Bento v. ITO Corp. of Rhode Island, Civ. A. No. 83-0100 S.

• Decision Date: 12 December 1984
• Docket Number: Civ. A. No. 83-0100 S.
• Parties: Matthew S. BENTO v. I.T.O. CORPORATION OF RHODE ISLAND.
• Court: U.S. District Court — District of Rhode Island

599 F. Supp. 731

Matthew S. BENTO v. I.T.O. CORPORATION OF RHODE ISLAND.

Civ. A. No. 83-0100 S.

United States District Court, D. Rhode Island.

December 12, 1984.

COPYRIGHT MATERIAL OMITTED

Cooper Associates, David A. Cooper, Providence, R.I., for plaintiff.

Gaston Snow & Ely Bartlett, Douglas F. Seaver, Glynn & Dempsey, Thomas J. Muzyka, Boston, Mass., Charleson & Brill, Marvin A. Brill, Providence, R.I., for defendant.

MEMORANDUM AND ORDER

SELYA, District Judge.

Matthew Bento, a sixty-three year old longshoreman with over thirty-six years of experience on the docks, has brought this action alleging, inter alia, handicapped discrimination under the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-796i, (more specifically, for purposes of this case, § 793 and § 794). The defendant, I.T.O. Corporation of Rhode Island (ITO), is one of the five cargo-handling companies which collectively comprise the Rhode Island Shipping Association (Association). The Association, which also includes Goff and Page, Inc., John J. Orr & Son, J.F. Moran, and Tidewater Terminals (previously Patriot Metal), is the united front by which these firms manage their relations with the International Longshoremen's Association, Local No. 1329 (Union) and with the Union members who perform needed longshoring functions.

The instant action combined claims triable by jury with claims triable to the court. The nature of these contentions is more fully delineated post. The court, with the concurrence of the parties, tried the jury and non-jury claims ensemble (October 23, 24, 25, 26, 1984), permitting supplementation of the record after conclusion of the jury portion of the trial. Post-trial briefs were submitted as to the claims tried to the court. And, this rescript constitutes the court's findings of fact and conclusions of law thereon, in pursuance of Fed.R.Civ.P. 52(a).

I. Facts.

In 1977, while working in a drive-on/drive-off job on a ship, Bento suffered a back injury. Unable to work, he received workers' compensation until the Fall of 1978; in October of that year, he applied for disability benefits and was granted an award of such benefits to start in June, 1979.

On January 7, 1979, however, Bento was admitted to Miriam Hospital complaining of chest pains. He remained in the hospital for six days and was released. This medical reprieve was short-lived, however, as he was subsequently readmitted with the same symptomatology on January 29, 1979. On February 13, Bento underwent coronary cineangiography and cardiac catheterization, which demonstrated that he had only two major arteries instead of the normal three. He was discharged shortly thereafter on a regime of medical therapy. On August 4, 1979, he was again hospitalized because of unstable symptoms of angina. Several days later, doctors performed urgent open-heart single bypass surgery.

Despite the severe setback, Bento—an earnest, plain-spoken individual who impressed the court with his grit, determination, and unwillingness to surrender to the onslaught of physical infirmity—made it plain from the beginning that he regarded his condition as temporary and intended to return to work as a longshoreman when possible. On September 10, 1979, he wrote to the Board of Trustees of the pension fund, which is jointly maintained by the Association and by the Union, concerning a disability pension. On October 4, he was informed that a pension of $425 per month, effective retroactive to May of 1978, had been granted. The trustees also arranged for life insurance coverage to be extended to the plaintiff. Evidently concerned about the strings attached to his pension, Bento sent a registered letter, dated October 15, 1979, to the chairman of the Union's seniority board. In pertinent part, the letter read, "My notice of my involuntary retirement received today so I am making a formal request to the Seniority Board...— for a leave of absence of at least one year and at most, two years." Copies of the letter were also sent to the Association's president and to Leonard J. Stanton. While the plaintiff acknowledged that he had sent Stanton the letter because of Stanton's role as secretary of the Association, it is well to note that Stanton's primary employment was as ITO's general manager in Providence. Stanton was also a trustee of the jointly-run ILA/Association pension trust.

By mid-1981, Bento had begun unilateral preparations to return to work. On May 29, 1981, the U.S. Social Security Administration answered his request for clarification of his standing by informing him that he was entitled to a trial work period during which his disability benefits would still be paid. Bento attended a Union meeting on July 14 and announced that he would be returning to work in the Fall. As there seems to have been some confusion about his Union membership status, he memorialized his intentions in a letter dated July 22 addressed to the Union's president (Gomes). The plaintiff also requested that Gomes tell him whether he needed to take any other action to clear the decks for his anticipated return to work. On August 7, 1981, Bento wrote to inquire what disposition would be made of his life insurance when he returned to work in the Fall. On August 12, Philip Campana, the Association's executive director, answered this letter and explained that the plaintiff's question would be presented to the trustees at their next meeting. Despite all this evidence of Bento's intentions, however, neither the Union, nor the Association, nor the companies individually, responded to the specific issue of his returning to work.

Nothing daunted, Bento steamed ahead. On October 5, 1981, he appeared at a "shape-up," clamoring for work. Because the question of who actually does the hiring has become an issue in this litigation, a brief explanation as to how work is distributed on the docks is in order. There are five permanent gangs which share all the general cargo work in the port of Providence. The gangs are not identified with any particular employer; each employer's work is parceled out among all the crews, with the gang having the lowest number of hours worked being given priority, and so on, up the ladder. Within each gang, positions are assigned by seniority. If less than the full gang complement is needed, drop-outs are determined on a reverse seniority basis. If a permanent gang member is absent on a particular day, his replacement is selected—again, by seniority —from the pool at that day's shape-up. On a daily basis, the size of the pool depends on how many longshoremen choose to turn out. The quantity of available work relates to the number of ships in port on that day, and the complement needed to load and/or unload those ships. Basically, then, the companies indicate their manpower needs, while the Union assigns the work.

When Bento appeared at the October 5 shape-up after a four-year absence from the docks, he was picked as a fill-in member of a permanent gang that had been designated to work on the Kanuka Forest, a lumber ship being unloaded by ITO. Shortly after the plaintiff had reported to the vessel, Stanton approached him on deck. ITO's general manager was well aware that the plaintiff had been receiving a disability pension, and promptly inquired whether he had medical clearance to work. When Bento's response proved unsatisfactory, Stanton ordered him off the ship.

The evidence was sharply conflicting concerning the phraseology which Stanton employed on this occasion. The plaintiff, and several other longshoremen, claimed that Stanton "fired" Bento, without mincing words. Stanton, on the other hand, said that he merely refused to ratify plaintiff's engagement by the Union. While the parties apparently view choice of language anent this point as being of consequence in terms of the Rehabilitation Act, the court declines the invitation to become mired in such a philological bog.

Whatever the mechanics of the hiring scheme, ITO plainly had—and exercised— plenary authority to prevent Bento from working its ships. ITO's argument that it was technically uninvolved in the hiring process is a lame attempt to elevate the form of the shape-up over the substance of the dock-side workplace. The Act itself advocates that federal contractors "shall take affirmative action to employ and advance in employment qualified handicapped individuals," 29 U.S.C. § 793, and focuses in pertinent part on the exclusion of individuals from employment "solely by reason of ... handicap." Id. at § 794. The relevant policy underlying the Rehabilitation Act is clear: "to promote and expand employment opportunities in the public and private sectors for handicapped individuals." 29 U.S.C. § 701(8). And, the very essence of an employment relationship—the exchange of services rendered under the control of another for recompense by such other—is starkly present in terms of the juxtaposition of cargo-handling firms vis-a-vis wharf hands. The Act and the economic realities of the situation coalesce to undermine the wordmongery of the defendant. To the extent (if at all) that the reach of the Act extends to Bento's plight, the question of whether he was discharged or simply excluded from the chance of employment is immaterial. ITO's exercise in semantics is, at bottom, a distinction which wanders fruitlessly in search of a difference.

Following the announcement of Stanton's embargo, Bento left the vessel. He returned with a physician's slip which he presented, in the first instance, to Gomes. The note, dated September 14, 1981 and signed by Dr. Abraham Saltzman, read in its entirety as follows:

Permission given to return to light work involving no more than 2 flight sic climbing at time.

Gomes delivered the note to Stanton, who did not find it to be an adequate medical clearance. He persisted in his refusal to allow Bento to work as a longshoreman for ITO. Accordingly, Gomes told Bento that same day that he would have to submit better...