Cissell Mfg. Co. v. U.S. Dept. of Labor, 95-5619

• Citation: 101 F.3d 1132
• Decision Date: 07 March 1997
• Docket Number: No. 95-5619,95-5619
• Parties: CISSELL MANUFACTURING COMPANY, Plaintiff-Appellee, v. UNITED STATES DEPARTMENT OF LABOR, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 1132

101 F.3d 1132

CISSELL MANUFACTURING COMPANY, Plaintiff-Appellee, v. UNITED STATES DEPARTMENT OF LABOR, Defendant-Appellant.

No. 95-5619.

United States Court of Appeals, Sixth Circuit.

Argued June 6, 1996.

Decided Dec. 4, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied March

7, 1997. ^*

Jon L. Fleischaker, Stephen R. Price (argued and briefed), Michelle D. Wyrick, Wyatt, Tarrant & Combs, Louisville, KY, for Plaintiff-Appellee.

James H. Barr, Asst. U.S. Attorney, Louisville, KY, Samuel Bagenstos (argued and briefed), Mark L. Gross, U.S. Department of Justice, Civil Rights Division, Appellate Section, Washington, DC, Richard S. Ugelow, U.S. Department of Justice, Civil Rights Division, Washington, DC, for Defendant-Appellant.

Before: MILBURN and SUHRHEINRICH, Circuit Judges; ROSEN, ^* District Judge.

MILBURN, J., delivered the opinion of the court, in which SUHRHEINRICH, J., joined. ROSEN, J. (pp. 1138-45), delivered a separate dissenting opinion.

MILBURN, Circuit Judge.

In this action seeking review of a final administrative determination that an employer engaged in discrimination in violation of a federal contract, brought under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., the Department of Labor appeals the district court's denial of its motion to remand and the district court's grant of plaintiff Cissell Manufacturing Company's motion for summary judgment. On appeal, the issue is whether the district court erred in granting Cissell Manufacturing Company's ("Cissell") motion for summary judgment and denying the Department of Labor's ("the Department") motion to remand upon determining that the Department had failed to present evidence that established its jurisdiction over the case. For the reasons that follow, we reverse and remand.

I.

A.

In September 1978, Larry Brown began working for plaintiff Cissell, which manufactures commercial laundry and dry cleaning equipment at its facilities in Louisville, Kentucky. Brown worked as a welder on the "dryer line," where he welded together the bottom of dryers as the dryers were pulled along a conveyor belt. Approximately three months later, Brown was transferred to another position within the same job classification. At that position, Brown worked as a welder at the "spider table," where he welded four-pronged metal components together. On April 26, 1983, Brown was involved in an accident at work that caused injuries to his knees. In response, Cissell prepared an accident report and recommended that Brown see a doctor. Brown, however, chose not to see a doctor at that time and continued to work without complaint or loss of time from work.

In August 1983, Cissell transferred Brown to another position on the dryer line. Shortly after being reassigned to the dryer line, Brown complained of having pain in his knees and asked to return to the spider table position. Cissell arranged for Brown to see an orthopedic surgeon, Dr. Raymond Shea, on August 11, 1983. Dr. Shea concluded that Brown had chondromalacia patellae, a form of arthritis that involves degeneration of the cartilage in the knee, and advised Brown to avoid jobs with excessive bending and lifting at the knees. Dr. Shea also concluded that Brown could safely perform his job on the dryer line. When Brown returned to work on August 15, 1983, he asked to return to the doctor immediately. Cissell's personnel manager, Anna Mae Royalty, advised Brown to continue working and to keep his scheduled appointment with Dr. Shea on August 18, 1993. Brown did not report to work on August 16, 1993, however, and instead scheduled an appointment with Dr. Shea for that day. Dr. Shea determined that Brown could return to work without restrictions. Brown returned to work on August 17, 1983, and went to Dr. Shea's office for a checkup on August 23, 1983. Dr. Shea noted that Brown had much less pain in his knees and sent Brown back to work with no restrictions. Dr. Shea also gave Brown knee sleeves to wear while at work.

In September 1983, Brown placed a bid to request to transfer from his welder classification to a spot welder classification, a lower paying classification. Brown was transferred to the spot welder classification on September 6, 1983. As a spot welder, Brown was initially put on the production line welding dryer cabinets, and he worked in that position for approximately three weeks. Brown was next assigned to a handyman position and eventually was assigned to the basket department. In the basket department, Brown and two other men assembled and spot welded dryer baskets. Brown remained in this position for approximately one year without any complaint concerning his knees.

On August 31, 1984, Brown visited his own physician, Dr. Jerold E. Tomlin, without advising anyone at Cissell. Dr. Tomlin found that Brown had full painless range of motion of both knees and advised Brown to perform exercises and to avoid kneeling, deep knee bending, and stairs as much as possible. Because Cissell had not received any reports of new injury or any complaints regarding Brown's knees, Cissell refused to authorize payment for Dr. Tomlin's services.

Brown continued working as a spot welder and did not complain that he was having pain in his knees. However, on October 9, 1984, Brown returned to Dr. Tomlin and obtained a note that contained medical restrictions. The note, labeled a "Disability Certificate," stated that Brown should not be placed in a job that required stooping or deep knee bends and that Brown should preferably be given a sit-down position. On October 10, 1984, Brown gave the note to the union steward, Lee Warfield, and Warfield delivered the note to Cissell's personnel department. Brown's foreman, Junior Winn, who had not seen the note, received instructions to send Brown home. Accordingly, Winn told Brown to "hit the clock," and Brown did so. The union steward then informed Brown that he could not return to work until all medical restrictions were lifted. Cissell presented evidence that it had no permanent sit-down positions in the spot welding classification and that all of the jobs in the welding department required some bending or stooping.

Brown then filed a worker's compensation claim. While the claim was pending, Brown received twenty-six weeks of sick leave under the collective bargaining agreement. When the twenty-six weeks of sick leave were near expiration, Brown obtained another note from Dr. Tomlin that stated that Brown could not return to work involving squatting or carrying heavy loads for the next ninety days. Brown subsequently was placed on two consecutive ninety-day unpaid leaves of absence. When Brown's second leave of absence expired, Cissell notified him in a letter dated July 11, 1985, that, pursuant to the collective bargaining agreement, Brown's employment would be terminated unless he returned to work. Brown did not return to work, and his employment was terminated on October 10, 1985. ¹

B.

On October 25, 1985, Brown filed a complaint with the Department of Labor's Office of Federal Contract Compliance Programs ("OFCCP") alleging that Cissell had discriminated against him on the basis of his handicap. ² After investigating the charge, the OFCCP filed an administrative complaint against Cissell on August 28, 1987. The complaint alleged that Cissell had violated § 503 of the Rehabilitation Act, as amended, 29 U.S.C. § 793, by failing to reasonably accommodate Brown's disability. On December 21, 1988, an administrative law judge ("ALJ") initially concluded that Brown was not handicapped under Section 503 and recommended granting summary judgment in favor of Cissell. However, on December 5, 1989, the Assistant Secretary for Employment Standards ("the Assistant Secretary") rejected the ALJ's recommendation and remanded the case to the ALJ. The ALJ held an administrative hearing on April 25 and 26, 1990, and, in May 1992, the ALJ issued a ruling in which he concluded that Brown was handicapped under Section 503 and that Cissell had failed to reasonably accommodate Brown's impairment. The ALJ recommended that Brown be reinstated with full seniority and benefits, that Cissell pay Brown back pay with interest, and that Cissell cease its "no light duty" policy.

On February 14, 1994, the Acting Assistant Secretary issued a final decision and order upholding the ALJ's recommendation. The order further provided that the failure to comply within sixty days would result in debarment, pursuant to which all of Cissell's federal contracts would be cancelled and Cissell would become ineligible for the award of any other government contracts. Cissell filed a motion to stay the debarment proceedings with the Assistant Secretary, and the motion was denied.

C.

On March 15, 1994, Cissell initiated this action, seeking judicial review of the Assistant Secretary's final administrative decision. In its complaint, Cissell alleged that the Assistant Secretary's decision should be reversed, among other reasons, because the Department had not proved that it had jurisdiction over Brown's case. Cissell also sought an injunction against the Department's debarment proceedings. On April 20, 1994, after holding a hearing, the magistrate judge recommended that a temporary restraining order be issued pending disposition of the preliminary injunction issue or adjudication of the underlying claims. The district court issued a temporary restraining order on April 29, 1994, and then a preliminary injunction on May 28, 1994, staying the debarment proceedings pending the court's disposition of the case.

On July 25, 1994, Cissell filed a motion for summary judgment arguing that the Department lacked jurisdiction over Brown's complaint under § 503 of the Rehabilitation Act. At the time that the OFCCP initiated administrative proceedings against Cissell, § 503 of the Rehabilitation Act required that a contractor who entered into a contract in excess of $2500 with a Federal...