Bentivegna v. U.S. Dept. of Labor, 81-7651

• Decision Date: 13 December 1982
• Docket Number: No. 81-7651,81-7651
• Citation: 694 F.2d 619
• Parties: 30 Fair Empl.Prac.Cas. 875, 30 Empl. Prac. Dec. P 33,211, 1 A.D. Cases 403 Philip BENTIVEGNA, Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, Respondent, and City of Los Angeles, Real Party in Interest.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 619

694 F.2d 619

30 Fair Empl.Prac.Cas. 875,

30 Empl. Prac. Dec. P 33,211, 1 A.D. Cases 403

Philip BENTIVEGNA, Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, Respondent, and City of Los Angeles, Real Party in Interest.

No. 81-7651.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 6, 1982.

Decided Dec. 13, 1982.

David Pettit, Venice, Cal., for petitioner.

James A. Henry, Dept. of Labor, Washington, D.C., argued, for respondent; Joanne Tierstein, U.S. Dept. of Labor, Washington, D.C., on brief.

Petition for Review of Final Determination of United States Secretary of Labor.

Before ANDERSON, FERGUSON, and NELSON, Circuit Judges.

NELSON, Circuit Judge:

We review the decision of the Secretary of the Department of Labor for the United States declining to award back pay to petitioner, Philip Bentivegna. For the reasons set forth below, we reverse.

I. FACTS AND PROCEDURAL CONTEXT

The City of Los Angeles (City) hired Bentivegna as a "building repairer" in late August, 1977, through the Comprehensive Employment and Training Act (CETA) program. 29 U.S.C. Secs. 801-999 (1976 & Supp. IV 1980). Bentivegna had indicated on an application form that he had diabetes mellitus. As a condition of employment, applicants were required to pass a physical examination. Applicants with diabetes were required to demonstrate "control," meaning blood sugar test results consistently below a certain level. At Bentivegna's physical examination, one test yielded a urine glucose reading of "4 +," which the City's physicians believed demonstrated, or at least raised a significant possibility of, lack of control. Consequently, Bentivegna was terminated from his position in early September.

Bentivegna petitioned the City Medical Review Board for review of his termination. After this petition was denied, Bentivegna took his case to the Los Angeles Civil Service Commission. At its first hearing on the case, held December 2, 1977, Bentivegna introduced two letters from his treating physicians. One reported a "6 hour blood sugar" of 190, and concluded, "He is now able to work." The other letter stated in its entirety: "Phillip [sic] Bentivegna is a Diabetic, well controlled, and entirely capable of working." Bentivegna also submitted a September 10 laboratory report showing a fasting blood sugar of 226. The City's doctor testified at that hearing that "All evidence that's been submitted up to now shows [Bentivegna]'s not in control." That doctor later defined proof of control as a "series of blood sugars over the course of ... three or four months close to the recommended 150 ...." The Commission deferred review to allow Bentivegna's doctors to clarify the basis for their conclusions.

Despite Bentivegna's efforts, the only further information forthcoming from his doctors was a note stating that "Mr. Philip Bentivegna had a blood sugar of 122 on 11/22/77." At the second hearing, held February 10, 1978, Bentivegna presented this note and a medical opinion letter from an expert stating that: (1) sugar levels less than 120, as control is sometimes defined, may not be the most desirable levels for diabetics; (2) most diabetics have levels between 120 and 175, and are considered "reasonably well controlled;" and (3) "[b]lood sugars less than 250-300 usually cause no detectable disability or symptoms." (Emphasis in original.) After reviewing the test results mentioned above, the letter concluded: "The long-term dangers to Mr. Bentivegna with sugars at that level, as with all diabetics, are unclear, the short-term dangers at those levels are minimal."

The Commission denied Bentivegna's appeal without prejudice, one of the Commissioners saying that Bentivegna "can come back within three months to show a controlled situation." ¹ The City rehired Bentivegna After pursuing various courses of relief, Bentivegna filed a complaint with the Department of Labor. He claims that his termination violated section 504 of the Rehabilitation Act of 1973, which prohibits discrimination against an "otherwise qualified handicapped individual." 29 U.S.C. Sec. 794 (Supp. IV 1980). In April, 1980, the Department of Labor Grant Officer concluded that Bentivegna's termination violated CETA regulations and the Rehabilitation Act, ordering the City to pay petitioner lost wages plus interest for the preceding 15 months. A hearing was conducted before the Administrative Law Judge (ALJ) at the City's request.

January 2, 1979, for another construction job, "Maintenance Construction Helper," apparently without requiring proof of control.

The ALJ issued a decision reversing the Grant Officer which became the final decision of the Secretary of Labor. See 20 C.F.R. Sec. 676.91(f) (1982). Bentivegna brings this appeal.

II. DISCUSSION

Section 504 of the Rehabilitation Act of 1973 (the Act) provides:

No otherwise qualified handicapped individual ... shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance ....

29 U.S.C. Sec. 794 (Supp. IV 1980).

It is not disputed that: (1) Bentivegna is a "handicapped person" under the Act, see 29 U.S.C. Sec. 706(7) (Supp. IV 1980); (2) he is "otherwise qualified" for the job in question; (3) the job is part of a federally funded program. See Doe v. New York University, 666 F.2d 761, 774 (2d Cir.1981). This case turns on whether the Secretary of Labor properly found that the City's diabetes standard was nondiscriminatory and that the standard was properly applied in the decision to terminate Bentivegna. The standard of review on this appeal is that "the findings of fact by the Secretary, if supported by substantial evidence, shall be conclusive ...." 29 U.S.C. Sec. 817(b) (Supp. IV 1980).

A. Legal Standards for Job Qualifications

The Supreme Court has held that "[a]n otherwise qualified handicapped 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, 99 S.Ct. 2361, 2367, 60 L.Ed.2d 980, 988 (1979); see id. at 407 n.7, 99 S.Ct. at 2367 n.7, 16 L.Ed.2d at 989, n.7. This cannot mean that the City can discriminate by establishing restrictive "program requirements" where it could not so discriminate in making individual employment decisions. The Rehabilitation Act, taken as a whole, mandates significant accommodation for the capabilities and conditions of the handicapped. Blanket requirements must therefore be subject to the same rigorous scrutiny as any individual decision denying employment to a handicapped person.

The proper standard for this inquiry is set forth in the Secretary's regulation on "Job Qualifications" interpreting section 504. 29 C.F.R. Sec. 32.14 (1982). It provides that job qualifications "which would tend to exclude handicapped individuals because of their handicap ... shall be related to the specific job or jobs for which the individual is being considered and shall be consistent with business necessity and safe performance." Id. Sec. 32.14(b). The importance of preserving job opportunities for the handicapped sets a high standard for the effectiveness of job qualifications that adversely affect the handicapped. The regulation makes consistency with business necessity an independent requirement, and the courts must be

                wary that business necessity is not confused with mere expediency.  If a job qualification is to be permitted to exclude handicapped individuals, it must be directly connected with, and must substantially promote, "business necessity and safe performance."    The City had the burden of demonstrating that its job qualifications met this standard.  Id.;  see E. E. Black, Ltd. v. Marshall, 497 F.Supp. 1088, 1103 (D.Haw.1980).  The question for this court, then, is whether there is sufficient evidence in the record to support the Secretary's finding that the City's control requirement as applied to Bentivegna satisfied the standard of 29 C.F.R. Sec. 32.14, as interpreted here
                

B. The City's Requirement of Controlled Blood Sugar Levels for Diabetics

The City terminated Bentivegna because his blood sugar levels were not proven to be controlled below certain levels. The Department of Labor justifies the City's requirements with the proposition that "diabetics who are not under good control, i.e., those with high blood sugar levels, are more prone to get serious infections from relatively minor injuries, that they heal less rapidly than others, and they are more likely to have long term health problems causing absenteeism and shorter careers." In applying the substantial evidence test to these contentions, we will first consider the argument relating to possibly increased risks from injury.

1. The City's first justification--risk of future injury

The City's doctor, Dr. Hanks, testified before the ALJ that the termination was motivated by "concern for Mr. Bentivegna's personal health and safety as a result of potential injury." Any qualification based on the risk of future injury must be examined with special care if the Rehabilitation Act is not to be circumvented easily, since almost all handicapped persons are at greater risk from work-related injuries.

Dr. Hanks provided the strongest support for the City's position, stating that all diabetics are subject to progressive vascular and neurological problems that can elevate the risks associated with injury. The doctor who testified for Bentivegna agreed that diabetics often do not handle infections as well as nondiabetics. But the City bore the burden of proving that controlling blood sugar levels to the required level contributes cognizably to personal health and safety. ² Dr. Hanks' testimony is inadequate for this purpose in three ways. First, it makes no comment on whether these problems are more serious in diabetics with higher sugar levels. The two City doctors...