue consists
of the testimony of Dr. John Paul Schulze (The testimony of Dr.
Lawrence Wilk and Don Daniel goes to the issue of whether the
physical were job related and warranted by business necessity and
will be discussed in relation to that issue). Dr. Schulze's
testimony is not sufficient rebuttal evidence however because his
assessment of whether an individual qualified for employment by
CP&L is based on whether certain preestablished CP&L causes of
disqualification are found. For example, whenever an applicant
is found to have one of the eight back conditions listed in
Appendix A, that applicant is disqualified. Dr. Schulze makes no
medically based determination of the applicant's capability to
perform the job applied for. He does not test the applicant's
physical ability and evaluate it in light of CP&L job
requirements. Thus, defendant has no persuasive rebuttal
evidence when plaintiff establishes that an applicant is a
qualified handicapped individual.
Betty DeLoach: Betty DeLoach applied for the position of PBX
operator with CP&L. A PBX operator is required to work a
switchboard, answer telephone calls and make announcements. CP&L
has no specific physical requirements for this position other
than the individual must be able to operate a PBX switchboard
machine. See Appendix A. DeLoach has been a telephone operator
for over 25 years and at the time she applied to CP&L for a
position as a PBX operator, she was already working at CP&L as a
Kelly Services temporary in the capacity of PBX operator.
Defendant, finding DeLoach's work satisfactory, offered her a
permanent position with CP&L.
She was ultimately rejected for employment, however, on the
basis of the results of the October 8, 1979 physical exam she was
required to take. The diagnosing physician, Dr. John Paul
Schulze, found that DeLoach suffered from "severe uncontrolled
diabetes" and was obese. He also rendered the opinion that a
person with controlled diabetes is capable of performing the job
of PBX operator.
In light of the fact that DeLoach had previously worked as a
PBX operator, has since worked as a PBX operator, and at the time
of her application was satisfactorily performing the job of PBX
operator for defendant, I find that plaintiff has proven that
when she applied to CP&L, she was capable of performing the job
of PBX operator. DeLoach is thus a qualified handicapped
individual.
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Defendant's rebuttal evidence consists of Dr. Shulze's
testimony that DeLoach's "uncontrolled diabetes was probably a
chronic problem" and consequently he felt that "she was unfit for
employment regardless of what her job description was." Dr.
Schulze's medical opinion as to DeLoach's ability to work as a
PBX operator lacks authority, however, because he did not take
into account DeLoach's work history as a PBX operator.
/furthermore, his opinion does not override the facts -- DeLoach
obviously has the ability to perform the job of a PBX operator
because she has been doing so satisfactorily even to the extent
that defendant offered her a permanent position.
David Tolbert: On April 12, 1982, David Tolbert applied for the
position of groundsman with CP&L. Tolbert was not hired as a
result of the outcome of his physical with Dr. Schulze. It was
found that Tolbert was obese and had controlled diabetes.
As a groundsman Tolbert would be required to perform general
labor work. Both before and after Tolbert's application to CP&L,
he was employed as a laborer in such jobs as laborer or labor
foreman with Omni Fabricators and Baker Marine, an offshore
drilling concern, and laborer for Spaw-Glass Construction.
Company and then Durdan-Fulton Construction. Given Tolbert's
work history I find that he was an otherwise qualified
handicapped individual because it is clear that he was capable,
with no accommodation, of performing the duties of a groundsman
at the time he applied to CP&L.
Defendant's rebuttal evidence was Dr. Schulze's testimony
that Tolbert was disqualified on the basis of obesity. Although
it is not directly stated, this can be taken as Dr. Schulze's
opinion that Tolbert was incapable of performing the job of
groundsman. However, as in the case of DeLoach, Schulze did not
evaluate Tolbert's capabilities in relation to the job duties
because he wasn't informed about the job duties. Furthermore,
Tolbert had demonstrated his ability to perform the duties of a
groundsman by work history. Consequently, I find that Tolbert is
a qualified handicapped individual.
ario Garcia: In April of 1981, Mario Garcia applied for the
position of electrical technician at CP&L. Although defendant
told Garcia that CP&L would like to hire him, he was not hired
because defendant discovered that Garcia has red-green color
deficiency. Defendant believed that Garcia would be unable to
differentiate between different colored wires, which is necessary
for an electrical technician.
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Before applying to CP&L, Garcia worked as an electronic
technician, repairing equipment and maintaining floor production
at TRW Resistors Staples and when he did not get the position at
CP&L, he returned to TRW Resistors Staples and had similar job
functions. In the course of his employment, Garcia has had
similar job functions. In the course of his employment, Garcia
has had to contend with color-coordinated schematics and
equipment. And as an electrical technician at CP&L, he would
have had to work with pneumonical equipment and troubleshoot, and
repair electrical equipment entailing some work with color.
Garcia has dealt with any difficulty he may have in
differentiating among different colored wire the way anyone in
his job would distinguish them. He does a continuity check with
a meter. Furthermore, he had been taught that it is standard
practice to double check connections with meters. Consequently,
I find that at the time Garcia applied to CP&L he was capable of
performing the job of electrical technician and is thus an
otherwise qualified handicapped individual.
Defendant has not rebutted plaintiff's evidence. In fact,
Dr. Schulze recommended Garcia for employment as a meterman
technician.
Vincent Casanova: Sometime in 1979, Vincent Casanova applied for
a position as print shop employee with CP&L. He took the
required physical exam and Dr. Schulze found that Casanova had a
"Class 5" back and was obese. "Class 5" back in this instance
means spondylolysis at L-5 which disqualifies an individual from
employment at CP&L, thus, Casanova was not hired.
DeFendant's job requirements for printers include the
physical ability to lift, move, and carry materials and equipment
weighing up to an exceeding 75 pounds. (See Appendix C).
Both before and after Casanova applied to CP&L he had
exhibited the capability to perform the job of printer. He has
been and continues to be active in school football team and,
after applying to CP&L, playing three years of semi-professional
football. Presently he plays softball and regularly lifts
weights. His jobs have all required the abilities required by
CP&L of a printer. He worked at a refinery as a laborer digging
trenches and doing carpentry. He worked at a bank as a mail
clerk which entailed lifting heavy sacks of mail. He was also in
the Marine Corps Reserve for a four-year period which entailed
his going through the strenuous exercises of boot camp. Since
his application, Casanova has worked as a laborer at a food
warehouse. His duties consisted of manually loading trucks with
cases of 50 to 80 pounds. For a two-month period he worked for a
drilling company in which his job entailed moving heavy pipe.
Accordingly, I find that Casanova is an otherwise qualified
handicapped individual.
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Dr. Schulze disqualified Casanova on the basis of the X-ray
reading. he did not know Casanova's work history. He stated
that Casanova's back condition is a pre-established cause of
disqualification. A determination on capability made in the
manner Dr. Schulze made his assessment is not persuasive rebuttal
evidence on the question of whether Casanova is a qualified
handicapped individual.
Stephen Chadd: In July of 1980, Stephen Chadd applied for the
position of instrument man on the survey crew at CP&L. He was
not hired because the physical exam revealed that he had a
"class 4-5" back. There was a narrowing of L-5 and S-1
associated with unilateral sacralization of the L-5. He was also
found to have Scheuermann's disease, an abnormality of the back
similar to an arthritis deformity and he had heart murmurs along
with a history of rheumatic heart disease.
The job requirements for a surveyor are the same as those
defendant lists for a printer -- basically, the physical ability
to lift and carry loads up to and exceeding 75 pounds routinely.
Both before and after applying to C&PL, Chadd had worked on
a survey crew either as a rodman chainman Chadd applied for the
position of instrument man at CP&L he was capable of performing
the job and thus is an otherwise qualified handicapped
individual.
Josue Flores: Josue Flores applied for the job of meter-
reader or linemen with defendant in January of 1982. At this job
interview, defendant told Flores that he'd be hired as a lineman
if he passed the physical. The results of the physical showed
that Flores had spina bifida S-1, transitional vertebra and L-5
spondylolysis without spondylolisthesis. The job requirements
for a meter-reader are the same as those noted above with respect
to the jobs of printer and surveyor.
The job requirements for a lineman include the physical
ability to climb poles and structures over 60 feet high using
standard climbing hooks on a routine basis; to stand and work
period of time, in extreme conditions; strength, ability and
balance in order to deal with emergencies while up on a pole or
structure; ability to handle heavy equipment and line hardware
while working from the ground, truck bed or aerial device;
assembling parts using large hand powered tools; hand digging
pole holes and ditches for installing electrical equipment and
back filling same.
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Before he applied to CP&L, Flores worked as a shipping
clerk, and since he applied to CP&L, he has continued to work
in this capacity. Working as a shipping clerk entails the
handling of boxes weighing up to approximately 70 pounds.
Thus, according to defendant's job requirements, Flores has
the capability of working as a meter-reader.
Plaintiff has also shown that Flores is capable of working
as a lineman. As a shipping clerk Flores demonstrated the
ability to do work comparable to that required of a lineman.
Both jobs require physical labor involving an equivalent amount
of stress on the back. Therefore, I find that Josue Flores is
a qualified handicapped individual.
Gilbert Garza: On July 7, 1981, Gilbert Farza applied for the
position of lineman with CP&L. He was told he had the job but
was not hired when results of his physical were unsatisfactory.
Dr. Schulze, the examining physician, noted that Garza had an
"unsatisfactory back" and "multiple defects which disqualify"
Garza for employment with CP&L.
Before applying at CP&L, Garza had been in the Navy, had
worked for City Transit in maintenance, had been a meter-reader
and had worked for Anderson's Mobile Homes as a maintenance
man. After Garza's application to CP&L he worked as an auto
mechanic and at the time of the hearing was an apartment manager
with maintenance responsibilities. Garza also climbed a pole
prior to applying.
The job requirement of a lineman are noted above. The
evidence indicates that Garza was capable of performing the job
of a lineman. He showed he was able to climb a pole and the
jobs he has held have entailed some strenuous physical activity.
As in the case of Flores, defendant has not carried its burden
of proving that Graza was incapable of performing the job of
lineman. The only evidence that defendant has put on concerning
Garza's capability of performing the job is the testimony of
Dr. Wilk that because of his back defects Garza may at some
point have difficulty carrying out the duties of a lineman
because his back may cramp or go out. This, however, does not
prove that Graza lacks the current capability to fill the
position. Since it has not been shown that Graza was incapable
of working as a lineman when he applied at CP&L, Garza is an
otherwise qualified handicapped individual.
Andres Gonzales, Jr.: In November of 1981, Andres Gonzales,
Jr., applied for the position of power plant trainee at the
Loredo District Office of CP&L. He took the physical exam and
was found to have bilateral spondylolysis of L-5. He therefore
was not hired.
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The job requirements for the position of power plant
trainee include the ability to climb stairs, catwalks, gratings
and structural steel at elevations of 150 feet on a continuous
basis, as well as work from these structures for an extended
period of time, sometimes using a safety belt or lanyard around
the waist. Such work includes extreme reaching, stretching,
pushing, pulling, lifting and carrying heavy equipment and
tools, as well as manually assembling, disassembling and using
large pieces of equipment. (See Appendix A).
Prior to Gonzales' application to CP&L, he had worked as
a cashier and stockboy at a convenience store handling boxes up
to 60 pounds and as a bank teller whose duties included pushing
a cart full of approximately 100 pounds of coins. After his
application at CP&L, he worked as a cashier at a restaurant,
briefly as a commercial teller, and at the time of the hearing
was working as a manager trainee for a restaurant.
Plaintiff has shown that Gonzales has the capability of
performing the duties of a power plant trainee. Gonzales' jobs
as a stockboy and a bank teller involved physical efforts that
are roughly comparable to the efforts required of a power plant
trainee. I find that Gonzales is a qualified handicapped
individual.
Ralph A. Horine
In October of 1979, Ralph Austive Horine applied for the
position of mailroom clerk with CP&L. Although he indicated on
his application form that he was applying for the position of
trainee, he was considered for the job of mailroom clerk. He
was told that most likely he would get the job but that he had
to take the physical. The physical noted that A. Horine had a
Class 5 back of the basis of X-Rays revealing bilateral
spondylolysis at the L-5-S-1 level with some spondylolisthesis.
The job requirements of a mailroom clerk are the same as
those listed above with regard to the positions of printer and
surveyor.
Prior to A. Horine's application at CP&L he worked at a
fast-food restaurant. Since his application to CP&L he has
worked as a maintenance man for certain apartment complexes and
as a glass installer at Thurmon-Fondren Glass Company and in
shipping and receiving with B.D. Holt Company as well as other
positions.
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Plaintiff has proven that A. Horine has the capability of
handling materials weighing in excess of 75 pounds as required
by the job requirements for the position of mailroom clerk at
CP&L. His job as a glass installer and in shipping and receiv-
ing respectively have involved manually handling 125 pound
pieces of glass and up to 100 pounds of equipment. Therefore,
I find that A. Horine is a qualified handicapped individual.
Ralph E. Horine *
Ralph E. Horine had been employed by CP&L for approximately
twenty-three years when as a result of an on-the-job back injury
he was discharged. He underwent surgery to repair his herniated
disc. Dr. Eugenio performed the laminectomy. Respondent
refused to reinstate E. Horine to his position of senior
storekeeper after he had recovered from the surgery.
Respondent requested that E. Horine see Dr. Schulze. Dr.
Schulze and Dr. Eugenio restricted E. Horine to lifting 50-60
pounds or less. Since a storekeeper is required to be able to
lift 70 pounds or more, E. Horine was not rehired.
Since his surgery, E. Horine has worked for a printing firm
operating a camera, blue-line machine and a press.
Although plaintiff challenges the validity of the 50 to
60-pound limitation, even given that limitation I find that E.
Horine is capable of performing the job of storekeeper with
reasonable accommodation by CP&L. This is the only instance
where the issue of reasonable accommodation has been raised
because, unlike the other applicants, I find that E. Horine
does not have the capability to meet the job requirements.
With very little accommodation, however, he would be able to
meet the physical requirements for a storekeeper's position.
He is capable of lifting up to 50-60 pounds and in order
to lift anything that weighs more, E. Horine can simply use a
mechanical lifting device or secure the help of another employee.
This apparently had been his practice, for 23 years at CP&L,
whenever he needed to lift an object that was too heavy for him
to lift alone. Such accommodation is not overly burdensome to
CP&L and therefor, I find that, with reasonable accommodation,
E. Horine is a qualified handicapped individual.
___________________________
* E. Horine suffers from narcolepsy; however, he had this
condition while employed by defendant and it does not appear to
have affected his job performance.
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Reuben Lara
In July of 1979, Reuben Lara applied to CP&L for a job as
a meter-reader. He was told he had the job and to report back
after he took the physical. The exam results showed that Lara
has bilateral L-5 spondylolysis without spondylolisthesis and a
spina bifida occulta defect at S-1. His back classified as a
Class V back.
Prior to his application at CP&L, Lara was in the Marine
Corps Reserve, was a gas station attendant, a recreation
coordinator who instructed karate, a commercial fisherman and in
the Air Force. After his application, Lara, at various times,
worked as a security guard, was an assistant manager at What-a-
burger and later at Sambo's, was a child care worker and was
self-employed running a game room.
The job requirements for a meter-reader are the same as
those noted above with regard to the jobs of printer and
surveyor. Lara's work history establishes that he is capable of
fulfilling CP&L job requirements for a meter-reader. As a member
of the Marine Corps Reserve, for which he went through boot camp
in 1978, as a karate instructor, as a commercial fisherman, which
entails pulling nets of fish weighing 50-100 pounds out of the
water, and as a hydraulic mechanic with the Air Force where he
carried a 60-pound tool box, often while traversing a catwalk,
Lara has demonstrated that he is capable of performing the job of
meter-reader. I therefore find that Lara is a qualified
handicapped individual.
Gilbert Lopez
Gilbert Lopez applied for the position of serviceman-trainee
with CP&L on August 28, 1981. The interviewer told him that he
was qualified and that he did not see why he would not be able to
get the job. Lopez took the required physical but was not hired
because Lopez was found to be overweight.
Prior to Lopez's application he worked for Industrial
Electric as an electrician's helper, then was promoted to an
oilfield electrician. His duties as an oilfield electrician were
similar to those of a serviceman trainee with CP&L. The job
requirements for the position of serviceman-trainee are the same
as those noted above with respect to the position of lineman.
Lopez, based on the evidence of his duties as an oilfield
electrician at Industrial Electric, has shown that he is capable
of performing the job of serviceman trainee. He is thus a
qualified handicapped individual.
~14
Paul Martinez
On April 30, 1979, Paul Martinez applied for a mechanic's
position with CP&L. He was given a wage offer, accepted it, and
then took the physical. Martinez was not employed because the
results of the physical were that he had a Class IV back. He was
a grade I spondylolisthesis.
Prior to his application, Martinez worked for General
Electric doing millwright work. Before that he was in the Army
for six years working as a physical training instructor. He
played football and competed in field events in high school. He
was also involved in weightlifting, and at the time of the
hearing continued to pursue weightlifting. Subsequent to his
application, Martinez worked at Technical Electrical Service
Company as a generator electrician, mechanic and doing oil field
work. He has since started his own company and does electrical
work.
The job requirements for a mechanic are the same as those
set out above for a power plant trainee. Plaintiff has proven
that Martinez has the capability of performing the job of
mechanic. He worked as a mechanic at Technical Electric Service
Company and his history of athletic activity indicates his
ability to fulfill defendant's job requirements for a mechanic's
position. Martinez is therefore a qualified handicapped
individual.
Samuel Mendez
On August 24, 1979, Samuel Mendez applied for the position
of meter reader with CP&L. He was told that he had the job if he
passed the physical. The physical exam resulted in the diagnosis
that Mendez has Lumbarization of S-1 with anomalous joint on the
left, and spina bifida occulta of the first complete sacral
segment. The doctor reported that he had a Class V lumbar spine.
Prior to his application, Mendez served for three years,
eight months in the Air Force working in the position of
inventory management specialist, or supply clerk and also in
supply, delivering government furniture. He was also a stock
clerk at a grocery store. After his application to CP&L, Mendez
worked for a month at Block Construction, building steel frame
buildings. Since then he has worked for Brown and Root where he
was an instrument fitter helper for Coastal Communications,
installing mobile telephones, at E.L. Caldwell & Sons in their
parts department and then at Trademark Press as a shipping and
receiving manager.
~15
The job requirements for meter-reader are the same as those
set out above for the positions of surveyor and printer (See
Appendix A). It has been shown that Mendez is capable of
performing the duties of a meterman. While in the Air Force,
endez's job entailed handling supplies and furniture. When
endez worked with Block Construction he had to climb structures,
walk across beams and lift 10-foot beams. As an instrument
fitter helper, mendez regularly climbed eight flights of stairs
sometimes carrying approximately 100 pounds of tools and
equipment. Then at E.L. Caldwell & Sons his job entailed a lot
of lifting. Mendez's present job also requires manual work.
Consequently, I find that Mendez is a qualified handicapped
individual.
Jose Moreno
Jose Moreno applied for an electrical engineer position with
CP&L in July of 1980. Moreno was told that he had the job as
long as he passed the physical. Dr. Schulze reported that Moreno
had a Class V back based on an early narrowing of the L-4-5
interspace.
Before he applied at the CP&L, Moreno had done migrant work,
been a waiter, been a mechanic in the Air Force and three times a
week did weightlifting in which he lifted a 300-pound back
weight. After applying with CP&L, he worked temporarily with the
Federal Emergency Management Agency processing documentation for
loans and grants, then found an engineering job with Stone and
Webster Engineering Corporation, then worked for Western Fuels of
Utah as an electrical engineer, and then he got a job as
instrumentation engineer with Lear Ziegler, Inc.
In response to plaintiff's interrogatory request for CP&L to
list the physical job requirements for an engineer's position,
CP&L did not list any physical job requirements. Thus, one can
conclude that there are no physical requirements for this
position. This conclusion is further supported by defendant's
response to interrogatory No. 29 in which defendant states that
the electrical engineer "job position was given the full physical
in the past to determine future placement into positions of a
strenuous nature. This practice was altered on 09/01/82 to
exclude the back x-rays." I therefore find that Moreno is a
qualified handicapped individual.
Gilbert Rodriguez
On September 12, 1980, Gilbert Rodriguez applied for the
position of lineman with CP&L. Approximately three weeks later
he received a job offer for the position of mail clerk at CP&L.
He interviewed with a George Abound in the mailroom and was told
~16
that he would be employed if he passed the physical. Rodriguez
was not hired, however, because the results of the physical
showed bilateral spondylolysis at L-5. Rodriguez is a diabetic
as well but this was known by CP&L's personnel director Graza at
the time Rodriguez applied.
Prior to his application with CP&L, Rodriguez worked as a
warehouseman, truck drive, and forklift operator for Naval Resale
System. At some point he also worked for PNA, Inc., a pipeline
organization, however, no evidence was presented as to the
position he filled. Since his application, rodriguez has been
employed as an aircraft mechanic and flight tester at the Army
Depot.
Rodriguez originally applied for the position of lineman,
but, since he was offered the position of mail clerk at CP&L, his
capabilities with regard to the physical job requirements of the
mail clerk position are at issue. The job requirements for a
mail clerk are the same as those noted above with respect to the
position of printer and surveyor. The requirements include the
ability to carry up to 75 pounds. Plaintiff has shown that
Rodriguez does have this ability as well as the ability to meet
the other requirements. As an aircraft mechanic Rodriguez dealt
with heavy equipment weighing 70 to 100 pounds. Consequently, I
find that Rodriguez is a qualified handicapped individual.
Victor Sanchez
In October of 1981, Victor Sanchez applied for the position
of janitor at CP&L. He was interviewed by Garza and then by Mr.
Gene at the power plant where a janitor was needed. He was told
to report to work and that the results of the physical would
determine whether he was employed. He was not hired however
because the examining physician reported that he had bilateral
spondylolysis of L-5 without spondylolisthesis. He is also color
blind but this apparently was not the reason for which he was not
hired.
Before his application, Sanchez worked for the Laredo Water
Works System checking and monitoring lift stations for the sewer.
Before and after applying to CP&L, Sanchez worked in an
automotive warehouse as a salesman and a stocking clerk. After
his application, he also worked for the dairy department.
Unloading and stocking crates of milk and for a grocery company
As a hobby, Sanchez does automotive work.
~17
The job requirements for janitor are summarized above with
regard to the positions of printer and surveyor. Plaintiff has
proven Sanchez's capability to perform the job of janitor. The
evidence shows that as a stocking clerk and working at the dairy
department, Sanchez regularly engaged in lifting activity. His
prior work experience is sufficient evidence that Sanchez has the
ability to meet the physical demands of a janitorial position.
John Worcester
John Worcester applied for the position of cableman with
CP&L's Corpus Christi office in October of 1981. He was told
that he'd be hired and that he needed to take a physical.
Worchester was told by Respondent that he did not pass his
physical exam because he had curvature of the spine.
Before applying to CP&L, Worcester worked for a roofing
company installing sheetmetal on buildings. He also worked for
United Parcel Service as a driver, which entailed loading and
unloading delivery trucks as well as driving. Another job that
he held before applying to CP&L was with Dresser Industries
installing oilfield equipment. He also worked at Bales Equipment
as a welder repairing farm equipment.
After his application to CP&L, Worcester worked for Gulf
Coast Fabricators as a helper then as a welder. He has also
worked as a welder for several other companies since then.
The job requirements for the position of cableman are the
same as those for the position of lineman and are noted above. I
find that Worcester is a qualified handicapped individual. His
work experience has been as a physical laborer in jobs which
required physical exertion and placed an amount of stress on the
back comparable to that stress which is involved in the job of
lineman.
Charles Garcia
Charles Garcia applied for the position of mail clerk with
CP&L as indicated by the physical examination form dated February
20, 1981. The physical exam resulted in a finding of first
degree spondylolisthesis of L-5 secondary to bilateral
spondylolysis. He was classified as having a Class V lumbar
spine. Based on CP&L's hiring practices with regard to the other
individuals involved in this case, I find that CP&L did not hire
Charles Garcia because of his back condition.
~18
Charles Garcia died on July 21, 1984, therefore, his father,
Jesus M. Garcia, testified about Charles Garcia's work
experience. Charles Garcia had been intermittently employed by
the Postal Data Center where he cased and distributed mail and
parcel post and the Caller Times Publishing Company (where he was
an inserter and mail distributer).
The physical job requirement are the same as those noted
above with regard to surveyor and printer. Plaintiff has shown,
by demonstrating that Charles Garcia had worked as a mail clerk
before, that at the time Charles Garcia applied to CP&L, he had
the ability to perform the duties of a mail clerk at CP&L. I,
therefore, find that Charles Garcia was a qualified individual.
Issue No. 5
Are defendant's physical job qualification
requirements job-related, and consistent with
business necessity and job safety?
Plaintiff has established that CP&L has used physical job
qualifications which tend to screen out qualified handicapped
individuals. The regulations provide that in this instance,
defendant has the burden of proving that the physical job
qualifications are job-related and consistent with business
necessity and the safe performance of the job. 41 C.F.R. 60-
741(c) (2); see also Jasany v. United Postal Service, 755 F.2d
1244, 1249-50 (6th Cir. 1985) (504 of Act); Doe v. New York
University, 666 F.2d 761, 776 (2d Cir. 1981) (504 of Act);
Prewitt v. United States Postal Service, 662 F.2d 292, 310 (5th
Cir. 1981) (501 of Act); Pushkin v. Regents of University of
Colorado, 658 F.2d 1372, 1387 (10th Cir. 1981) (504 of Act).
The Supreme Court has recognized that the ultimate goal of
the Act is to increase the employment of handicapped persons.
Consolidated Rail Corp. v. Darrone, 465 U.S. 624 (1984). Thus,
if defendant's job qualifications are to be allowed to exclude
handicapped individuals, they "must be directly connected with,
and must substantially promote 'business necessity and safe
performance.'" Bentivegna v. United States Department of Labor,
694 F.2d 619, 622 (1982) citing E. E. Black, Ltd. v. Marshall,
497 F.Supp at, 1103 (D. Haw. 1980).
In support of its position on this point defendant offered
the testimony of Dr. Lawrence Wilk, an orthopedist. In Dr.
Wilk's opinion, persons with any one of the eight back conditions
listed in PX 10-2 (which were the basis of disqualifying many of
the applicants) are properly disqualified for employment because:
~19
People with any of those defects are potential
hazards to themselves in developing what we
call clinical back problems. In other words,
with abnormal stresses or excessive stresses
to their back, statistically they have a very
high chance of developing what we call a chronic
back problem. And -- and this could be very
disabling to them and their ability to continue
working.
(D-8, 43, 44)
At best, Dr. Wilk's testimony shows that there is a
possibility that these applicants might develop a chronic back
problem. Dr. Wilk's opinion is couched in such terms as "Highly
probable" and "generally." This evidence is further weakened by
the fact that medically opinion on the issue of predicting the
future development of low back pain based on back X-rays is
divided. For example, Dr. Roosth's testimony directly
contradicts Dr. Wilk's position. Furthermore, Dr. Wilk agreed
with the statement that reemployment physical identify figure
might be a little low). Lastly, Dr. Wilk admitted that an
employer can't eliminate the problem of back injuries in the
employee population just by eliminating those employees with one
or more of the eight conditions listed in PX 10-2. In light of
the strong policy embodied in the Act to encourage employment of
the handicapped, such conjecture will not justify CP&L's refusal
to employ those applicants with back defects. See, Sterling
Transit Co. v. FEPC, 28 F.E.P. Cas. 1351 (Call. Ct. App. 1981).
Four of the applicants were denied positions with CP&L on
the basis of physical conditions other than those listed in PX
10-2. David Tolbert and Betty DeLoach were both found to be
obese and have diabetes. Gilbert Lopez was found to the obese.
And, Mario Garcia was denied employment at CP&L because he has
red-green color deficiency.
Defendant, however, did not offer any evidence establishing
that the screening out of qualified handicapped individuals on
the grounds of diabetes and /or obesity was job-related and
consistent with business necessity and safety on the job. As
noted above, Dr. Schulze's opinions as to an applicant's fitness
for employment are not persuasive because Dr. Schulze did not
evaluate the applicant's abilities in relations to the physical
job requirements. Dr. Wilk's testimony does not deal with
~20
either of DeLoach's, Tolbert's or Gonzalez's conditions. And the
last of defendant's witnesses, Don Daniel, testified about the
physical requirements of the positions in question but did not
demonstrate how business necessity mandates that people with
certain physical conditions be disqualified from employment.
The testimony relating to Mario Garcia's condition and
concerning this issue is scant. Defendant did put on evidence
indicating that a person in the position of electrical technician
needs to differentiate between red and green in order to perform
the job. Defendant, however, did not prove that such
differentiation must be made by use of the employee's eyes. The
evidence shows that through the use of a meter, Mario Garcia
would be able to differentiate between the red and green wires in
a power cable. Thus, defendant has not shown that its criteria
is job-related and consistent with business necessity and safety
on the job.
Remedies
Plaintiff requested the following relief: (1) an order
directing defendant to cease all violations of 29 U.S.C. 793 and
the regulations thereunder, specifically to refrain from
rejecting applicants for employment solely on the basis of
radiographic spinal abnormalities; (2) offers of employment to
each of the qualified handicapped individuals identified in this
proceeding, and (3) an order directing that each of the
identified individuals receive back pay, with interest, form the
time each individual was rejected for a job by CP&L until an
offer of employment is made.
I. General Directive
With regard to number 1 above, this court is authorized to
issue an order requiring defendant to cease all violations of 29
U.S.C. 793 and the regulations promulgated thereunder. 41
C.F.R. 60-741.28(b).
II. Reinstatement
In addition to the foregoing relief, plaintiff seeks offers
of employment to each of the qualified handicapped individuals
identified in this proceeding. Defendant clearly violated the
anti-discriminatory aspect of its affirmative action duty by
refusing employment to the discriminates.
~21
One of the central purposes of the Rehabilitation Act is to
make persons whole for injuries suffered on account of unlawful
employment discrimination. Administrative relief may be as
complete as the circumstances in a given case reasonably
justifies. OFCCP v. Southern Pacific Transportation Company,
Case No. 79-OFCCP-10A, 10B, 17 (Heyer, ALJ, 1982), at 117. This
action may include reinstatement or hiring of employees, with or
without pay. The court not only has the power but also the duty
to restore the injured party to a position which he/she would
have occupied but for the unlawful discrimination. The
determination of whether employment is an appropriate remedy lies
within the sound discretion of he court. Hedrick v. Hercules,
Inc., 658 F.2d 1088, 1095 (5th Cir. 1981). I therefore find that
defendant should provide the opportunity for employment to
discriminates in such positions as they previously sought or
similar ones involving similar qualifications, to the extent that
they still qualify for those positions.
III. Back Pay
A. Is an Award of Back Pay Appropriate?
Plaintiff's position is that all 19 discriminates should be
compensated by receiving back pay and interest. Specifically,
plaintiffs maintain that back pay wages should employment, and
continue to be paid until defendant offers the discriminates the
opportunity to work. (See Attachment B for starting dates of
backpay). Defendant concurs with plaintiff regarding when back
pay award should commence. Defendant maintains, however, that
they payment of back pay awards should terminate after six
months.
In Albermarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975),
the Court held that "back pay should be denied only for reasons
which, if applied generally, would not frustrate the central
statutory purposes of eradicating discrimination throughout the
economy and making persons whole for injuries suffered through
discrimination." 1/ Denying back pay to discriminates in the
instant case would frustrate the statutory purposes of the Act.
Defendant violated the Rehabilitation Act. Accordingly, the
discriminates must be made whole. It would be within the sound
discretion of this court to award the injured parties back pay.
__________________________
1/ The Albermarle language arose in a Title VII context.
Neither Title VII nor 503 provides express answers with respect
to back pay for individuals who do file complaints of
discrimination.
~22
B. Methods of Computing Back Pay
There are various ways of computing back pay and the choice
of a method is within the trial court's discretion. Pettway v.
American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974).
American Cast Iron Co., 494 F.2d 211 (5th Cir. 1974). Plaintiff
submits that back pay due should be determined by subtracting the
income actual earned by an individual in that year from the
income which the individual would have earned in that year as an
employee of defendant, including natural wage progressions, if
defendant had not withdrawn its offer of employment to the
individual. This calculation, plaintiff maintains, should be
done on a year-by-year basis with the addition of pre-judgment
interest. The basis of the calculations, as well as the issue of
pre-judgment interest shall be discussed at a later time.
Defendant asserts that discriminates should get paid no more
than six months after the date defendant withdrew its offers of
conditional employment. While six months is an unreasonably
short period of time to award back pay, following point that
defendant makes offers of employment to discriminates, would put
the injured parties in a better position than the law would
allow. Pettway, supra, at 251. (Injured parties must be
restored to the economic positions they would have been in but
for the discrimination). Back pay awards shall be paid from the
time each individual was rejected for a job by CP&L until the
date of the first hearing before me, February 26, 1985.
Furthermore, discriminates shall be paid the entry rates on
the dates of employment offers as indicated in Attachment B.
Normal wage progressions due to promotions shall not be included
in the calculations of back pay. Defendant argues, and I agree,
that to award discriminates more than their entry-level wages
would be bestowing upon the injured parties a windfall. An award
for increases and promotions would be too speculative.
Plaintiff has submitted no evidence to prove that
discriminates would have been entitled to promotions and
increases in salaries. To avoid the quagmire of hypothetical
judgments, this court must deny these requests for pay increases
parties might have earned through promotions. Falcon v. General
Telephone Co., 463 F.Supp. 315 (N.D. Tex. 1978). Therefore, each
back pay award shall be calculated on the basis of the individual
discriminatee's entry level wage rate. This rate will not change
from year-to-year.
~23
C. Pre-Judgement Interest
Next plaintiff submits that each discriminatee is owed pre-
judgment interest on back pay based upon the rates required by 26
U.S.C. 6621. Case law supports a granting of pre-judgement
interest on back pay awards as an appropriate exercise of
authority to fashion relief which makes the injured parties
whole. Parson Kaiser Aluminum & Chemical Co., 727 F.2d 473 (5th
Cir. 1984). Furthermore, defendant does not object to the
awarding of per-judgement interest. Accordingly, I deem it
appropriate that each discriminatee shall be awarded pre-
judgement interest pursuant to the rates presented in Attachment C.
D. Interim Earnings
Plaintiff further maintains that the calculation of interim
earnings should be made on a year-by-year basis. Under a year-
by-year approach, when an individual's interim earnings exceed
the wage he or she lost due to the discrimination in any one
year, the "excess" will not be deducted from any back pay owed
for other years. On the other hand, defendant proposes that back
wages should be calculated by comparing the total amount of what
a discriminatee would have earned at Central Power and Light with
the total of what the discriminatee actually earned. The year-
by-year approach is the more reasonable approach, and the
purposes of the Act are better served by calculating back pay
under that analysis. Leftwich v. Harris-Stowe State College, 702
F.2d 686 (8th Cir. 1983).
E. Unemployment Compensation
Plaintiff argues that any unemployment compensation received
by an individual should not be subtracted from earnings which the
person would have received. The Supreme Court held in N.L.R.B v.
Gullet Gin Co., 340 U.S. 361 (1951), that unemployment
compensation payments in a discrimination case are not deducted
from a back pay award. Unemployment compensation is considered a
collateral benefit which a discriminatee receives. These
payments are not made to discharge an employer's lability or
obligation. They are make to carry out a policy of social
betterment for the benefit of the state. "To decline to deduct
state unemployment compensation benefits in computing back pay is
not to make the employees more than whole." Gullet Gin, supra,
at 364. Therefore, I find that unemployment compensation
payments shall not be deducted from awards.
F. Mitigation
With regard to interim earnings and the issue of mitigation,
plaintiff maintains that once plaintiff has established a prima
facie case of discrimination and the damages resulting from
~24
such discrimination, defendant has the burden of producing
further evidence on the question of damages in order to establish
the amount of interim earnings or lack of diligence thereof.
Plaintiff relies upon Marks v. Prattco., Inc., 633 F.2d 1122 (5th
Cir. 1981) for this doctrine. I find that case to be
dispositive. This court must first examine the evidence
presented at trial by plaintiff concerning the question of
whether discriminatees had exercised reasonable diligence in
seeking employment. Smith v. American Service Co. of Atlanta,
Inc., 796 F.2d 1430 (11th Cir. 1986). Plaintiff has adequately
established that discriminatees mitigated.
Defendant has directed me to no evidence in the record
tending to establish that discriminatees did not exercise
reasonable diligence in seeking employment. Defendant seems to
argue that certain applicants who exercised reasonable diligence
found employment within six months of their applicants to CP&L.
Therefore, defendant asserts, those who did not find employment
within sis months were not acting diligently. I am not persuaded
by the logic of this argument.
IV. Payments
For specific back pay computations, see attachments D and E.
Plaintiff's exhibit F, submitted on November 28, 1986, was relied
upon for the starting date of back pay as well as the entry level
wage rates. Plaintiff's exhibit A to proposed finding of fact
No. 8, also submitted November 28, 1986, was used to determine
interim earnings and the percentage rates for interest
calculations.
Vincent Casanova
The total amount due Vincent Casanova is $4,891.00.
Defendant maintains that Mr. Casanova should not recover back pay
because there were not actual earnings. The only time period
which seems questionable is from September 2980, when Mr.
Casanova applied for the job at CP&L, to January 1981, when Mr.
Casanova obtained other employment. I find that plaintiff has
fulfilled the requirement of mitigation. It took Mr. Casanova
three and a half months to get another job. Mr. Casanova was
reasonably diligent for which he applied at CP&L. Smith, supra.
Defendant did not satisfy the burden of proving lack of
diligence. Therefore, Mr. Casanova is awarded the wages he would
have earned in 1980 even though he did not have actual earnings
to offset the CP&L earnings.
~25
ark Chadd
The total amount due Mr. Chadd is $14,903.00.
Betty DeLoach
The total amount due Ms. DeLoach is $15,847.00. In 1982,
s. DeLoach did not have actual earnings according to plaintiff's
Exhibit A to proposed finding of fact No. 8. The transcripts
reveal that Ms. DeLoach earned approximately $600.00 from flea
market sales in 1982, and that she lost approximately $600. from
flea market sales in 1983. Therefore, I shall offset the amount
earned by the amount lost to give a total of zero earned for
1982.
Jose Flores
The total amount due Mr. Flores is $14,013.00.
Charles Gracia
The total amount due Mr. Garcia is $18,157.00.
ario Garcia
The total amount due Mr. Gracia is $4,535.00.
Defendant maintains that Mr. Garcia's entry level wage rate
should be $498.00 and not $641.00, the amount shown in
plaintiff's exhibit F. Defendant maintains that Mr. Garcia
applied for the position of Instrument Technician Trainee which
had an entry level wage of $498.00 in 1981. There is not
evidence in the record to support the contention that Mr. Garcia
applied for the position of Instrument Technician Trainee. The
evidence does support a finding that he applied for the position
of Electrical Technician. In 1981, the entry level wage rate for
that position, according to plaintiff's exhibit C submitted on
November 28, 1986, was $641.00. The entry level wage rate which
I have accepted is $641.00.
Gilbert Garza
Mr. Garza is owed $12,605.00.
Andres Gonzales, Jr.
The total amount due Mr. Gonzales is $41,162.00.
Ralph Horine, Jr.
The total amount due Ralph Horine, Jr., is $7,664.00.
~26
Ralph Horine, Sr.
The total amount due Ralph Horine, Sr., is $8,826.00.
Ruben Lara
The total amount due Mr. Lara is $10,855.00.
Gilbert Lopez
The total amount due Mr. Lopez is zero.
Paul Martinez
The total amount due Mr. Martinez is zero.
Samuel Mendez
The total amount due Mr. Mendez is $668.00.
Jose Moreno
The total amount due Mr. Moreno is $26,911.00.
Gilbert Rodriguez
The total amount due Mr. Rodriguez is ,020.00
Victor Sanchez
The total amount due Mr. Sanchez is zero.
David Tolbert
The total amount due Mr. Tolbert is $9,055.00
John Worcester
The total amount due Mr. Worcester is $10,871.00.
RECOMMENDED ORDER
1. Defendant is hereby ORDERED to cease and desist from
further violation of 29 U.S.C. 793 and the regulations
promulgated thereunder, and is further directed to refrain from
rejecting applicants for employment solely on the basis of
radiographic spinal abnormalities.
~27
2. Defendant is ORDERED to make offers of employment to
discriminatees for positions for which they previously sought
employment, to the extent that they still qualify for those
positions, within thirty days of the date of this decision.
3. Defendant is ORDERED to pay discriminatees pursuant to
Section IV, entitled "Payments," of this decision.
_______________________________
E. EARL THOMAS
Deputy Chief Judge
~i
#29 - Unable to identlfy the following job titles as they are not
CPL jobs.
1. Gauger/Plant Mechanic Assistant
2. Meter Rader Technician
3. Plant Trainee/Construction
ENGINEER:
This job position was given the full physical in the past to
determine future placement into Positions of a strenuous nature.
This practice was altered on 09/01/82 to exclude the back x-rays.
PBX OPERATOR:
No specific job qualifications other than the ability to operate
PBX telphone equipment.
EXHIBIT II - PAGE 8
~ii
ATTACHMENT B
EXHIBIT F
Defendant's Submisions
Name and Date of (Position and Entry Rate OFCCP Backwage
Employment Offer on Date of Employment Offer) Computations
1. Vincent Casanova All exhibits show "Printer" and Entry rate of
09/23/80 entry rate of $342 $342 with
progressions as
shown in Ex D.
2. Mark Chadd Ex B: Surveyor 1st yr - $701 Entry rate of
07/25/80 Ex C: Surveyor/entry (same as D & E) $492 with
Ex D: Surveyor instrumentman - $492 progressions as
Ex E: Rod and chainman - $492 shown in Ex D.
(no surveyor rate)
3. Betty DeLoach All Exhibits show "PBX Operator" Entry rate of
10/08/79 and entry rate of $314 $314 with
progressions as
shown in Ex D.
4. Josue Flores Ex B: Meter Reader Technician - $445 Entry rate of
03/10/82 Meterman A - $916 $445 with
Ex C: Meter Reader A same as Meter progressions as
Reader Technician in Ex B shown in Ex D.
Ex D: Meter Reader - $445
Ex E: (No Meter Reader Technician rate)
Meterman Trainee - $548
Meter Reader C - $445
5. Charles Garcia All exhibits show "mailclerk" or Entry rate of
02/20/81 "mailclerk A" and entry rate of $342 with
$342 progressions as
shown in Ex D.
6. Mario Garcia Application as Electrical Technician Entry rate of
05/18/81 (See, Tr. 63 and Pl. Ex. 9-6). Only $641 with
wage data for electrical Technician progressions as
(Entry in Exhibit C) - $641 in 10/81. shown in Ex C.
All other defendant's submissions
based Lineman position (lower entry
rate position), despite specific
request in Motion for Further Exchange.
7. Gilbert Garza EX B: Lineman A - $916 Entry rate of
07/07/81 EX C: Lineman A - same as EX B $492 with
Lineman Trainee - $492 progressions as
Ex D: Lineman - $492 shown in Ex D.
Ex E: Lineman Trainee - $492
8. Andres Gonzales, Jr. Ex B: Power Plant Trainee - $554 Entry rate of
11/10/81 Ex C: No information $554 with
Ex D: Power Plant Operator - $554 progressions as
Ex E: Power Plant Trainee - $554 shown in Ex D.
CENTRAL POWER & LlGHT COMPANY
~iii
Page 2 of Exhibit F
Defendant's Submissions
Name and Date of (Position and Entry Rate on OFCCP Backwage
Employment Offer Date of Employment Offer) Computations
9. Ralph A. Horine, Jr. All exhibits show "mailclerk" or Entry rate of
10/01/79 "mailclerk A" and entry rate of $314 $314 with
progressions as
shown in Ex D.
10. Ralph E. Horine, Sr. Ex B: No information Entry rate of
07/01/82 Ex C: Storekeeper (entry) - $423 $520 with
Ex D: Storesclerk - $370 progressions as
Ex E: Storeshelper (entry) - $520 shown in Ex D.
11. Ruben Lara Ex B: Meter Reader Technician - $373 Entry rate of
07/05/79 (10/79) $323 with
Meterman A - $745 progressions as
EX C: Meter Reader A - same as Meter shown in. Ex D.
Reader Technician in Ex. B
EX D: Meter Reader - $323 ($373 10/79)
Ex E: (No meter reader technician rate)
Meterman Trainee - $409
Meter Reader C/entry - $323 ($373
in 10/79)
12. Gilbert Lopez EX B: Serviceman A - $916 Entry rate of
09/02/81 $548 with
Serviceman Trainee - $548 progressions
Ex C: Serviceman Trainee - same as calcuLated
in Ex B from percentages
Ex D: Serviceman - $584 (apparently in Ex D
a transposition)
Ex E: Serviceman Trainee - $548
13. Paul Martinez EX B: Mechanic A (Plant) - $745 Entry rate of
04/30/79 Ex C: Garage Mechanic (entry) - lower $409 with
rate = $597 (8/82) progressions
Ex D: Mechanic Auto - $364 calculated from
Ex E: Mechanic (entry) - $409 percentages shown
Plant Mechanic Trainee (entry) in Ex D.
- $409
14. Samuel Mendez Ex B: Meter Reader Technician - $373 Entry rate of
08/24/79 (10/79) $323 with
Meterman A - $745 progressions as
Ex C: Meter Reader A - same as Meter shown in Ex D.
Reader Technician in EX B
Ex D: Meter Reader - $323 ($373 10/79)
EX E: (No meter reader technician rate)
Meterman Trainee - $409
Meter Reader C/entry $323 ($373
10/79)
~iv
Page 3 of EXIBIT F
Defendant's Submissions
Name and Date of (Position and Entry Rate on OFCCP Backwage
Employment Offer Date of Employment Offer) Computations
15. Jose L. Mareno Ex B: Engineer I - $675 Entry rate of
07/23/80 Ex C: Engineer I - same as in Ex B $675 with
Ex D: Engineer - $783 progressions
Ex E: Engineer - $675 calculated from
percentages used
in Ex D.
16. Gilbert Rodriguez Aplication as Lineman rejected on Entry rate of
09/12/80 undisputed grounds, reapplied as $342 with
Mailclerk (Tr. 312-313). All progressions as
defendant's submissions based shown for Charles
"Lineman" despite specific request Garcia in EX D.
in Motion for Further Exchange.
"Mailclerk" and "mailclerk A" data
consistent with all exhibits, entry
rate of $342.
17. Victor E. Sanchez Application for "Janitor-Handyman" Entry rate of
10/29/81 (Tr. 184; Plaintiff's Ex's 9-15 and $335 in EX B.
10-18). with progressions
Ex B: Janitor (Building Maintenance calculated from
Man) - $723 percentages in
Ex C: Custodian - lower rate, no Ex D.
janitor rate
Ex D: Custodian - $335
(no janitor title)
Ex E: Custodian - $335
"Janitor-Handyman" position clearly
more skilled than "custodian" i.e.,
cleaner. Defendant has refused to
provide further data on janitor,
despite specific request in Motion
for Further Exchange
18. David Tolbert Entry rate of
04/14/82 Ex B: No information $548 with
EX C: No information progressions as
EX D: Groundman - $548 shown in EX D.
Ex E: Maintenance - unstated
19. John Worcester Entry rate of
10/08/81 "Cableman trainee" shown same on $548 with
all exhibits as entry rate of $548 progressions as
shown in EX D.
~v
ATTACHMENT C
Pre-judgment interest on the back pay due each individual shall be simple
interest at the rates required by 26 U.S.C. 6621. Those rates are as follows:
February 1, 1978 through January 31, 1980 6% a year
February 1, 1980 through January 31, 1982 12% a year
February 1, 1982 through December 31, 1982 20% a year
January 1, 1983 through June 30, 1983 16% a year
July 1, 1983 through December 31, 1983 11% a year
January 1, 1984 through June 30, 1984 11% a year
July 1, 1984 through December 31, 1984 11% a year
January 1, 1985 through June 30, 1985 13% a year
July 1, 1985 through December 31, 1985 11% a year
January 1, 1986 through June 30, 1986 10% a year
~vi
ATTACHMENT D
Interest Calculations
1. Charles Garcia
14,577 2 = 7,288
x 49.4
3,600.00
2. Mario Garcia
3,382 2 = 1,691
x 68.2
1,153.00
3. Gilbert Garza
9,470 2 = 4,735
x 66.2
3,135.00
4. Andres Gonzales, Jr.
31,398 2 = 15,699
x 62.2
9,764.00
5. Ralph Horine, Jr.
5,375 2 = 2,687
x 85.2
2,289.00
6. Ralph Horine, Sr.
7,039 2 = 3,519
x 50.8
1,787.00
7. Ruben Lara
7,586 2 = 3,793
x 86.2
3,269.00
~vii
8. Gilbert Lopez - 0
9. Paul Martinez - 0
10. Mark Chadd
10,714 2 = 5,357
x 78.2
4,189.00
11. Jose Flores
10,884 2 = 5,442
x 57.5
3,129.00
12. Samuel Mendez
468 2 = 234
x 85.7
200.00
13. Gilbert Rodriguez
745 2 = 362
76.2
275.00
14. Victor Sanchez - 0
15. David Tolbert
7,080 2 = 3,540
x 55.8
1,975.00
16. John Worcester
8,261 2 = 4,130
x 63.2
2,610.00
~viii
17. Betty DeLoach
36,359 2 = 18,179
x 85.2
15,488.00
18. Jose Moreno
19,417 2 = 9,708
x 77.2
7,494.00
19. Vincent Casanova
3,555 2 = 1,777
x 75.2
1,336.00
