USDOL/OALJ Reporter
OFCCP v. Exxon Corp., 92-OFC-4 (ARB Oct. 28, 1996)
U.S. Department of Labor
Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
CASE NO. 92-OFC-4
DATE: October 28, 1996 FINAL DECISION AND ORDER
FACTUAL BACKGROUND
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DISCUSSION
Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
DATE: October 28, 1996
In the Matter of:
OFFICE OF FEDERAL CONTRACT COMPLIANCE
v.
EXXON CORPORATION d/b/a EXXON COMPANY,
U.S.A.,
PROGRAMS, UNITED STATES DEPARTMENT
OF LABOR,
PLAINTIFF,
DEFENDANT.
This case arises under section 503 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 793 (1994), and implementing regulations set forth at 41 C.F.R. Part 60-741 (1995). The Rehabilitation Act requires covered Federal contractors and subcontractors to "take affirmative action to employ and advance in employment qualified individuals with disabilities."2 The Administrative Law Judge (ALJ) has recommended that Plaintiff Office of Federal Contract Compliance Programs (OFCCP) should prevail in its complaint. We agree and adopt the ALJ's findings as described below.
The ALJ has recounted the facts thoroughly. Recommended Decision and Order (R. D. and O.) at 2-21. Briefly, Complainant Thomas J. Strawser has been employed by Defendant Exxon Company, U.S.A. (Exxon) since 1981. He began work as a senior engineer in Oklahoma City, Oklahoma. In 1982 he was transferred to the company's Dover-Hennessey Gas Plant located north of Oklahoma City. He then worked as a subsurface engineer assigned to the company's Oklahoma City office and in late 1983 became the temporary field foreman at the Hewitt Field in Wilson, Oklahoma. In 1984 Strawser returned to the Dover-Hennessey Gas Plant as temporary field foreman, and in October of that year he joined the start-up team for a natural gas extraction and processing facility in LaBarge, Wyoming. Although stationed initially in Oklahoma City, the start-up team relocated to LaBarge in March 1985. In his start-up capacity Strawser reviewed processes, instrumentation, pressures, flow rates, metallurgy and blueprints. He also wrote job descriptions for the operations team, trained supervisors and checked vehicle specifications.
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Between 1985 and 1989, Strawser worked as a field foreman at LaBarge. Located in southwestern Wyoming near the Bridger-Teton National Forest, the LaBarge facility consists of a wellfield where gas is extracted and channeled through gathering lines, the Black Canyon Dehydration (DeHy) facility where water is removed from the gas, the Shute Creek processing facility where gas components are separated, and a 40-mile feed pipeline which transports the dry gas from the DeHy to Shute Creek.3 The LaBarge gas deposit contains carbon dioxide, methane, nitrogen, hydrogen sulfide, and helium. In the concentrations present at LaBarge, hydrogen sulfide is deadly to humans and wildlife. Stipulation of Facts (Stip.) 1.
After completing and testing the 16 wells at LaBarge in 1986, Strawser performed final "check-outs" on equipment, checked and operated the computer system, coordinated contractors and Exxon's engineering and operations groups in order to avoid accidents including gas leakage, calibrated line break detectors on the dry gas trunk line, and eventually "started up" the facility without any gas leakage or other major problems. Hearing Transcript (T.) 44-52. Strawser also wrote contingency plans for emergency response in the event of gas leakage and trained operators to implement the plans. T. 53-56. As field foreman, Strawser implemented safety procedures, ensured compliance with Exxon policy, revised contingency plans, planned and conducted emergency response drills, and reviewed and approved work permits. T. 54-57, 73; R. D. and O. at 11. Strawser often worked unsupervised. See Stips. 2-5. Throughout his tenure at Exxon, Strawser has received satisfactory to outstanding performance evaluations. R. D. and O. at 10-11. Strawser's attendance record is exemplary.4
In September 1989, Strawser was transferred to the position of field foreman at the Hartzog Draw Unit at Gillette, Wyoming. Strawser testified that while he suffered no reduction in salary or benefits, comparing the Hartzog Draw and LaBarge instrumentation is "like comparing a go-cart to a Mercedes Benz." T. 76. Hartzog Draw is merely an oil field whereas the computerized LaBarge facility "is on the cutting edge of technology." T. 83.
Exxon transferred Strawser pursuant to its 1989 Drug and Alcohol Policy. That policy provides that "an employee who has had or is found to have a substance abuse problem will not be permitted to work in designated positions identified by management as being critical to the safety and well-being of employees, the public, or the Company." Defendant's Exhibit (DX) 5 (emphasis added). Exxon's "Trainer Manual" states that "an employee who has been to or currently is active in rehabilitation is an employee who has had' or has a substance abuse problem" and would "not be permitted" to work in any position designated safety-critical. DX 6 at 221. The manual defines rehabilitation as "a structured process of counseling, education and therapy through which an employee seeks resolution of a personal problem with the abuse of alcohol or drugs." Id. at 222. Rehabilitation programs that preclude an employee from working in a designated position include "[p]articipation in self-help programs such as Alcoholics Anonymous, Narcotics Anonymous, or Cocaine Anonymous." Id.
The provision prohibiting employees from working in designated positions is known as the "never-ever" clause. Once an employee has abused drugs or alcohol, he is not eligible for a designated position regardless of rehabilitation. R. D. and O. at 4-6. The position of field foreman at LaBarge is a designated position because large concentrations of hydrogen sulfide are present. Exxon determined that Strawser "has had . . . a substance abuse problem" because he
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had undergone rehabilitation and was active in Alcoholics Anonymous (AA). T. 106-111, 499-500, 617. Specifically, in January 1981 Strawser was diagnosed as alcohol dependent and entered a 28-day treatment program. After a relapse, he returned for five days of treatment in August 1981. At the time of his transfer to Hartzog Draw in September 1989, Strawser had maintained sobriety since January 1, 1983 -- a period of nearly seven years.5
In order for individuals to recover under section 503 of the
Rehabilitation Act, they must meet two different criteria which initially may appear
contradictory. They must show first, that they are an individual with a disability and second, that
despite their disability they can perform the particular duties required for the job. Strawser has
shown in a number of different ways that he is an individual with a disability and that despite his
disability he is capable of performing the particular duties of the job.
I. Qualified individual with a disability
Section 503 of the Rehabilitation Act provides that covered
contractors and subcontractors "shall take affirmative action to employ and advance in
employment qualified individuals with disabilities." 29 U.S.C. § 793(a). Contractors and
subcontractors also must otherwise treat qualified handicapped individuals without
discrimination based on handicap in all employment practices such as "[e]mployment, upgrading,
demotion or transfer . . . ." 41 C.F.R. § 60-741.4.6 Exxon is subject to these requirements. Stip. 15. For purposes of section 503,
"the term individual with a disability' means . . . 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." 29 U.S.C.
§ 706(8)(B). Also, to the extent that section 503 relates to employment, the term
"individual with a disability" does not include any individual who is an alcoholic whose current
use of alcohol prevents such individual from performing the duties of the job in question or
whose employment, by reason of such current alcohol abuse, would constitute a direct threat to
property or the safety of others.29 U.S.C. § 706(8)(C)(v).
A. Regarded as having a substantially
limiting
The ALJ found that Strawser was an individual with a disability
because Exxon regarded him as having an impairment which substantially limited a
major life activity. R. D. and O. at 26-27. We agree. An employee may fall under subpart (iii)
of the definition if he has an impairment that does not substantially limit a major life
activity, but the impairment is regarded as being substantially limiting. See S.
Rep. No. 1297, 93d Cong., 2d Sess., reprinted in 1974 U.S.C.C.A.N. 6373, 6389-6390
(phrase includes persons who do not in fact have the impairment they are perceived as having as
well as persons whose impairment does not substantially limit their life activities).7 By including the "regarded as" criterion,
"Congress acknowledged that society's accumulated myths and fears about disability and
diseases are as handicapping as are the physical limitations that flow from actual impairment."
School Board of Nassau County v.
Arline, 480 U.S. 273, 283 (1987).
Here, Strawser was diagnosed as alcohol dependent in 1981 and
currently is a rehabilitated or "recovering" alcoholic. Expert witnesses at the hearing testified
that Strawser's alcoholism is "in remission." T. 718-719, 908-909. See Rodgers v.
Lehman, 869 F.2d 253, 258 (4th Cir. 1989) ("Alcoholism is a handicapping condition within
the meaning of the [Rehabilitation] Act."). The impairment of alcoholism never affected the
major life activity of "working," however. R. D. and O. at 23-25 ("[T]he record indicates that
[Strawser's] work performance was not affected by his alcoholism."). Exxon perceives the
possibility that Strawser's alcoholism could affect his work performance if he should suffer a
relapse. In these circumstances, Strawser is regarded as having an impairment that affects
employment.8
We note that an impairment may affect a major life activity
without significantly limiting it. Special considerations apply when, as here, the major
life activity is "working." In this context, "substantially limits" means being restricted in the
ability to perform either (1) a class of jobs or (2) a broad range of jobs in various classes.
Dep't of Labor, OFCCP v. Texas Industries, Inc., 47 Fair Empl. Prac. Cas. (BNA) 18, 21
(June 7, 1988). Cf. 29 C.F.R. § 1630(j)(3) (1995) (ADA definition of
"substantially limits" with respect to the major life activity of "working"). A "class of jobs"
would include jobs requiring similar training, knowledge, skills and abilities, e. g., jobs
requiring heavy lifting or jobs requiring the use of a computer. A "broad range of jobs in various
classes" would include jobs not requiring similar training, knowledge, skills and
abilities. 29 C.F.R. Part 1630, App. at 403. For example, fatigue could prohibit full-time
employment, depression could restrict work in jobs requiring public interface, hearing sensitivity
could affect work in noisy environments. The inability to perform a single, particular job does
not qualify. E.E. Black, Ltd. v. Marshall, 497 F. Supp. 1088, 1101-1102 (D. Hawaii
1980) (substantial limitation means more than an inability to perform one particular job but less
than a general inability to work; evaluation should focus on the number and type of jobs from
which the employee is disqualified).
Exxon's 1989 Drug and Alcohol Policy excluded Strawser from
1,800 jobs performed on multiple shifts by 3,000 employees. T. 1297, 1307. These jobs
involved operating processes "where failure could cause a catastrophic incident" and where "[n]o
direct supervision [was] readily available . . . ." R. D. and O. at 5-6. At LaBarge alone, the
senior superintendent, the field superintendent, and all supervisors, field foremen, senior
operators, and anyone who might relieve employees in any of these positions were designated
safety-critical. T. 498. Although Strawser had been instrumental during set-up and was an
experienced field foreman, all advancement opportunities at LaBarge were curtailed.
See T. 194-195 (fellow field foreman received two-level promotion to senior
superintendent at LaBarge after Strawser's transfer). Within Exxon generally, designated
positions include tank wagon driver, terminal operator, ship captain, offshore worker, pipeline
worker and pilot. T. 1307-1308. A total of 52 out of about 700 or 800 executive positions at
Exxon are designated positions. T. 1339. Strawser thus was restricted in the ability to perform a
broad range of jobs in various classes and as such was significantly limited in employment.
Finally, the ALJ found that Strawser did not come within the
statutory exception which denies protection to any alcoholic (1) whose current use of
alcohol prevents him from performing the job in question or (2) whose employment, by reason of
current alcohol abuse, would pose a direct threat to property or safety. 29 U.S.C.
§ 706(8)(C)(v).9 "Direct threat"
has been defined
under the ADA to mean a significant risk of substantial harm to health or safety that cannot be
eliminated or reduced by reasonable accommodation. Such a determination requires an
individualized assessment of the person's present ability to perform the essential function of the
job safely. Factors germane to determining whether an individual poses a "direct threat" include
the duration of the risk, the nature and severity of the potential harm, the likelihood that the
potential harm will occur and the imminence of the harm. See 29 C.F.R. §
1630.2(r).10
The record fully supports the ALJ's finding that Strawser did not
come within the exemption, i.e., that alcohol use or abuse did not affect his employment.
Numerous co-workers, including the field superintendent at LaBarge, the operations
superintendent at LaBarge and the field superintendent at Hartzog Draw, attested to Strawser's
continuing sobriety. They testified that Strawser's alcoholism never affected his job, that they
never had witnessed him using alcohol even at social events or on fishing trips, that he was
always coherent and that he never manifested hangover symptoms. T. 426-470, 507-508,
522-523, 655-656. See R. D. and O. at 8 n.12. Strawser's own testimony, T. 94-96, 102,
290-291, 299, 507, in conjunction with that described above persuades us that he does not use
alcohol currently. As to whether Strawser's employment in the capacity of field foreman at
LaBarge would threaten safety, we adopt the ALJ's findings, based in part on expert testimony,
that Strawser has made a strong recovery from alcoholism and that his risk of relapse is low.11 R. D. and O. at 13-15, 17-21, 23-24,
36-38. Strawser therefore is an individual with a disability, i.e., he is regarded as having
an impairment which substantially limits a major life activity under 29 U.S.C. §
706(8)(B)(iii).
B. Having a record of a substantially
limiting
Plaintiff disagrees with the ALJ's finding that Strawser did not
have a "record of" a substantially limiting impairment within the meaning of 29 U.S.C. §
706(8)(B)(ii). The ALJ found: "[A]lthough Strawser has a record of alcoholism, there is no
evidence that this alcoholism substantially limited him in his major life activities. Specifically in
regard to employment, the record indicates that his work performance was not affected by his
alcoholism." R. D. and O. at 25. As Plaintiff points out, however, major life activities include
activities other than "working." They are those basic activities that the average person in the
general population can perform with little or no difficulty, e.g., caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, sitting,
standing, lifting, reaching, thinking, reading, concentrating and interacting with others.
School Board of Nassau County v. Arline, 480 U.S. at 281 (lengthy hospitalization
established a history of disability); Davis v. Bucher, 451 F. Supp. 791, 795 (E.D. Pa.
1978) (substance abuse substantially impairs activities such as caring for oneself, performing
manual tasks, walking, speaking, learning and working). See Northwest Airlines v. Air Line
Pilots Ass'n International, 808 F.2d 76, 79 n.6 (D.C. Cir. 1987), cert. denied, 486
U.S. 1014 (1988) (alcoholism is indicated where the "intake of alcohol is great enough to damage
physical health or personal or social functioning" or where "alcohol has become a prerequisite to
normal functioning").
The record in this case contains evidence that in the past Strawser's
alcoholism affected
major life activities other than working. In the late 1970's Strawser began drinking wine on a
daily basis. When he sought help in late 1980, his consumption had increased to a pint of scotch
a day. T. 88. He was charged with public drunkeness on a single occasion in 1979 or 1980. T.
102. Drinking affected his first marriage adversely. PX 56 at 2. In evaluating Strawser's
history, Dr. Torres, the examining psychologist, noted: "The marital problems culminated in an
acrimonious divorce in February 1980. [Strawser] observes that his drinking had aggravated
marital problems, helped him tolerate an intolerable situation, generated guilt, loss of self-esteem
and precipitated panic attacks." PX 56 at 2. Dr. Peoples, the examining physician, determined
that Strawser met all nine criteria for alcohol dependence, "an illness that involves lack of control
over alcohol intake." T. 898-899. See T. 325, 375-377; PX 91 at 3 (Strawser's drinking
caused "alcoholic blackouts, tremors, withdrawal symptoms, drinking to relieve withdrawal
symptoms and anxiety attacks while drinking").12
Perhaps most telling, however, is the diagnosis of alcoholism itself
-- a professional judgment that Strawser's condition was sufficiently severe to require treatment.
Treatment for alcoholism frequently is extensive and ongoing. Strawser, for example, completed
rehabilitation programs during 1981 and 1982, including the initial program of nearly one
month's duration. He continued AA activities thereafter. In this connection, the court in
Rodgers v. Lehman, 869 F.2d at 259, stated: "[T]he nature of the disease of alcoholism
requires that there be a continuum of treatment and that the alcoholic be permitted some
opportunity for failure in order to come to the acceptance of his disease which is the critical
element of his cure." Indeed, courts have not hesitated to designate alcoholism "a handicapping
condition" without discussing the particular circumstances. Little v. Federal Bureau of
Investigation, 1 F.3d at 257, citing Rodgers v. Lehman, 869 F.2d at 258. We find
that Strawser is an individual with a disability under 29 U.S.C. § 706(8)(B)(ii) in that he
has a record of an impairment that substantially limited major life activities other than
"working."
C. Qualified individual
The ALJ found Strawser to be a "qualified" individual with a
disability13 because he had performed
the job of field foreman at LaBarge successfully and safely for nearly five years prior to being
transferred and continued to function as a field foreman at Hartzog Draw thereafter. R. D. and O.
at 28-29. He thus was qualified to perform the job without accommodation. We agree
and adopt this portion of the ALJ's recommended decision.
Exxon argues that Strawser is not "qualified" because of the risk of
harm in the event of relapse. Exceptions 22, 23, 25. In School Board of Nassau County v.
Arline, the Court engaged in similar analysis when it considered whether a teacher suffering
from the contagious disease of tuberculosis constituted a handicapped individual and, if so,
whether she was "otherwise qualified" to teach elementary school due to risk of transmission.
480 U.S. at 280-288. Subsequently, Congress amended the Rehabilitation Act to exclude from
coverage any individual "who has a currently contagious disease . . . and who, by reason of such
disease . . . would constitute a direct threat to the health or safety of other individuals or who, by
reason of the . . . disease . . . is unable to perform the duties of the job." 29 U.S.C. §
706(8)(D). This amendment essentially codified the standard pertaining to performance and risk
associated with this type of disability. Any individual not currently contagious or any individual
not posing a direct threat to health and safety because of a contagious disease and able to perform
the job
despite the disease, was "qualified."
Congress engaged in similar codification when it excluded from
coverage only those alcoholics whose current use of alcohol prevented them from performing the
duties of the job or whose employment, because of current alcohol abuse, posed a direct threat to
others. 29 U.S.C § 706(8)(C)(v). As discussed above, Strawser was not excluded under
this standard, and Exxon's argument that he is not qualified fails. R. D. and O. at 28-29.14
We note that Exxon cites to Arline in arguing for
categorical exclusion due to "unpredictable risk of relapse." Exception 23. The inquiry in
Arline was individual-specific, however. After finding handicapped a teacher whose
remitted tuberculosis had become active, the Court proceeded to the remaining question of job
qualification. The Court stressed the need "to conduct an individualized inquiry and make
appropriate findings of fact" if the Rehabilitation Act were "to achieve its goal of protecting
handicapped individuals from deprivations based on prejudice, stereotypes, or unfounded fear,
while giving appropriate weight to such legitimate concerns . . . as avoiding exposing others to
significant health and safety risks." 480 U.S. at 287. Pertinent considerations included the
nature, duration and severity of the risk and the probabilities that the disease would be
transmitted and would cause varying degrees of harm. The exercise necessitated asking: How is
the disease transmitted, how long is the carrier infectious, and what is the potential harm to third
parties? Id. at 288. Medical evaluation of the teacher's actual condition thus was
required in order to determine whether the risk of transmittal rendered her "unqualified."
Exxon's categorical exclusion of all individuals treated previously for alcohol abuse does not
meet this individualized examination standard.
II. Job qualification requirements and
individualized
Since Plaintiff established that Strawser was a qualified individual
with a disability who was transferred because of that disability, Exxon must demonstrate that
Strawser's continued employment in the designated position would pose a "reasonable
probability of substantial harm." Mantolete v. Bolger, 767 F.2d 1416, 1422-1423 (9th
Cir. 1985).15 See OFCCP v. CSX
Transportation, Inc., Case No. 88-OFC-24, Ass't Sec. Rem. Ord., Oct. 13, 1994, slip op. at
17-20; OFCCP and Thompson v. PPG Industries, Inc., Case No. 86-OFC-9, Dep. Ass't
Sec. Dec. and Rem. Ord., Jan. 9, 1989, slip op. at 16-17. Pertinent considerations include the
likelihood, imminence and severity of injury. E.E. Black, Ltd. v. Marshall, 497 F. Supp.
at 1104. Exxon's 1989 Drug and Alcohol Policy excludes from positions designated
safety-critical any employee who has undergone treatment for alcoholism, thereby establishing a
job
requirement that screens out qualified individuals with disabilities. Accordingly, Exxon also
must demonstrate that the requirement is job-related and consistent with business necessity and
safe job performance. 41 C.F.R. § 60-741.6(c).
The ALJ found that Exxon "failed to demonstrate that its blanket
policy precluding rehabilitated alcoholics . . . from holding designated positions, as applied to
Strawser, is consistent with business necessity or safe performance of the job of field foreman" at
LaBarge. We agree and adopt the ALJ's reasoning at pages 32-38 of the R. D. and O.
With regard to "reasonable probability of substantial harm," the
ALJ identified the "risk" in the case as being: "[1] that Strawser would suffer a relapse, [2] that
an emergency would
occur, [3] that he as a result of drinking would take some inappropriate action (or fail to take
appropriate action), and [4] that that action or inaction would cause a catastrophe." R. D. and O.
at 36, citing Dep't of Labor, OFCCP v. Texas Industries, Inc., 47 Fair Empl. Prac. Cas.
(BNA) at 25-26 (this type of formulation represents a "tenuous prediction" which does not begin
to approximate the analysis suggested by E.E. Black, Ltd. v. Marshall).
The ALJ found Strawser's risk of relapse to be low based in part on
his past history. Mantolete v. Bolger, 767 F.2d at 1422-1423 (individual's employment
history and medical history examined in assessing probability of harm). Cf. OFCCP v. PPG
Industries, Inc., Case No. 86-OFC-9, Ass't Sec. Rem. Ord., Jan. 9, 1989, slip op. at 22
(single best predictor of epileptic's future seizure control is past history). The ALJ cited expert
testimony that "the longer a recovering alcoholic remains sober, the less likely he is to relapse."
R. D. and O. at 37. At the time of transfer, Strawser had maintained sobriety for many years.16 Additionally, Strawser had controlled
his bipolar disorder successfully, had been forthcoming about the use of alcohol on the 1991
hunting trip, had been active in AA since 1980, and had "faced several major stressors in his life
without suffering an alcoholic relapse."17 Id.
Plaintiff relied on three experts: Dr. Walter Torres, a clinical
psychologist, Dr. Ulysses
S. Grant Peoples, a physician, and Dr. Michael Gendel, a psychiatrist. Drs. Torres and Peoples
specialize in Addiction Medicine. They routinely perform fitness for duty evaluations for
employees who work in high risk occupations.18 Drs. Torres and Peoples examined Strawser and reviewed his history to
determine fitness for duty predominantly in reference to alcoholism. Strawser was referred to
Dr.
Gendel, the psychiatrist, for a fitness for duty evaluation in reference to bipolar disorder. The
evaluations consist of psychiatric testing, a physical examination, interviews and review of the
employee's history. The evaluator then assesses the employee's ability to perform the job, any
medical problems, occupational risks and risk of relapse. All of these experts testified that
Strawser was fit for duty as field foreman at LaBarge, that his recovery was strong and that his
risk of relapse was low. T. 378-381, 394-395, 680, 908-909, 916-918, 922, 924, 936-937, 1003,
PX 54, PX 65, PX 91, Gendel deposition at 109 and exhibit 4. Dr. Peoples quantified Strawser's
risk of relapse at between zero and ten percent. T. 937, 955-956, 973 (risk of relapse the same or
less than the general population). See T. 869, 919, 923 (incidence of alcoholism in
general population is about ten percent). The ALJ clearly credited this evidence.19
In assessing the probability and severity of potential harm, the ALJ
stated:
inappropriate action and catastrophe is exponentially lower. . . . The probability of harm is
reduced even further if Exxon monitors Strawser's condition through periodic medical
examination and random testing.
Exxon asserts that Strawser's bipolar affective disorder exacerbates
the risk of relapse. The experts disagreed on whether Strawer's disorder interacted with his
alcoholism. Dr. Gendel noted that the alcoholism followed the disorder chronologically and that
the disorder may have precipitated the alcoholism.20 Dr. Peoples observed that Strawser began taking lithium to control the disorder
in 1981. Strawser stopped taking lithium in 1985 but resumed treatment in 1990 when
symptoms returned.21 Significantly,
he
did not also resume alcohol use during this hiatus. Strawser recalls experiencing symptoms of
the disorder in college, but he did not begin drinking until many years later. Finally, Strawser
relapsed during 1981 and 1982 after he had begun taking lithium. For these reasons, Dr. Peoples
did not believe that the alcoholism and the disorder interacted in Strawser's case. R. D. and O. at
15 and n.25. See T. 946 (Strawser's alcoholism and bipolar illness are separate
conditions). Dr. Torres agreed that a disorder-driven relapse was unlikely since none occurred
when Strawser became symptomatic in 1990. T. 760-761.
Drs. Torres and Gendel testified that the disorder did not affect
Strawser's fitness for duty. R. D. and O. at 15. The disorder is controlled effectively with
lithium. See Gendel deposition at 117 (bipolar disorder is well-controlled and stable).
Dr. Peoples testified:
T. 1003. According to Dr. Gendel, Strawser has a particularly good understanding of the
disorder and can be expected to detect any manifestation requiring a change in medication.
Gendel deposition at 25, 115, exhibit 4. We are not persuaded, on this record, that the disorder
exacerbates the risk.22
Exxon thus has not demonstrated that Strawser's employment as a
field foreman at LaBarge would pose a reasonable probability of substantial harm.
Exxon asserts that because the potential for relapse purportedly
cannot be predicted with any degree of certainty, alcoholics who have undergone rehabilitation
should be excluded categorically from positions designated safety-critical. See, e.g.,
Defendant's Exceptions 1, 21, 22, 48. The Institute for a Drug-Free Workplace, which filed a
brief as amicus curiae, takes a parallel tack in arguing that the "potentially catastrophic
consequences and liabilities" posed by employees with histories of substance abuse justify
classification and exclusion. Brief at 12.
The Rehabilitation Act consistently has been construed as requiring
examination of the individual's medical and employment histories. Determinations may
not be premised on general medical reports "except in cases of the most apparent nature . . . ."
Mantolete v. Bolger, 767 F.2d at 1422 (complainant with epilepsy). See OFCCP v.
Yellow Freight System, Inc., Case No.
84-OFC-17, Acting Ass't Sec. Rem. Ord., Jul. 27, 1993, slip op. at 12 (interpreting
Mantolete language to "refer to situations that are very clear, evident and obvious, and
not subject to serious dispute"). See also Bentivegna v. United States Dep't of Labor,
694 F.2d 619, 621-622 (9th Cir. 1982) (business necessity should not be confused with
expediency). Thus, substitution of categorical exclusion for individual evaluation requires that
all or substantially all of the individuals with the disability be unable to perform the job safely.
Chandler v. City of Dallas, 2 F.3d 1385, 1395 (5th Cir. 1993) (drivers with
insulin-dependent diabetes mellitus or extreme vision impairment presented genuine substantial
risk of
injury as a matter of law under Federal and municipal medical standards for primary
transportation jobs). Cf. Rosenfeld v. Southern Pacific Co., 444 F.2d 1219, 1225 (9th
Cir. 1971); Weeks v. Southern Bell Telephone Co., 408 F.2d 228, 235 (5th Cir. 1969)
(absent proof that entire class of individuals is unable to perform a job, employer may exclude
applicant only by showing individual incapacity).
We disagree with Exxon's premise that a relapse is almost
impossible to predict. The ALJ observed:
R. D. and O. at 30. Both Drs. Torres and Peoples testified to this effect. T. 330-335, 388-393,
710, 917-918, 929-932; R. D. and O. at 13-15.
Dr. Torres testified that he attempts to determine whether an
individual honestly has accepted his illness and realistically recognizes his vulnerability to
relapse. He examines networks of relationships established to help protect against recurrence
and the extent to which the individual is engaged in recovery activities, e.g., whether he
has "connected" with a sponsor and is attending support meetings. Factors suggesting relapse
include glibness about the illness, bitterness, hostility toward supervisors, absenteeism,
carelessness, depression, anxiety disorders, a tendency to "explain away" criticism and certain
"con" behaviors. For Dr. Peoples, symptoms include marital, legal or physical problems,
sleeplessness, arrogance and impulsiveness.23
The record in this case shows that while some portion of the
population treated for alcoholism will return to alcohol abuse, many persons will maintain
sobriety. T. 562, 567. The ALJ deemed relevant studies supporting the FAA's policy of
returning rehabilitated pilots to work, which report a high rate of success. R. D. and O. at 20-21.
As Plaintiff points out, other studies used undifferentiated populations, e.g., "the
unemployed, persons with mental disabilities, persons with physical damage from chronic
drinking." Plaintiff's 12/17/93 Resp. to Defendant's Exceptions at 57; R. D. and O. at 40. In
contrast, the FAA studies focused on commercial pilots recertified after remaining abstinent for
two years and producing clinical evidence of recovery. R. D. and O. at 20. The pilots are
comparable to Strawser, an engineer trained in gas production who has maintained sobriety for
many years and continues an AA regimen. Plaintiff's Resp. at 57 and n.26. We also are
persuaded by expert testimony pertaining to successful rehabilitation in the aviation and medical
communities. T. 385-393, 688-713.
According to Plaintiff's Exhibit 95 (FAA information concerning
alcohol monitoring
program), the success rate for recovering pilots was 85.5% in 1985. The success rate in 1992
was 90-94%. "Success" was defined as having no relapses over a two-year period following
return of medical certification. The exhibit explains that the FAA is responsible for issuing
pilots medical certificates which document their medical fitness. Each pilot must have a current
medical certificate to validate required piloting certificates. Alcoholics may not be certified. If,
however, an alcoholic is rehabilitated sufficiently, he may be granted an exemption or "special
issuance." The FAA requires that a responsible medical source sponsor any request for a special
issuance and imposes a period of surveillance following recertification. Once medical
certification is restored, continued certification is contingent on maintaining abstinence and
receiving favorable reports from monitoring sources during a 24-month period.
As of 1980, a pilot, appropriately sponsored, could return to duty
three months after completing intensive rehabilitation, which typically consisted of a month-long
program at an inpatient facility.24
Outpatient aftercare also was required. The FAA's Office of Aviation Medicine (OAM) states:
"As a result of our experience, it has become evident that it is possible to make informed
predictions about the future continued success of an individual's rehabilitation at an early date
after abstinence has been achieved and recovery has begun." PX 95. Initially, the FAA required
an extended period of abstinence -- between two and five years -- before exemption could be
considered. With the advent of more aggressive rehabilitation, the period was reduced. The
OAM states: "Active intervention techniques and vigorous professional treatments were
beginning to result in a higher proportion of permanent remissions." Id.
Reduction of the period between treatment and recertification
promoted self-reporting because alcoholic pilots no longer faced the prospect of losing their
licenses for an extended period. Dr. Torres testified that prior to the change in policy, for the
period between 1960 and 1976, a mere 29 pilots reported themselves or were reported for alcohol
dependency or abuse. After the period was shortened, the number of pilots increased to "580
plus pilots who had been identified as having an alcohol problem" between 1976 and the end of
1984. T. 691. Dr. Torres cited the difference in numbers as a basis for his opinion that Exxon's
policy of categorical exclusion offered a disincentive for "self-identifying" and seeking
treatment. T. 705-706, 747. In this sense, the policy "adversely impacts safety." T. 714 (Dr.
Torres). The ALJ agreed that
R. D. and O. at 33-34. Dr. Peoples testified that alcoholics comprise ten percent of the
general population. T. 923. Of the 3,000 persons filling designated positions at Exxon facilities,
only 40 individuals "had come forward with their alcoholism," causing Dr. Peoples to question
"what happened to the other 260" and "what [Exxon was] doing to . . . look at that problem." T.
924.
The FAA studies, in conjunction with the expert testimony cited
above, establish that successful rehabilitation is both possible and predictable. Exxon's policy,
however, removes an important incentive for achieving that rehabilitation.
Exxon also asserts that the elevated relapse rates shown in some of
the studies should obviate the need for individualized inquiry and that all individuals who
have had a problem with alcohol should be precluded from filling safety-critical
positions because relapse may be presumed. According to Exxon, 90% of all alcoholics relapse.
T. 1146 (Dr. Hayden). This percentage derives from DX 48D25 which states that "approximately 90
percent of alcoholics are likely to experience at least one relapse over the 4-year period following
treatment." T. 1154. Although the ALJ represented that OFCCP projected a relapse rate of
between 50 and 70%, R. D. and O. at 40, he appears to have misinterpreted the pertinent
testimony. Dr. Peoples testified "that after a 28-day or a month program of inpatient treatment,
the average relapse in the first year or two, roughly 30 to 50 percent of people relapse, which
means that the success rate is 50 to 70 percent success rate." T. 919-920 (emphasis
added). He later testified:
T. 935. Accordingly, we find that OFCCP set the rate of relapse at between 30 and 50%. The
ALJ interpreted these "statistics [as] pertaining to individuals within the first year or two after
treatment." R. D. and O. at 40. While the precise period is unclear -- either during or after the
first year or two -- suffice it to say that it constitutes an early stage of recovery.
Recovering alcoholics often fail initially. Rodgers v.
Lehman, 869 F.2d 259 (the nature of the disease requires that the alcoholic be permitted
some opportunity for failure in order to come to the acceptance of his disease which is critical to
its cure). Indeed, Strawser relapsed twice during 1981 and 1982 following initial treatment26 and thus would come within the
above-referenced percentages. The real question, however, is whether an individual's
rehabilitation
ultimately is successful. The studies establish a diminishing rate of relapse the longer abstinence
is maintained,27 reinforcing expert
testimony that "the longer a recovering alcoholic remains sober, the less likely he is to relapse."
R. D. and O. at 37. For example, Dr. Torres testified:
T. 387-388. See T. 998-999 (Dr. Peoples) (program for recovering physicians requires
two years of abstinence before medical practice may be resumed because the numbers show a
"significant reduction in relapse rates" after the two-year mark). Since rehabilitation is shown to
be possible, individualized inquiry is appropriate. Strawser has demonstrated a commitment to
sobriety over a period of years.28 His
work and medical histories legitimately were examined to ascertain that he was fit for duty in a
safety-critical position. Dr. Peoples testified:
T. 917-918.
The ALJ's analogy to Davis v. Meese, 692 F. Supp. 505,
511 (E.D. Pa. 1988) is apposite. There, "the FBI acknowledged that in the category of diabetics,
there is a subgroup of individuals [non-insulin dependent diabetics] whose handicap does not
pose the same risk as the others." R. D. and O. at 38. Accordingly, the FBI considered those
diabetics individually.
The ALJ reasoned:
Id. at 38-39. In contrast, a "binge" drinker with no history of abstinence and only
recently released from treatment likely would not be appropriate for high risk employment
because a relapse would be difficult to predict. T. 389-391 (Dr. Torres). See Altman v. New
York City Health and Hospitals Corporation, 903 F. Supp. 503 (S.D.N.Y. 1995)(risk of
relapse unacceptably high where physician, who was a binge drinker, had been visibly inebriated
while treating patients and only recently had undergone rehabilitation). This determination rests
on an individualized assessment of the individual's history, however.
The ALJ used many of the studies as "a frame of reference" but
decided that they "ultimately [were] not conclusive for purposes of this case." He faulted them
for relying on self-reporting and noted that those which showed a high rate of relapse relied on
data for "rehabilitated individuals during the first year or two after treatment." R. D. and O. at
19, 40; T. 934-935, 1146; DX 48F. "Different studies often had conflicting results."
Compare DX 48C with DX 48F at 5 (conflicting rates of inpatient abstinence
and relapse). He discussed DX 48I where 29 of 100 alcoholics had been abstinent for three years
or more. The study was "significantly biased toward severity of illness," DX 48I at 1148,
meaning that of the individuals sampled, 87% had abused alcohol for ten years, 80% had
undergone detoxification and 95% required drugs during withdrawal. He questioned whether the
study was "representative of the general population of substance abusers . . . ." R. D. and O. at
20.
DX 48J followed alcoholics for ten years after treatment. A total of
77% of the individuals reporting remission at two years also reported remission at ten years. DX
48J at 50. The criteria for remission permitted degrees of alcohol use, however. Id. at
48. PX 94, the AA
study, also was long-term. Between 20 and 30% of the sample maintained more than five years
of sobriety. PX 94 at 10. A total of 91% of individuals who maintained sobriety five years or
more remained sober and active in AA for another year. Id. at 22. This study, which
began in 1968 and ended in 1989, relied on "completed questionnaires for about 100,000
people." T. 934. According to Dr. Peoples, however,
T. 933-934.
The ALJ ultimately concluded that this evidence "d[id] not appear
reliable, as many of the studies introduced either contradict each other or are not representative
of
either the general population or of recovering alcoholics with histories similar to Strawser's." R.
D. and O. at 40. See T. 919 (Dr. Peoples)("One of the problems of many studies that are
done on alcoholism is that they're done on very skewed populations. They're done on people off
the street, or . . . on doctors, or . . . on individual groups that don't necessarily apply to the entire
disease."). We also note that many of these studies are dated or rely on dated data and thus do
not measure the results of more agressive intervention techniques and treatments instituted in
recent years.
In contrast, the ALJ considered the FAA studies to be relevant
because they were grounded on an industry-wide monitoring program for recertified pilots. R.
D.
and O. at 20-21; PX 71 at 15, 20; PX 95. As discussed above, these studies show successful
rehabilitation figures of 85.5% and 90-91%. The 1985 study included in its success rate pilots
who required a second special issuance, meaning that they may have relapsed after treatment. A
total of 79% of those receiving a special issuance had not relapsed since recertification, however.
Dr. Torres testified that "[the monitoring program's] success rate in maintaining long-term
sobriety is quite impressive." T. 710.
Although much of the "survey science" is problematic, we rely in
part, as did the ALJ, on that which appears most reliable and relevant to Strawser's
circumstances, i.e., the FAA studies. In Strawser's case, we have access to his
"behavioral science" contained in fitness for duty evaluations, and we rely on it also. Strawser's
history is comprehensive. At the time of transfer in September 1989, Strawser's sobriety dated
from January 1, 1983. After assignment to the LaBarge gas facility in 1985, Strawser spent five
years working successfully and safely in a high risk occupation. At no time during his history
with Exxon, beginning in 1981, did alcohol use or abuse affect his employment. A 90% relapse
rate simply does not pertain to this individual at this stage of recovery.
Drs. Torres, Peoples and Gendel agreed. Dr. Peoples testified:
T. 908-909. Dr. Torres testified similarly:
T. 775-776.
The dissent asserts that Strawser disclosed the continuing "allure"
of alcohol by confiding to a psychiatrist his "strong desire for a drink." As basis for the
assertion, the dissent cites to PX 68 which includes a transcription of Strawser's medical records
covering 12 separate meetings. A November 1990 entry concludes: "Feels a drink would be
nice.'" In this entry, Strawser also related that he had filed the instant Rehabilitation
Act complaint against Exxon, that he expected to look for other employment and that he had
experienced "a lot of anxiety, inner turmoil re[garding] this." Dr. Torres testified that he had
examined the "drink would be nice" comment in assessing Strawser's fitness for duty. He also
testified that the comment signified that "[Strawser] is honest, and he is observant of his relapse
potential. He is not trying to look good to the doctor. He is letting it all out." T. 407. In Dr.
Torres's opinion, the comment did not indicate "imminence of relapse." Id.
The dissent also attributes Strawser's request to be relieved from
shift work to his "fear of alcoholic relapse." In 1987 and early 1988, Strawser was assigned
temporarily to the Shute Creek gas processing facility on a "shift work" schedule, i.e.,
seven days on, seven days off, seven nights on, seven nights off. The assignment also involved a
considerable commute. During this period, Strawser experienced severe chest pains and was
diagnosed with viral pneumonia. He became dissatisfied with the assignment because it caused
problems with his health and interfered with AA attendance. At his request, Strawser was
returned to the field foreman position at the LaBarge DeHy in June 1988. Strawser's physician
was "concern[ed] that shift work posed a problem for [Strawser's] health." R. D. and O. at 4.
Strawser explained to the supervisor at Shute Creek that although he did not currently have a
drinking problem, he "didn't want to take any chances." T. 63. With regard to Strawser's
request to return to LaBarge, Dr. Torres testified: "[I]t shows good judgment [and] good
problem solving skills in that he is aware that this kind of activity stands a significant risk of
being detrimental to his recovery, and he took
Strawser's actions following the use of four ounces of alcohol
during the 1991 hunting trip also demonstrate the strength of his recovery. Despite the fact that
no one witnessed the lapse, Strawser reported it to his AA sponsor and support group
immediately upon his return. He increased his AA activities and with the help of his sponsor
"examined the reasons for his lapse and came to some understandings of what changes he needed
to carry out in order to bolster his recovery." T. 402 (Dr. Torres). Dr. Torres testified that
Strawser's "investment and his way of life is steeped enough in recovery that it . . . promotes
continued recovery and . . . serves as a . . . very strong corrective should some drinking occur as
it occurred that day." T. 378. Dr. Gendel concurred:
Gendel deposition at 100-101. Dr. Peoples testified that "[i]t does not take a real genius to look
at somebody who [in] nine years has had four ounces of alcohol and basically come to the
conclusion that he's pretty unlikely to drink." T. 918. What distinguishes Strawser is the
capacity to integrate the tools of recovery into his existence. That other recovering alcoholics,
who are responsible for elevated relapse rates present in some studies, may not share this
capacity should not effectively render Strawser "disabled."
Exxon asserts that no individual characteristic of a particular
alcoholic will serve to reduce the relapse rates shown by the studies. Exxon also asserts that
Strawser's work and medical histories are irrelevant and that the chances are between 30% and
90% that on any given day he will report to work impaired. These assertions belie both the
expert testimony of Drs. Torres, Peoples and Gendel and common sense. If the relapse rate of
any alcoholic really were a totally random 50%, for example, then the chance that Strawser will
report to work impaired is the equivalent of a coin toss. Strawser reported to work unimpaired
every single day since 1981 -- a period of nine years to date of transfer. This history translates to
roughly 2,500 straight coin flips landing heads up. History notwithstanding, Exxon asserts that
the chances are still 30-90% that Strawser will show up for work tomorrow impaired. We simply
cannot agree. The most reliable predictor of how Strawser will perform his job tomorrow is how
he performed his job over the past nine years.
The relevant FAA studies hardly substantiate categorical exclusion
of all rehabilitated alcoholics from positions designated safety-critical. R. D. and O. at 40-41.
Rather, categorical exclusion is an expedient means of avoiding any risk where individualized
assessment would distinguish between those persons who have rehabilitated themselves
successfully and those who have not. At bottom, Exxon's "never-ever" policy is based on a
judgment that rehabilitated alcoholics are forever disposed to relapse, certainly a "myth, fear or
stereotype" associated with alcoholism. In the instant case, the reality is contrary -- for an
individual like Strawser who has
maintained sobriety for years, any fear of relapse is not well-grounded.
We decline to abandon the section 503 requirement of
individualized inquiry in these circumstances. R. D. and O. at 38-44. The Exxon Valdez
notwithstanding, section 503 of the Rehabilitation Act mandates that Exxon not behave like the
cat that sat on a hot stove. That cat will never sit on a hot stove again. Of course, the cat will
never sit on a cold stove either. Section 503 requires an evaluation of the temperature of the
particular stove, not just a blanket policy to avoid all stoves.
Finally, Exxon asserts that Strawser's transfer to a non-safety
critical position constituted reasonable accommodation. To the contrary, the ALJ found that
Strawser was qualified to perform the job of field foreman at the LaBarge, Wyoming, gas facility
without accommodation. R. D. and O. at 28-31 (Strawser had performed the job
successfully and safely for five years prior to transfer and continued to function as a field
foreman at Gillette thereafter.).
Transfer to the Gillette oil field was discrimination, not
"accommodation." Exxon regarded Strawser as being disabled, whereas in reality he was able to
perform the job at LaBarge as well as any unimpaired individual with the requisite training and
experience. These circumstances "are analogous to capable workers discriminated against
because of their skin color or some other vocationally irrelevant characteristic." Vande
Zande v. State of Wis. Dep't of Admin., 44 F.3d 538, 541 (7th Cir. 1995). The issue of
whether the discrimination includes an employer's failure to make reasonable accommodation
arises only where the disability "interferes with the individual's ability to perform up to the
standards of the workplace . . . ." Id. As the court in Mantolete v. Bolger
recognized, "two questions must be asked," the first being whether the individual presently is
"qualified to perform the essential requirements of the job without a reasonable probability of
substantial injury to [himself] or others." 767 F. 2d at 1423. If the response to this question is
affirmative, "then employment cannot be denied based upon the handicap." Id. Only if
the response to the first question is negative does a second question concerning reasonable
accommodation need to be asked. In Strawser's case, and based on the instant record, the
response to the first question clearly is affirmative and, therefore, responding to the second
question is unnecessary.
We do not dispute that in other cases involving other individuals,
accommodation may be required.29 As
Drs. Peoples and Torres testified, accommodation could include testing, monitoring, physical
examinations, conversing with the rehabilitated individual's family, reports from supervisors,
continued treatment and a two-year sobriety requirement. R. D. and O. at 15-16. The key
consideration here, however, is that "each case [must] be individually assessed to determine what
type of monitoring would be necessary." Id. Exxon's policy of blanket exclusion does
not achieve this result. Even Dr. Kenneth Gould, Exxon's Director of Health Services,
recommended individual evaluation and criticized Exxon's policy for this omission. See
T. 555-568. Dr. Gould recommended monitoring because he believed that some rehabilitated
employees could return to designated positions if they demonstrated over a period of time that
they were "capable of sustained performance free of substance abuse." PX 100 at 2. See
R. D. and O. at 16 and n.27. Tom McDonagh, Exxon's Corporate Vice-President of Medicine
and Occupational Health, agreed. T. 564-565; PX 101. Dr. Gould recommended "daily
supervision by management for three months, to be decreased in a step wise' fashion based on
behavior and negative testing for alcohol, monthly meetings, random testing and medical
examinations, and
peer identification." R. D. and O. at 16 (footnote omitted).
An individual with a disability is responsible for informing the
employer that accommodation is necessary. The regulations provide:
41 C.F.R. § 60-741.5(c)(1). See 41 C.F.R. Part 60-741, Appendix B at 203.
Placing the responsibility on the individual empowers that person to decide whether he requires
accommodation.30
Here, Strawser never requested any form of accommodation in
order to perform the job of field foreman at the LaBarge DeHy. Certainly Strawser never
"requested a restructuring of the position which would require a substantial modification of
essential job functions" as Exxon has argued. R. D. and O. at 31. Accordingly, this situation is
readily distinguishable from those cases in which the employee starts the accommodation
discussion by requesting from the employer a change in working conditions and the employer
responds with an alternative accommodation proposal. Generally, at that point, the employer is
authorized to choose a reasonable accommodation.
Exxon asserts that because an employer is entitled to choose the
means of accommodation, it may choose to transfer Strawser rather than implement alternative
accommodations recommended by the ALJ. See R. D. and O. at 29-32. On this record,
however, the alternatives -- testing, supervisor evaluation and AA attendance -- did not require
Exxon to change any employment practices or policies and thus no "accommodation" on
Exxon's part was necessary. Cf. 29 C.F.R. § 1630.2(o) (accommodations entail
"modifications" or "adjustments" to the work environment or to the manner or circumstances
under which the position held is customarily performed). As a field foreman at LaBarge, a
position designated safety-critical, Strawser already was subject to drug and alcohol testing, both
random and "for cause," and to random searches. Exxon's policy provides:
R. D. and O. Appendix (emphasis added). Strawser's performance was evaluated by his
supervisor regularly. Both Drs. Torres and Peoples testified that Strawser needed little, if any,
monitoring. R. D. and O. at 31. Dr. Torres testified: "I don't believe that Mr. Strawser in
particular needs to be monitored. His sobriety is very stable. His commitment to maintaining his
lithium treatment is very stable. His responsiveness to directions from treatment personnel is
stable." T. 681. Dr. Torres also testified that Strawser was fit for duty in a high risk job,
including a job that involved no direct supervision. T. 378-380. Strawser attended AA on his
own time and without Exxon's assistance. In short, Exxon was not required to make any
modifications or adjustments "in its ordinary work rules, facilities, terms, and conditions" of
employment to enable Strawser to work. Vande Zande v. State of Wis. Dep't of Admin.,
44 F.3d at 542. Accordingly, Exxon was not entitled to choose the means of accommodation,
i.e., involuntary transfer, because Strawser did not require any accommodation.
Even assuming that accommodation was required, involuntary
transfer was not appropriate in this case. Rehabilitation Act section 503 contemplates
accommodation in the particular job held by the employee unless business necessity or financial
costs and expenses dictate otherwise. 41 C.F.R. § 60-741.6(d). Section 503 presupposes
an interactive process between employer and employee in arriving at suitable accommodation.
Under 29 C.F.R. Part 1630, the analogous ADA regulations, reassignment to a vacant position
"should be considered only when accommodation within the individual's current position would
pose an undue hardship."31 29 C.F.R.
Part 1630, App. (Section 1630.2(o) Reasonable Accommodation) at 407-408. Furthermore,
"reassignment may not be used to limit, segregate, or otherwise discriminate against employees
with disabilities by forcing reassignments to undesirable positions or to designated offices or
facilities. Employers should reassign the individual to an equivalent position, in terms of pay
[and] status." Id.
The ALJ found, in the alternative, that Exxon had not demonstrated
that "accommodation" in the form of testing,32 Exxon asserts that the March 1989 Valdez incident caused it to impose
the "never-ever" policy. Exceptions 36, 37, 39; T. 1298. Monitoring and testing should have
disclosed Captain Hazelwood's problem, however. Medical records provided to Exxon in 1985
showed that Hazelwood had been hospitalized in an alcohol rehabilitation facility, had been
diagnosed as suffering from episodic alcohol abuse, and needed aftercare treatment. After
hospitalization and a three-month leave of absence, Exxon returned Hazelwood to duty as a
ship's master. Rehabilitation was unsuccessful, and Hazelwood "continued to use and abuse
alcohol on and off duty up to the time of the grounding." DX 49 at 6. Exxon "failed to respond
to reports and evidence that it received of Captain Hazelwood's ongoing alcohol use and abuse,
and to take adequate steps to monitor his fitness to serve as a master in light of his history of
alcohol abuse." Id. See Plaintiff's 12/17/93 Resp. To Defendant's Exceptions at
Attachment A (admission to truth of facts in sentencing memorandum).33 supervisor evaluation and continued
AA attendance would constitute an undue hardship. R. D. and O. at 30-31. We agree that Exxon
failed to make the requisite showing. Strawser thus would not be subject to transfer since
reassignment should be considered only when accommodation in the
current assignment would pose an undue hardship. Transfer to Gillette limited Strawser's
promotional opportunities and reduced his status from field foreman at a state-of-the-art gas
facility to foreman at an oil field -- additional considerations militating against transfer.
III. Remedy
The ALJ recommended that Strawser be offered reinstatement to
the position of field foreman at the LaBarge, Wyoming, facility with the seniority and pay he
would have received had he not been transferred and that Exxon reimburse him for moving costs
and the loss realized on the sale of his house. The ALJ rejected Plaintiff's argument that Mrs.
Strawser should be reimbursed for lost wages. We agree with and adopt these findings. R. D.
and O. at 11-12, 44-45.
The ALJ declined to recommend any further action to abate the
violation. Plaintiff excepts to the omission, arguing that Exxon should be directed to discontinue
its policy of categorical exclusion. As Plaintiff points out, the Rehabilitation Act authorizes the
Department of Labor to "take such action" on any complaint of noncompliance "as the facts and
circumstances warrant, consistent with the terms of [the contractor's] contract and the laws and
regulations applicable thereto." 29 U.S.C. § 793(b). Certainly an order directing Exxon to
discontinue a policy that violates the affirmative action/nondiscrimination mandate of section
503 is an "action" which is "consistent with" the Rehabilitation Act.
The regulations implementing the Rehabilitation Act require
contractors, as a condition of obtaining a government contract, to institute employment practices
which are consistent with "the affirmative action obligation imposed by section 503 . . . ." 41
C.F.R. § 60-741.6. To this end, OFCCP may require modification of existing practices.
Id. Each contract must include an "affirmative action clause" which obligates the
contractor to take affirmative action to employ and advance in employment qualified individuals
with disabilities and to refrain from discriminating against such individuals on the basis of
disability. 41 C.F.R. § 60-741.4. A noncomplying contractor must "make a specific
commitment, in writing, to take corrective action to meet the requirements of the Act" before it
can be found to be in compliance. 41 C.F.R. § 60-741.26(g)(2).34 An order directing Exxon to "correct"
the policy of categorical exclusion is an "action" which is "consistent with the terms of [its]
contract," specifically the affirmative action clause. 29 U.S.C. § 793(b).
Plaintiff also argues that the authority to order a party to cease
discriminatory practices exists under analogous remedial legislation such as Title VII of the Civil
Rights Act of 1964. Dothard v. Rawlinson, 433 U.S. 321, 331-332 (1977). Cf. U.S.
Dep't of Labor v. Honeywell, Inc., and Teamsters Local 1145, Case No. 77-OFCCP-3, Sec.
Dec., June 2, 1993, slip op. at 30-34 (broad remedial authority under Executive Order No. 11,246
and 41 C.F.R. § 60-2.1).
The ALJ recognized that while Exxon "was attempting to deal with
the problem of alcoholism and drug abuse in the workplace and the serious human and
environmental damage that that problem can cause," the nondiscretionary policy implemented to
address the problem was "impermissibly inflexible." R. D. and O. at 43. In particular, the
"across-the-board policy prohibiting rehabilitated individuals from holding designated positions
does not differentiate between those who have been successful in rehabilitating themselves and
those who have not." Id. at 43-44. It thus violated the section 503 "mandate of
affirmative action and non-discrimination in employment," and absent application of the policy
"on a case-by-case basis," Exxon risked future violation. Id. at 44.
The ALJ noted, however, that implementation of the policy in
conformance with certain of Exxon's directives could permit individualized inquiry. The
directives state that any employee working in a designated position must report "1) past, present
or future alcohol or substance abuse, including participation in rehabilitation programs; 2) arrests
or traffic tickets received while under the influence of alcohol or drugs; 3) arrests for public
intoxication, possession, sale or distribution of controlled substances; and 4) any other incident
involving alcohol or drugs." Id. at 42. The ALJ observed:
Id. at 42-43.
Individualized inquiry would not be burdensome. Of the 3,000
employees working in designated positions, "if they reflect the population as a whole,
approximately 10% will be alcoholic." R. D. and O. at 42. Because of Exxon's pre-employment
screening, the percentage may be less. (According to Exxon, only about 40 employees were
transferred when the policy took effect.) Exxon would be required to evaluate only the
individuals whom it knew to have histories of substance abuse, rather than all 3,000 employees
filling designated positions. Id.
In these circumstances, we deem it appropriate to direct Exxon to
discontinue the policy of categorically excluding individuals with a history of alcoholism from
consideration for designated positions.
We find that Complainant Thomas Strawser is a qualified
individual with a disability under section 503 of the Rehabilitation Act and that Defendant Exxon
Corporation, d/b/a Exxon Company, U.S.A., failed to demonstrate that its 1989 Drug and
Alcohol Policy, as applied to Strawser, is consistent with business necessity and safe job
performance. Exxon thus violated section 503 of the Rehabilitation Act when it precluded
Strawser from working in the designated position at issue.
Exxon is ordered to offer Strawser reinstatement as field foreman at
the facility in LaBarge, Wyoming, with the seniority and pay he would have received had he not
been transferred to Gillette, Wyoming, in 1989 and to compensate him for costs attendant to his
return and for the loss realized on the sale of his house.35
Exxon also is ordered to refrain from discriminating against Strawser with
respect to employment decisions, including promotions, involving designated positions for which
he is qualified. Finally, Exxon is ordered to discontinue that portion of the 1989 Drug and
Alcohol Policy categorically excluding any individual who "has had" a problem with alcohol
from designated positions.
If, within sixty (60) days of this order, Exxon fails to comply with
any provision of the order, all of Exxon's Federal and federally-assisted contracts and
subcontracts shall be canceled and Exxon, its officers, subsidiaries and successors, shall be
ineligible for the award of any Government contracts or subcontracts, and shall be ineligible for
extensions or other modifications of any existing Government contracts or subcontracts, until
Exxon has satisfied the Assistant Secretary of Labor for Employment Standards that it is in
compliance with the provisions
of section 503 and the rules, regulations and orders issued thereunder which have been found to
have been violated in this case.
SO ORDERED
DAVID
A. O'BRIEN
JOYCE D. MILLER
Member Karl J. Sandstrom, dissenting:
This case presents the Board with the difficult task of identifying
the unobvious point where the law strikes the balance between public safety and the rights of
disabled individuals in the workplace. Where one yields to the other is a not a question
committed to the Board's discretion. Rather, our task is to examine the statute and its regulations
in the light of the case law and determine what the law requires of employers in choosing
between competing public demands. If the law permits an employer to take one course of action,
even if our judgment is that the public would be better served by a different employment
practice,
our obligation is to affirm the employer's decision. For the reasons more fully given below, I
depart from the Board's decision because I find that the law affords employers more leeway in
making these decisions than the Board recognizes.
I begin my dissent in agreement with the Board's finding that
Complainant is for the purposes of Section 503 of the Rehabilitation Act an "individual with a
disability." Even without taking into consideration Complainant's bi-polar disorder and its
connection to or influence upon Complainant's alcoholism, Complainant's history of alcoholism
alone is sufficient to establish that he is an individual with a disability. See Tinch v. Walters,
765 F.2d 599, 603 (6th Cir. 1985) (a recovered alcoholic is an individual with handicaps
within the meaning of the Rehabilitation Act). That alcoholism is a serious disease that can
substantially impair an individual's mental and physical
functioning is beyond dispute. Exxon offered substantial and unrefuted scientific evidence on
this very point. See DX 48G, 48H and 48MM. It is then somewhat disingenuous for
Exxon to contend that it does not consider Complainant's alcoholism to be a covered disability.
The fact that Exxon does not consider alcoholism to be a disqualifying condition for non-safety
related jobs is better evidence of its general compliance with its obligation under the
Rehabilitation Act than it is proof that it does not consider alcoholism to be a disability.
Regardless of whether Exxon considers alcoholism to be a disability, it is well settled for the
purposes of Rehabilitation Act that it is a covered disability. Teahan v. Metro-North
Commuter Railroad Company, 951 F.2d 511, 517 (2nd Cir. 1991).
Because I find that alcoholism can manifest itself in the substantial
impairment of physical and mental functioning, I find no reason to conclude that Complainant
was a covered individual with a disability because Exxon regarded him as having a
disability. Complainant is a covered individual because he suffers from the disease of
alcoholism. Complainant's admirable and sustained efforts to control his alcoholism only
underscore the terrible and persistent nature of this disease. To suggest, as the majority does,
that
Complainant is a covered individual largely because Exxon regarded him as such is to diminish
Complainant's own efforts to control his disease and Exxon's legitimate public safety concerns.
Once it is established that an individual suffers from a disability, there is no reason to proceed
with an analysis of whether the defendant regarded the individual as disabled. At this point of
the analysis, defendant's state of mind is irrelevant. The focus instead should turn to second step
of the required legal analysis and whether the individual is "otherwise qualified" with or without
reasonable accommodation. School Board of Nassau County, Florida, et al v. Arline,
480 U.S. 273, 287 (1987).
It is at this stage of the analysis that I part company with my
colleagues. The majority has concluded that Complainant must be permitted to return to his
previous position without the imposition of any accommodation. I question the confidence with
which the majority issues this finding, because immediately upon rendering it, the majority notes
Exxon's failure to demonstrate that an accommodation by means of testing, supervisor
evaluation and continued AA attendance would constitute an undue hardship. Why even suggest
an accommodation where none is necessary unless one entertains doubts about the initial
determination. Inasmuch as the majority later in its decision concludes that Complainant could
refuse the imposition of any accommodation, Exxon is left to wonder why the Board would
speculate about an accommodation which the
company could not legally impose. Because I believe the majority's decision is constructed on a
very shaky legal and factual foundation, I suspect that the majority speculates about possible
accommodations because it fears that its finding that no accommodation may be imposed on
Complainant may be upset on appeal. A review of facts of this case demonstrates why such fears
would be well grounded.
Complainant was employed by Exxon as a Field Foreman at a
major natural gas field in Wyoming. In this largely unsupervised position Complainant was
responsible for the development and -- in the event of an accident -- the implementation of
contingency plans to protect the safety of the personnel working at the plant and the people of the
surrounding community. It is undisputed that an accidental leak at this field could result in a
major disaster, endangering the health and lives of the people working there and those living in
the surrounding area. Nor is it disputed that Complainant's position was critical to the
prevention and containment of such accidents. Concededly, the possibility of such an accident
was remote if for no other reason than such fields would not be legally allowed to operate if they
posed an imminent threat to the public safety. For that matter, the accident at Three Mile Island
prior to its occurrence would have been deemed a remote possibility. It is the catastrophic
consequences not the likelihood of an accident that justify great and costly precautions in these
situations.
Complainant is a recovering alcoholic. He was first diagnosed to
be an alcoholic in 1980. Two of his siblings are also alcoholics. He began receiving treatment
for his alcoholism in 1981. Complainant entered a treatment center in 1981 for a twenty-eight
day program and became active in Alcoholics Anonymous. Complainant continued to
experience difficulty in achieving sobriety. His AA sponsor noticed that he exhibited certain
manic tendencies and speculated that these tendencies might have been contributing to his
inability to achieve sobriety. At his sponsor's suggestion, he reentered the center for a five day
treatment program. During treatment for his alcoholism, Complainant was diagnosed as
suffering from bi-polar disorder, which is also known as manic depression. His physician
prescribed lithium to control his manic depression and to aid in his quest for sobriety.
There is some evidence that Complainant's bi-polar disorder may
have triggered his alcoholism.36 In
any
event, Complainant was able to achieve sobriety in January 1983 while on lithium.37 When Complainant moved to the
LaBarge in March 1985, he chose to discontinue taking lithium. Despite discontinuing his
lithium treatment, Complainant was able
to sustain sobriety while at LaBarge. Complainant continued his attendance at AA meetings and
followed AA precepts while at LaBarge. His fear of alcoholic relapse did lead him to request
along with his doctor that Exxon accommodate him by taking him off shift work. Exxon
honored this request. When his manic symptoms reappeared in 1990, Complainant sought
medical advice and was put back on lithium. He remains on lithium to this day. During his
treatment, he disclosed to his doctor the continuing allure of alcohol. Complainant also admits to
drinking during the pendency of this case while on a hunting trip in October of 1991.
Under these facts, I am unable to find that Complainant without
accommodation is to be considered as a matter of law to be otherwise qualified under section
504. "An otherwise qualified person is one who is able to meet all of a program's requirements
in spite of his handicap." Southeastern Community College v. Davis, 442 U.S. 397, 406
(1979). This includes any requirement reasonably designed to protect the public safety. As the
Fifth Circuit held in Chiari v. City of League City, 920 F.2d 311, 316 (5th Cir. 1991): "a
significant risk of personal injury can disqualify a handicapped individual from a job if the
employer cannot eliminate the risk."
In Bradley v. University of Texas M.D. Anderson Cancer
Center, 3 F.3d 922 (5th Cir. 1993), the circuit court had occasion to expand upon its analysis
of the relationship between safety demands and a finding that a person is "otherwise qualified."
The case involved a surgical assistant who, upon revealing that he was HIV positive, was
transferred to another position in the hospital. In upholding the transfer from a challenge under
the Rehabilitation Act, the court found, at 924:
These cases are in accord with the regulations implementing
Section 501 of the Rehabilitation Act which define a "qualified handicapped person" as one who
"can perform the essential functions of the position in question without endangering the health
and safety of the individual or others . . . ." C.f. 29 C.F.R. § 1613.702(f).
Measured against this standard, I believe Exxon is fully
justified in conditioning Complainant's continuing employment on his acceptance of a
reasonable accommodation designed to satisfy Exxon's legitimate safety concerns. Although it
is undisputed that Complainant's education and experience provide him with the requisite skills
to function as a field foreman, and the record demonstrates that he has done so for five years in
an exemplary manner, the risk of relapse remains ever present, as do the catastrophic
consequences that could accompany an accident attended to by an individual in an impaired
condition. Exxon has an obligation, as did the defendant in Altman v New York City Health
and Hospitals Corporation, 903 F. Supp. 503 (1995) (Hospital refused to reinstate alcoholic
physician as Chief of its Department of Internal Medicine), "to weigh carefully the public safety
concerns that an undetected relapse might entail." at 509.
In Hogarth v. Thornburgh, 833 F. Supp. 1077 (S.D.N.Y.
1993), the court was confronted with the question whether the F.B.I. could terminate a clerk
suffering from bi-polar disorder if his condition were controllable with medication. Judge
Francis wrote at 1083:
On this basis, along with evidence of Mr. Hogarth's post-termination relapse, the court found the
plaintiff was not "otherwise qualified". In the instant case Exxon did not terminate Complainant
but seeks only to impose certain accommodations to protect the public safety on his continuing
employment.
To find that Complainant requires no accommodation, the majority
must downplay the significance of Complainant's volitional use of alcohol during the pendency
of this matter. According to his own testimony, Complainant's resort to alcohol was the result of
stress or in his own words "everything just got to me . . . ." (T. 255). I cannot agree with the
majority that Complainant's "lapse" ultimately demonstrated his control. For me it demonstrates
the continuing allure, particularly in times of stress, that alcohol holds for him. This conclusion
is supported by other actions of Complainant. To aid in his recovery, Complainant upon doctor's
advice, sought relief from shift work, a request which Exxon honored. In November 1990
Complainant confided to his doctor his strong desire for a drink. (PX 68). At that time his
physician ordered additional medication to control his tension and anxiety. It is clear then from
the evidence that Complainant's recovery is not complete. Under the circumstances Exxon's
effective options are limited. Exxon is unable to determine the amount of stress in
Complainant's life or guarantee Complainant's compliance with his recovery plan; therefore, to
protect the public and its employees, Exxon is restricted to taking those actions that are within its
control.
Exxon's fear of relapse is not baseless. Although the risk of relapse
cannot be precisely quantified, the best available science strongly suggests that Exxon's fear is
well grounded. The studies introduced in the hearing below document the risk. Exhibit 48D,
the October 1989 edition of Alcohol Alert, published by the National Institute on
Alcohol Abuse and Alcoholism reports: "There is evidence that approximately 90 percent of
alcoholics are likely to experience at least one relapse over the 4-year period following treatment.
Despite some promising leads, no controlled studies have shown any single or combined
intervention that prevents relapse in a fairly predictable manner." It goes on to report on a study
that "revealed that most relapses were associated with three high risk situations: (1) frustration
and anger, (2) social pressure and (3) intrapersonal temptation." I would note that each of these
risk factors is largely beyond an employer's ability to control. A second study, Exhibit 48F,
recites the results of a Rand Corporation study that found among the alcoholics who received
treatment and were followed "that only seven percent of men
abstained throughout the course of the study's four year follow-up."
The risk of relapse is also well documented in Exhibit 48I, a study
by Dr. George Vallant of Dartmouth Medical School. His study, one of the few prospective
studies on relapse, found that 95 percent of the alcoholics who received treatment and then were
followed resumed drinking at some point during the eight year follow-up. He also concluded
that
"to a remarkable degree, relapse occurs as independent of conscious free will and motivation."
Even the studies relied upon by Complainant support a finding that the risk of relapse is
substantial. For alcoholics who remain active in AA, only twenty to thirty percent were able to
maintain sobriety for five years. (PX 94). Of those who reported five years of sobriety, nine
percent of those who remained active in AA relapsed in the sixth year. As the record
demonstrates, these studies tend to err on the low side in calculating relapse because of the
reliance of the studies on self-reporting. Only about fifty percent of those interviewed are
truthful about their consumption of alcohol. (T. 1148). This fact alone is a good reason why
Exxon in this case should not be compelled to rely on a complainant's good faith compliance
with his recovery program.
As serious as the risk of relapse is among the general population of
alcoholics, the evidence suggests that it is heightened in persons suffering from bipolar disorder.
(DX 48L, M and N). Based on these studies and the hearing record, I find Exxon's fear of
relapse to be well substantiated. I do not dispute that decision makers and employers among
them could benefit from studies that more precisely identified individual characteristics that were
implicated in relapse. Regrettably, the science has not progressed to that stage. The question
then becomes: absent such evidence, is an employer when confronted by a substantial public
safety concern compelled to rely on the unvalidated by scientific study recommendations of
consulting psychologists? In light of the potentially catastrophic consequences of a wrong
decision, uncertainty calls for prudence. An employer is given latitude in these circumstances.
Huber v. Howard County, 849 F.Supp. 407, 414 (Md. 1994). Therefore, I conclude
Exxon could reject the opinions of the consulting witnesses in this case in favor of the available
science and condition Complainant's continued employment on his acceptance of a reasonable
accommodation.
My colleagues suggest the law is otherwise and Complainant was
denied the individualized assessment that the law requires. I respectfully disagree. As the court
in Carr v. Reno, 23 F.3d 525, 530 held: " individualized inquiry' need be no more
extensive than
the facts of the case demands." Because the most compelling facts of this case (i.e. those
validated by scientific study) place Complainant in a population that is at significant risk of
relapse, Exxon was not required to reject the available scientific evidence in favor of the more
subjective evaluations of Complainant's consulting witnesses. Complainant's individual medical
history does not rescue him from the population that is at risk, rather it encumbers him with some
of the very characteristics that suggest an elevated risk (e.g. family history of alcoholism,
bipolar disorder, previous relapses and continued craving.) Complainant's admirable battle with
alcoholism suggests that he is currently winning in this struggle, but it is the never ending nature
of that struggle that permits Exxon to impose certain accommodations on his continued
employment. Again it is instructive to note that Complainant's own witnesses suggest certain
accommodations would be appropriate.38
The majority is correct in noting that in most cases individual
inquiry into whether an individual can perform the essential function of a job is required before a
person may be denied employment. School Board of Nassau County v. Arline, 480 U.S.
273 (1987). This obligation is particularly pronounced in instances where an individual's current
capacity to perform a job is at issue. Often in these cases a test can be devised to evaluate
whether or not an individual is capable of performing the particular physical and mental tasks
required by a job. This obligation is necessarily different when evaluating a job qualification that
is directed towards latent risk as opposed to current capacity. Inherent in risk assessment is a
reliance on use of general characteristics shared by the population being evaluated. The very
purpose of risk assessment is to identify general characteristics that can be demonstrated by
proper study to have predictive value (i.e. capable of explaining a particular outcome).
The case law demonstrates that the demands of individual inquiry are very different when the
goal is to identify acceptable level of risk.
In Chandler v. The City of Dallas, 2 F.3d 1385 (5th Cir.
1993), the circuit court upheld a challenged Federal Highway Administration regulation
prohibiting insulin dependent diabetics and individuals with corrected vision of less than 20/40
from being employed as Primary Drivers.39 While expressing "hope that medical science will soon progress to the point
that exclusions on a case by case basis will be the only permissible procedure, or hopefully,
methods of control may become so exact that insulin-dependent diabetics will present no risk of
ever having a severe hypoglycemic episode,'" the court upheld the blanket exclusion of the
regulations. Chandler, at 1394.
Similarly, in Ward v. Skinner, 943 F.2d 157 (1st Cir. 1991)
the petitioner, a truck driver with a history of epilepsy but who took anticonvulsant drugs and
had
been seizure-free for seven years challenged a Department of Transportation regulation that
prohibited persons with a history of epilepsy from driving trucks in interstate commerce.
Although conceding that the risk of someone like the petitioner having a seizure while driving
was very low, the circuit court upheld the regulations pending further general studies and
investigations, "designed to turn up general features tending to show greater or lesser, degrees of
risk." Ward, at 164.
I find Judge VanArtsdalen's discussion of this issue in Davis v.
eese, 692 F. Supp. 505 (E.D. Pa. 1988) particularly persuasive. At issue in that case were
the regulations of the Federal Bureau of Investigation which excluded insulin-dependent
diabetics from applying for positions as special agents or investigative specialists. At 517, Judge
VanArtsdalen responds to an argument very similar to Complainant's:
Faced with the medical uncertainty, Judge VanArtsdalen concluded that deeper individual
inquiry was not required.
Collectively these cases stand for the proposition that individual
inquiry need be no more extensive than the current state of medical knowledge justifies. When
confronted with specter of catastrophic loss, an employer need not ignore the available science in
favor of the more impressionistic judgments of consulting witnesses.40 These judgments however well
bolstered by professional experience remain conjectural until or unless validated by scientific
study. The risk of error on the part of a consulting psychologist is not one that an employer is
legally required to assume. If I am correct that this is the law in the above refusal to employ
cases, I would suggest that the standard in cases like the instant one in which an employer seeks
only to impose certain accommodations on continuing employment would certainly be less
stringent. Consequently, I would find that in light of the risk that the unaccommodated
employment of Complainant as a gas field foreman would pose to the public safety that Exxon as
a matter of law may impose accommodating conditions on his continued employment.41
The majority suggests that even if it were to concede that Exxon
was within its rights to impose an accommodation on Complainant, Exxon's choice of
accommodation was not justified. For a number of reasons, I find that conclusion unsupportable.
First, the case law is clearly to the contrary. The ultimate discretion to choose the specific
accommodation accorded an employee lies with the employer. See Vande Zande v.
Wisconsin Department of Administration, 851 F. Supp.. 353, 359-360 (W.D. Wisc. 1994),
Kuehl v. Wal-Mart Stores,Inc., 909 F. Supp. 794, 802 (Col. 1995), and Kerno v.
Sandoz Pharmaceutical Corporation, No. 93 C 20112, 1994 U.S. Dist. LEXIS 13265 (N.D.
Ill. 1994).
Second, the accommodation offered by Exxon was on its face
reasonable. Exxon gave Complainant a choice between remaining at LaBarge in a non-safety
sensitive engineering position with his pay and benefits protected for five years or transfer to the
identical position of Field Foreman at the Gillette oil field. If he remained at LaBarge, he was
told that Exxon would seek to find him a position for which he was qualified equivalent to Field
Foreman and if and when there was such a vacant position he would be entitled to it. He chose
to transfer to the position in Gillette. There he was given the position of Field Foreman with
virtually identical duties and with the same pay, benefits and opportunities
for advancement. In fact the opportunities for promotion were probably greater in Gillette than
they were at LaBarge. (T. 231-236). Recent case law supports a finding that the proposed
accommodation was reasonable.
In Kerno the plaintiff, a salesman, suffered from obsessive
compulsive disorder, post traumatic stress disorder with a secondary reactive depression and
chronic depression. He found that these conditions made it difficult for him to work
with a new supervisor. He asked his employer to redraw the sales regions so that he could work
under a different regional sales manager. His employer refused to consider this alternative and
instead offered to transfer him to his choice of open sales positions. Contending that a transfer
would complicate his medical treatment and disrupt his family life, he declined the transfer and
sued under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.,
alleging that his employer had failed to reasonably accommodate him. In granting summary
judgment for the defendant, the court found that no jury could find a transfer under which the
plaintiff retained all aspects of the job he held including job description, title, compensation and
benefits to be an unreasonable accommodation. Kerno, at 23.
In Guice-Mills v. Derwinski, 967 F.2d 794 (2nd Cir. 1992)
the plaintiff was a head nurse who suffered from a number of maladies, among them depression,
severe anxiety, insomnia and migraine headaches. Upon her physician's recommendation, she
requested a change in her duty hours. In response to her request, her employer offered her a
position as a staff nurse with the requested hours and at the same pay as a head nurse. Unwilling
to accept the demotion, she sued under the Rehabilitation Act claiming that her employer had
failed to reasonably accommodate her disability. In rejecting her claim, the circuit court held
that
"(w)hen an employer offers an employee an alterative position that does not require a significant
reduction in pay and benefits, that offer is a "reasonable accommodation" virtually as a matter of
law. Guice-Mills, at 797.
Lastly, in Kuehl the plaintiff, a door greeter at a wholesale
store, was diagnosed as suffering from chronic tibula tendinitis which prevented her from
standing throughout her shift at work. She requested that she be given a stool to sit on as needed
during the course of her shift. Her employer denied the request, but offered her a position as a
cashier or in the alternative, agreed to split her shift to enable her to reduce the stress on her legs.
She sued under the ADA. The court ruled that "(t)he plaintiff, by rejecting two reasonable
alternative accommodations has lost any
status she may have had under the ADA, as a qualified individual with a disability." Kuehl,
at 803.
With these cases serving as guideposts, I find no basis upon which
it can be concluded that Exxon's proffered accommodation was anything less than reasonable.
Indeed I find it to be generous and fairly considered. In the present case, the majority's opinion
presupposes that testing, supervisor evaluation and AA attendance would be a more effective
accommodation. Regardless of the merits of that judgment, for the reasons given above, I think
legally it is of no consequence. Nonetheless I think the majority's view is suspect and merits
some comment.
Some of the shortcomings of the monitoring and supervision
program that the majority touts are set out in Altman v New York City Health and Hospitals
Corporation, 903 F. Supp. at 511. In Altman, the plaintiff, a recovering alcoholic,
resisted his demotion from Chief of Internal Medicine to staff physician and contended that the
defendant hospital should in lieu of demoting him have subjected him to the "professional
monitoring" program proposed by the Committee on Physicians' Health. The court identified
two problems common to such monitoring programs:
Then later:
These are among the reasons that Exxon rejected a monitoring and
supervision program in favor of its policy. (See testimony of
Dr. Hayden). The majority is nevertheless concerned that Exxon's policy may actually
discourage self-reporting and drive alcoholics underground. This is a legitimate fear but not
necessarily the inevitable outcome of Exxon's policy. Under Exxon's policy, an individual
suffering from alcoholism has three choices. First, he could disclose his alcoholism and be
transferred to an equivalent non-designated position while maintaining his pay and benefits and
his entitlement to medical treatment. Second, he could fail to disclose and maintain sobriety.
Third, he could fail to disclose and relapse and run the risk of the relapse being detected through
testing, medical records or reports of his colleagues. The third choice poses the greatest risk to
the individual because if his relapse is detected, he would lose his job and benefits. If he chooses
courses one or two, Exxon and the public safety would benefit. I find no reason to believe that
outcome three is more likely than the others. Even if I did, I believe employers retain the
discretion to craft safety policies provided that those policies are not a mere pretext for
discriminating against individuals with disabilities.
Exxon continues to examine its policies in light of the available
evidence. Its policies are the matter of much debate in the corporation. (See testimony
of James Rouse). As it examines the experience of other companies and organizations, it intends
to regularly revisit its policy to determine whether or not it best serves the interests of the
company and public. Rather than compelling businesses to adopt the one model endorsed by the
majority (i.e FAA's), employers should be encouraged to constantly rethink and when
appropriate modify their policies. There is no right answer to combating the dangers posed by
substance abuse in the workplace. There are only partial, evolving solutions. Exxon's response
may not be the best, but as it was applied to Complainant, it did not violate the Rehabilitation
Act.
This brings me to my last point. My dissent is addressed to the
facts of this case. I do not hazard a guess as to whether Exxon's policy as it has been applied in
other cases would violate the Rehabilitation Act. Exxon may or may not have over designated
the number of positions as safety sensitive. The accommodations offered other employees may
or may not be reasonable. For that matter, by the time this decision is issued Exxon may have
changed its policy. Claims under the Rehabilitation Act are fact specific. With only the
illumination of the facts of a particular complaint, I would not arrogate the responsibility to
supervise general compliance with the law. Employers should be given the opportunity to adjust
their safety policies in light of specific decisions, rather than be compelled to discard their
policies in response to a general indict. Wrongs against specific individuals can be corrected.
Public safety should not be compromised pending review and implementation of an alternative
policy. Therefore I believe the Board's order is unnecessarily and overly broad insofar as it
addresses the treatment of employees whose cases are not before this Board.
KARL J.
SANDSTROM
1 On April 17, 1996, the Secretary of
Labor delegated authority to issue final agency decisions under, inter alia, the
Rehabilitation
Act of 1973, and the implementing regulations, to the Administrative Review Board. Secretary's
Order 2-96 (Apr. 17, 1996), 61 Fed. Reg. 19978 (May 3, 1996). Secretary's Order 2-96 contains
a comprehensive list of the statutes, executive order, and regulations under which the
Administrative Review Board now issues final agency decisions.
2 The Rehabilitation Act
Amendments of 1992, Pub. L. No. 102-569, 106 Stat. 4344 (Oct. 29, 1992), amended the
Rehabilitation Act of 1973, 29 U.S.C. §§ 701-797b, substituting the term
"individuals with disabilities" for "individuals with handicaps." Title I of the Americans with
Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101-12117 (1994) also addresses
"disabilities," which "represents an effort by [Congress] to make use of up-to-date, currently
accepted terminology." S. Rep. No. 116, 101st Cong., 1st Sess. 21 (1989); H.R. Rep. No. 485 pt.
2, 101st Cong., 2d Sess. 50-51 (1990). The revision does not reflect a change in definition or
substance. Id. The Rehabilitation Act states that complaints filed under section 503 and
under the ADA should be "dealt with in a manner that avoids duplication of effort and prevents
imposition of inconsistent or conflicting standards . . . ." 29 U.S.C. § 793(e). See
42 U.S.C. § 12117(b) (ADA).
3 After the gas is processed at
Shute Creek, gas products are shipped to market by pipeline and rail.
4 Between 1982 and 1991,
Strawser maintained a perfect record of work attendance. T. 105, Plaintiff's Exhibit (PX) 6. In
1992, he missed a day of work due to the flu. Id.
5 During the five-day treatment
program in August 1981, Strawser was diagnosed as having bi-polar affective disorder, involving
mood fluctuations manifested by periods of increased energy followed by depression and loss of
energy. According to Dr. Michael Gendel, a psychiatrist, Strawser's alcoholism followed his
bi-polar disorder chronologically, and the disorder may have precipitated the alcoholism. PX 65.
See T. 394-397, PX 56 at 3-4. Dr. Ulysses S. Grant Peoples, a physician, and Dr. Walter
Torres, a clinical psychologist, did not believe that the alcoholism and the disorder interacted. R.
D. and O. at 15 and n.25. Strawser's bi-polar disorder is controlled with lithium. R. D. and O. at
9-10. Both Drs. Torres and Gendel testified that the disorder did not render Strawser unfit for
duty in a high risk occupation.
6 The ADA uses similar
language. See 29 C.F.R. § 1630.4 (1995) ("It is unlawful for a covered entity to
discriminate on the basis of disability against a qualified individual with a disability in regard to
[h]iring, upgrading, promotion, award of tenure, demotion, transfer . . . [j]ob assignments, job
classifications, organizational structures, position descriptions, lines of progression . . . ."); 29
C.F.R. § 1630.5 ("It is unlawful for a covered entity to limit, segregate, or classify a job
applicant or [an] employee in a way that adversely affects his or her employment opportunities or
status on the basis of disability.").
7 Individuals also come within
this category if they have an impairment which is substantially limiting only because of attitudes
of others toward the impairment. For example, a job applicant's facial scar may be substantially
limiting because the prospective employer believes it will dissuade customers. Finally, an
individual with no impairment may be regarded as having one that is substantially limiting. This
circumstance would encompass discrimination based on a mistaken belief that an individual is
physically or mentally impaired or on genetic information relating to illness, disease or disorders.
Although questions may arise as to whether Strawser, whose alcoholism was diagnosed in 1981
and who completed rehabilitation within a year or two, still was impaired seven years later; the
important consideration is Exxon's perception.
8 Contrary to Exxon's
contention, Congress clearly intended coverage of individuals treated for alcoholism. Little
v. Federal Bureau of Investigation, 1 F.3d 255, 257 (4th Cir. 1993); Teahan v.
etro-North Railroad Co., 951 F.2d 511, 518 (2d Cir. 1991), cert. denied, 113 S.Ct.
54
(1992); Tinch v. Walters, 765 F.2d 599, 603 (6th Cir. 1985); Rodgers v. County of
Yolo Sheriff's Dep't, 68 Fair Empl. Prac. Cas. (BNA) 155, 160 (E.D. Cal. 1995); Burka
v. New York City Transit Authority, 680 F. Supp. 590, 597 (S.D.N.Y. 1988); Whitlock
v.
Donovan, 598 F. Supp. 126, 129-131 (D.D.C. 1984), aff'd mem. sub nom. Whitlock v.
Brock, 790 F.2d 964 (D.C. Cir. 1986). See H.R. Rep. No. 1149, 95th Cong., 2d
Sess. 22-23, reprinted in 1978 U.S.C.C.A.N. 7312, 7334 (Rehabilitation Act "protects
otherwise qualified self-reformed or rehabilitated alcoholics . . . from unreasonable
discrimination); School Board of Nassau County v. Arline, 480 U.S. at 285 n.14 (In
excluding only alcoholics whose current use of alcohol prevented them from working or whose
employment would constitute a direct threat to safety, Congress recognized that employers might
have legitimate reasons not to employ alcoholics "but also understood the danger of improper
discrimination against such individuals if they were categorically excluded."). Cf. Flynn v.
Raytheon Company, 868 F. Supp. 383, 385 (D. Mass. 1994) (coverage of alcoholics under
ADA); Schmidt v. Safeway, Inc., 864 F. Supp. 991 (D. Or. 1994) (same).
9 We agree with Plaintiff that
by expressly excluding only specified current alcoholics, this section recognizes that alcoholics
not meeting the specifications are covered. See Plaintiff's 8/7/95 Resp. to Supp. Briefs
at 8-9.
10 "An employer may require, as
a qualification standard, that an individual not pose a direct threat to the health or safety of
himself/herself or others." 29 C.F.R. Part 1630, App. at 409.
11 We agree with the ALJ that
Strawser's single use of four ounces of alcohol during a hunting trip in October 1991, after eight
years of abstinence, did not affect his employment. R. D. and O. at 37-38. See R. D.
and O. at 8-9. The incident was a "lapse," as opposed to a "relapse," since it did not represent a
return to alcohol dependency or abuse. See T. 376-378, 770-771 (Dr. Torres); T.
920-921 (Dr. Peoples); Gendel deposition at 76-77; R. D. and O. at 17 and nn.29,30. We also
agree
with Plaintiff that the incident ultimately demonstrated Strawser's control. He immediately
listened to his AA tapes and upon returning to LaBarge admitted the lapse to his AA group and
recommenced the 12-step program. Plaintiff's 12/17/93 Resp. to Defendant's Exceptions at 54.
12 Alcohol "dependence" is
characterized by continuous drinking. In contrast, alcohol "abuse" generates dysfunctional
behavior. See, e.g., Rodgers v. Lehman, 869 F.2d at 255 (alcohol abuse characterized
by episodic or "binge" drinking -- excessive drinking followed by period of abstinence).
13 Under section 503 of the
Rehabilitation Act, a qualified handicapped individual is "capable of performing a particular job,
with reasonable accommodation to his or her handicap." 41 C.F.R. § 60-741.2. Under the
ADA, a qualified individual with a disability "satisfies the requisite skill, experience, education
and other job-related requirements of the employment position . . . and . . . with or without
reasonable accommodation, can perform the essential functions of such position." 29 C.F.R.
§ 1630.2(m). Congress intended that standards under the Rehabilitation Act and the ADA
be consistent. 29 U.S.C. § 793(e); 42 U.S.C. § 12117(b). The Rehabilitation Act
regulations recently were revised to incorporate the "with or without reasonable accommodation"
language. 41 C.F.R. § 60.741.2(t), 61 Fed. Reg. 19,336, 19,352 (1996).
14 Exxon's argument similarly
fails under an alternative standard. Absent imminent risk of injury, the only material question is
whether the individual is capable of performing the duties of the job. E.E. Black, Ltd. v.
arshall, 497 F. Supp. at 1103 ("non-imminent risk of future injury . . . does not make an
otherwise capable person incapable"). Strawser could pose an imminent risk only if he currently
were abusing alcohol or if he were at high risk of relapse. He is neither. In this case, then, the
issue of risk, i.e., reasonable probability of substantial harm, pertains only to justifying
job qualification requirements. See discussion, infra.
15 The court in
Mantolete stressed that exclusion could not be based "merely on an employer's
subjective evaluation or, except in cases of a most apparent nature, merely on medical reports."
767 F.2d at 1422. Rather, the employer was charged with "gather[ing] all relevant information
regarding the applicant's work history and medical history, and independently assess[ing] both
the probability and severity of potential injury." Id. A comprehensive, individualized
examination is required in order to "prevent employers from refusing to give much needed
opportunities to handicapped individuals on the basis of misinformed stereotypes." Id.
In addressing exclusionary standards, courts are charged with "determining whether the
defendant's justifications reflect a well-informed judgment grounded in a careful and
open-minded weighing of the risks and alternatives or whether they are simply conclusory
statements .
. . used to justify reflexive reactions grounded in ignorance or capitulation to public prejudice."
Arline v. School Board of Nassau County, 772 F.2d 759, 764-765 (11th Cir. 1985),
aff'd, 480 U.S. 273 (1987).
16 The dictionary defines
"sobriety" as "temperance or moderation" in the use of alcohol. "Sober" is defined as "temperate
or sparing in the use of alcohol; not drunk." Strawser ceased using alcohol on January 1, 1983.
He suffered a lapse during the October 1991 hunting trip when he took two or three swallows of
alcohol. He testified that at a social function somebody might give him something alcoholic by
mistake or he might pick up the wrong drink. It remains clear, however that the October lapse
represented the only intentional instance of alcohol use in many years. There is no evidence that
Strawser abused alcohol at any time after January 1983 by returning to alcoholic drinking.
See T. 920-921 (alcoholic drinking is drinking accompanied by dysfunctional behavior
such as continuing to drink or operating an automobile). In contrast, after Strawser ingested the
alcohol, he returned to abstinence and his recovery program.
17 These stressors included "his
step-daughter's death, his step-son's [decision to live with his natural father], the transfer to
Gillette, and his wife's severe depression . . . ." R. D. and O. at 17.
18 Typically an employer will
refer employees for an evaluation. Dr. Torres testified that he had evaluated pilots, air traffic
controllers, doctors, nurses, anesthesiologists, railroad employees and employees at nuclear
weapons facilities. Dr. Peoples testified that he had received referrals from the oil and gas
industry and the construction industry. He also had evaluated doctors and lawyers.
19 Exxon relied on the
testimony of Dr. James Hayden, a physician specializing in Addiction Medicine. Dr. Hayden
neither examined Strawser nor evaluated his fitness for duty. Rather, he reviewed Exxon's drug
and alcohol policy and testified that it was "reasonable." He also testified that no one "can
accurately predict if or when the alcoholic is going to relapse." T. 1184.
20 Alcohol may be used to allay
the manic aspect of the disorder. For Strawser, symptoms of the disorder included hyperactivity,
accelerated speech, racing thoughts and a reduced need to sleep.
21 Strawser stopped taking
lithium after consultation with and upon the advice of his psychiatrist and with the understanding
that his wife would monitor him for any returning symptoms. T. 89-93, 394-395.
22 The circumstances in
Hogarth v. Thornburgh, 833 F. Supp. 1077, 1087 (S.D.N.Y. 1993)(employee with
bipolar disorder), are distinguishable. There, the plaintiff suffered repeated episodes of acute
mental illness, including "substantial breaks from reality," while "under the care of a psychiatrist
and receiving medication," which raised the possibility of future recurrence.
23 See Altman v. New York
City Health and Hospitals Corporation, 903 F. Supp. 503, 510 n.8 (S.D.N.Y. 1995)(patient
underestimated his disease, minimized the extent of his powerlessness over alcohol and drugs,
did not recognize the consequences of a return to use; his understanding of the disease was
superficial).
24 A report issued in 1985 by
FAA's Civil Aeromedical Institute states that in 80% of the cases special issuances
(recertifications) were granted within a year of treatment. PX 95.
25 DX 48D is a publication of
the National Institute on Alcohol Abuse and Alcoholism, U.S. Department of Health and Human
Services, entitled Alcohol Alert. The statement is attributed to a 1981 publication by
John Wiley & Sons which does not appear in the record.
26 Strawser testified (T. 95):
28 When asked why he thought
Strawser had remained sober, Dr. Torres responded: "[H]is mental status, his relatedness to
others, his functioning on the job, his personal relationships." T. 742. Larry Kennedy, the
operations superintendent at LaBarge, testified that Strawser reportedly "spent a lot of his
personal time donating to help other people and in fact volunteered at the prison to help people
there [and] ultimately by providing counseling for others that helped him." T. 656.
29 Neither do we question
Exxon's prerogative to administer a policy providing for unannounced searches for drugs and
alcohol and requiring medical evaluations and alcohol and drug testing. We discuss this aspect
of Exxon's 1989 Drug and Alcohol Policy infra.
30 If transfer to Gillette truly
were an accommodation, Strawser legitimately could have refused it, at least under comparable
ADA regulations. 29 C.F.R. § 1630.9(d) ("A qualified individual with a disability is not
required to accept an accommodation . . . which such qualified individual chooses not to
accept.") Of course, if the individual cannot perform the essential functions of the job without
accommodation, he or she will not be considered "qualified."
31 See 29 C.F.R. Part
1630, App. (Section 1630.2(p) Undue Hardship) at 408 which states: "The fact that [a] particular
accommodation poses an undue hardship . . . only means that the employer is not required to
provide that accommodation. If there is another accommodation that will not create an undue
hardship, the employer would be required to provide the alternative accommodation."
32 Contrary to Exxon's position,
e.g., Exceptions 9, 27-32, 39, 47, the record does not dispute that a testing program, if
properly designed and implemented, would be effective.
33 See, e.g., T. 851, 982,
986, 1138. See also Part III, 49 C.F.R. Part 40, Department of Transportation
Procedures for Transportation Workplace Drug and Alcohol Testing Programs, 59 Fed. Reg.
7340, 7345, 7367 (1994) (Drug and alcohol testing is feasible, accurate and effective.).
34 OFCCP is authorized to take
action, e.g., contract cancellation or termination, in whole or in part, and debarment, in
the event that a contractor fails to comply with the affirmative action clause. 41 C.F.R.
§§ 60-741.27 and 60-741.28.
35 The loss on the sale of the
house was directly attributable to the unlawful decision to transfer Strawser to Gillette,
Wyoming, and thus is compensable in order to restore him to the position he would have
occupied had the discrimination not occurred. Compare Creekmore v. ABB Power Systems
Energy Services, Inc., Case No. 93-ERA-24, Deputy Sec. Rem. Ord., Feb. 14, 1996, slip op.
at 26 (loss not compensable where unlawfully discharged employee would not have been
reimbursed at time of employer's subsequent relocation and where amount was not adequately
documented).
36 Testimony of Dr. Michael
Gendel, PX 65, T. 394-397.
37 Complainant admitted to
mistakenly having a few sips of alcohol at social events between January 1983 and October 1991
when he concedes a more significant lapse. T. 252-253
38 While conceding that
monitoring and supervision is generally appropriate, Complainant's witnesses did not concede
that Complainant's medical history justified him being separated out for special attention.
39 A Primary Driver is an
employee who drives on public roads as an intrinsic part of his or her job duties.
40 The F.A.A. study relied upon
by Complainant is not a study of relapse rates but rather a study of the effectiveness of the
monitoring and testing program instituted to assist recovering alcoholic pilots. Notwithstanding
its methodological weaknesses, the study lends no support to the majority's contention that no
accommodation may be required.
41 The majority relies on
Mantolete v. Bolger, 767 F.2d 1416 (9th Cir. 1985) to suggest that no accommodating
condition could be imposed on Complainant absent a showing of "a reasonable probability of
substantial harm." This may be the standard, but in cases in which the public safety is
implicated, the standard is necessarily applied differently. As the court in Dipompo v. West
Point Military Academy, 770 F. Supp. 887, 893 (S.D. N.Y. 1991) found:
impairment
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impairment
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inquiry
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Id. at 38 (citation omitted). We agree with this assessment.
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action on it. It is encouraging." T. 405.
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Chair
Alternate
ember
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Member
27 DX 48J and PX 94
demonstrate that 77% of recovering alcoholics studied who were sober at two years also were
sober at 10 years and that of those sober five or more years, 91% were likely to stay sober and in
AA for another year. R. D. and O. at 19-21, 40. The FAA studies show success rates of 85.5%
in 1985 and 90-94% in 1992, with "success" being no relapses over a two-year period following
return of pilot medical certification.
