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GIACOBBI v. BIERMANN

January 7, 1992

FRANK GIACOBBI, Plaintiff,
v.
LEONARD J. BIERMANN, ACTING DIRECTOR, OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Defendant.



The opinion of the court was delivered by: THOMAS A. FLANNERY

 This case comes before the Court on Defendant's Motion to Dismiss, or in the alternative, for Summary Judgment. For the reasons set forth below, Defendant's motion is granted.

 Background

 On October 13, 1987, Plaintiff filed a complaint with the Department of Labor ("DOL") alleging a violation of the Rehabilitation Act of 1973 by his employer, Vinnell Corporation ("Vinnell"). As a government contractor, Vinnell is governed by Section 503 of the Rehabilitation Act of 1973, 29 U.S.C. § 793, which prohibits government contractors from discriminating against individuals with handicaps. Section 503 does not provide a private cause of action against the government contractor who discriminates, but rather, states that a person who believes that a government contractor has violated the Act may file a complaint with the DOL. Section 503 directs that the DOL "shall promptly investigate such complaint and shall take such action thereon as the facts and circumstances warrant."

 In his complaint to the DOL, Plaintiff stated that he had worked for Vinnell in Riyadh, Saudi Arabia as an English teacher. Plaintiff claimed that he had been repeatedly subjected to homosexual harassment, i.e., unwelcome homosexual advances, by his male supervisor at the jobsite. This repeated harassment, Plaintiff alleged, led Plaintiff to suffer from tremendous stress and eventually stress-related physical ailments. Specifically, Plaintiff suffered neck pain and reduced mobility of the neck.

 Plaintiff further submits that his work suffered as a result of the stress-related physical problems that he was experiencing. In response to inquiries regarding his reduced job performance, Plaintiff indicated what he believed to be the source of his physical disabilities. Plaintiff claims that his supervisor threatened him upon learning that Plaintiff had spoken of being the victim of homosexual harassment and that Vinnell took no action to alleviate the harassment or to protect him from his supervisor.

 The company physician examined Plaintiff after he became ill and, Plaintiff alleges, verified that Plaintiff's illness was stress-related. Further, the doctor determined that it would not be medically advisable for Plaintiff to continue in the job position that Plaintiff held at that time. He recommended that Plaintiff be given "light duty, i.e., float," a reference to a position as a float instructor. Vinnell did subsequently reassign Plaintiff, but not to a float position. Plaintiff asserts that rather than assign him to a less physically demanding position as the doctor had ordered, Vinnell assigned him to a more demanding position. The new more difficult assignment was allegedly made to retaliate against Plaintiff for having voiced displeasure at the company's unwillingness to accommodate his physical handicap.

 Eventually, Plaintiff was "medically terminated" from his job. Vinnell had a company policy of terminating employees who for medical reasons are no longer capable of performing their job. Plaintiff asserts that prior to medically terminating an employee, however, Vinnell would typically return an employee to the United States for 90 days for medical treatment. In Plaintiff's case, this was not done. Instead, Plaintiff was informed that he was terminated effective May 22, 1987. It was this termination that prompted Plaintiff's October 13, 1987 complaint to the DOL.

 On March 22, 1988, the DOL, through the Office of Federal Contract Compliance Programs (OFCCP), which investigates Section 503 claims, informed Plaintiff that his complaint could not be acted upon unless he could show good cause why it was not filed within 180 days of the alleged violation as required by 41 C.F.R. § 60-741.26(a). On June 28, 1988, OFCCP informed Plaintiff that, in fact, good cause did exist and that OFCCP would investigate his claim.

 The findings of OFCCP's investigations were reported to Plaintiff on December 23, 1988 in a document entitled "Notification of Results of Investigation" (NORI). DOL concluded that Vinnell was indeed covered by Section 503, that Plaintiff was an "individual with a handicap" as defined by DOL regulations, and that the complaint was filed in a timely manner.

 The DOL concluded, however, that there had been no Section 503 violation. The DOL found that Plaintiff was given the option of going back to the United States at Vinnell's expense and had declined, instead choosing to spend his 90-day sick leave period receiving medical treatment in Japan. There was insufficient evidence, according to the DOL, to conclude that Vinnell failed to meet its Section 503 obligations.

 Plaintiff, again in a timely manner, requested a review of the DOL's initial determination as provided for in 41 C.F.R. § 60-741.26(g). Specifically, Plaintiff complained that: there had been a lack of reasonable accommodation of Plaintiff's handicap by Vinnell; that there had been a pattern of harassment at Vinnell; that Vinnell had offered to return Plaintiff to the United States upon termination, but at no time offered to return him there for sick leave and medical treatment; and that the NORI did not reflect that there had been any investigation by the DOL of the complaint of retaliation by Vinnell against Plaintiff.

 Over two years later, on April 26, 1991, the DOL affirmed its original decision that no enforcement action was warranted in this case. This time, the DOL relayed the following findings to Plaintiff: that there was no indication that medical treatment in the United States would have improved Plaintiff's ability to perform his job; that Vinnell made a good faith effort to accommodate Plaintiff's handicap by assigning him to a less physically demanding position; that the company doctor's recommendation of a "floater" position was a "mere suggestion, not an absolute requirement"; that neither the Plaintiff nor the doctor contemporaneously suggested that any further accommodation was necessary or would even be beneficial; and that Plaintiff's termination was in accordance with company policy. In summary, the DOL again concluded that there was insufficient evidence that there had been a violation of Section 503 of the Rehabilitation Act of 1973.

 Plaintiff brings this suit seeking a review of the DOL's actions under the Administrative Procedures Act, 5 U.S.C. § 701 et seq. ("APA"). Plaintiff claims that the DOL acted in an arbitrary and capricious manner in handling his complaint. Plaintiff also argues that the DOL failed to follow the statutory language of § 503 of the Rehabilitation Act of 1973 by failing to investigate his complaint promptly. Plaintiff further alleges that the DOL follows what amounts to a de facto policy of not thoroughly investigating and following through on complaints filed pursuant to § 503. Finally, Giacobbi argues that the DOL's delay in the investigation of his complaint and its failure to take any enforcement action rises to the level of a violation of due process under the Fifth Amendment.

 Heckler v. Chaney

 In order to prevail on a claim under the APA, Plaintiff must get past the hurdle of Heckler v. Chaney, 470 U.S. 821, 84 L. Ed. 2d 714, 105 S. Ct. 1649 (1985). There is an exception to the general presumption under the APA that agency action is subject to judicial review. The exception is when the action at issue is one "committed to agency discretion by law." 5 U.S.C. § 701(a)(2). Where the issue is committed to the agency's discretion by law, there is no law for a reviewing court to apply. Chaney holds that an agency decision not to take ...


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