Quinn v. Southern Pacific Transp. Co.

• Jurisdiction: Oregon
• Parties: , 39 Empl. Prac. Dec. P 36,080, 2 A.D. Cases 1310 R. Brian QUINN, Respondent, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, a Delaware corporation, Appellant. 16-80-10533; CA A28468.
• Citation: Quinn v. Southern Pacific Transp. Co., 76 Or.App. 617, 711 P.2d 139 (Or. App. 1986)
• Court: Oregon Court of Appeals
• Decision Date: 19 February 1986

Page 139

711 P.2d 139

76 Or.App. 617, 39 Empl. Prac. Dec. P

36,080, 2 A.D. Cases 1310

R. Brian QUINN, Respondent, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, a Delaware corporation, Appellant.

16-80-10533; CA A28468.

Court of Appeals of Oregon.

Argued and Submitted July 13, 1984.

Decided Dec. 4, 1985.

Reconsideration Denied Jan. 17, 1986.

Review Denied Feb. 19, 1986.

Jeffrey M. Batchelor, Portland, argued the cause for appellant. With him on briefs were Spears, Lubersky, Campbell, Bledsoe, Anderson & Young, Portland.

Paul B. Gamson, Portland, argued the cause for respondent. With him on brief were Kulongoski, Heid, Durham & Drummonds, Portland.

Before RICHARDSON, P.J., and WARDEN and NEWMAN, JJ.

WARDEN, Judge.

In this unlawful employment practice case, Southern Pacific Transportation Company appeals from a judgment awarding plaintiff a money judgment for back pay and requiring it to enroll plaintiff in the next training class for locomotive firemen. We review de novo, Wincer v. Ind. Paper Stock Co., 48 Or.App. 859, 618 P.2d 15 (1980), and affirm.

The background facts are largely undisputed. Plaintiff applied for a position with Southern Pacific as a railroad hostler in October, 1977. Southern Pacific sent him to Dr. Redfield for a pre-employment physical examination. As a part of that examination, plaintiff was given the Ishihara color vision test, which is designed to identify persons with red-green color deficiency. The test requires the examinee to view a number of colored plates, each of which is a configuration of colored dots on a background of other colors. A person with normal red-green vision can discern the image of a number on each of the plates, but a person with a red-green color deficiency cannot. Plaintiff was unable to identify correctly the Ishihara plates, but was able to identify colors on a bright color chart. In his report to Southern Pacific, Redfield remarked that plaintiff was "Ishihara--Color Blind" but indicated that he could see red, green and amber and that the deficiency was not disqualifying. Plaintiff began working as a hostler in November, 1977.

In November, 1978, plaintiff applied for a training class for fireman to become qualified for engine service, a craft that includes firemen and engineers. Employment as a fireman is a prerequisite to employment as an engineer, and transfer to engine service constitutes a change of craft from hostler. Plaintiff was accepted, subject to passing a physical examination. He was re-examined by Redfield in December. Plaintiff again failed the Ishihara test but passed the color chart test. Redfield noted the deficiency, but nonetheless recommended that plaintiff be accepted into the class. However, Dr. Meyers, Southern Pacific's chief medical officer, disqualified plaintiff from engine service. Bonacina, a train master and road foreman of engines, testified that he advised plaintiff of the disqualification. At Bonacina's suggestion, plaintiff then consulted Dr. Cox, an opthamologist. Plaintiff again failed the Ishihara test, although he successfully completed two other color vision tests.

Southern Pacific cancelled the January, 1979, training class and rescheduled it for January, 1980. In October, 1979, plaintiff reapplied for a transfer to engine service and enrollment in the scheduled class. On November 21, 1979, Bonacina contacted plaintiff to advise him that he had arranged the necessary physical examination; later that same day, Bonacina told plaintiff that there had been a mix-up and that plaintiff was not being considered for the class because of his color vision deficiency.

Plaintiff continued working as a hostler, and in November, 1980, he commenced this action under ORS 659.121, ¹ alleging that Southern Pacific's refusal to accept him for firemen's training because of his visual deficiency constituted an unlawful employment practice prohibited by Oregon's Handicapped Persons' Civil Rights Act. ORS 659.400 et seq. The court entered, inter alia, the following findings of fact and conclusions of law:

"10. Defendant requires a color vision test of all applicants for the fireman position. Some applicants are given a wool skein test and some are given the Ishihara test. Not all physicians used by Southern Pacific to conduct medical examinations use the Ishihara test.

"11. Some individuals, including Robert Park and James Page, who have similar color vision to Mr. Quinn, are employed as firemen and engineers for defendant in the Oregon Division.

"12. Defendant's Chief Medical Officer, Dr. John Meyers, disqualified plaintiff for firemen training on December 18, 1979, because of Mr. Quinn's color perception.

"13. In December, 1979, defendant's General Solicitor Oglesby H. Young stated that Mr. Quinn was not accepted for engine service because of his color vision.

"14. Defendant did not enroll plaintiff in the firemen's class because of his vision deficiency.

"15. The job of fireman requires the ability to distinguish red, green, amber, blue and white traffic signals. That plaintiff is able to distinguish between red, green, amber, blue and white. Mr. Quinn's color vision is not perfect. His color vision may not prevent the performance of the work involved.

"16. That the use of an Ishihara test for color vision or any other test was in a state of transition from the period when Mr. Quinn was considering moving from hostler to fireman. That the company was attempting to find some uniformity in its testing for color vision, but had not achieved uniformity. That there was a lack of uniformity in the testing for color vision.

"17. That the use of the Ishihara color vision test to bar Mr. Quinn from his employment would be arbitrary and would show a discriminatory intent on the part of the defendant.

"18. That there is no rational relationship between the safety performance of employees and the results of the Ishihara test.

"19. Defendant did not present any evidence, medical or historical or clinical that the Ishihara test is a good determiner of the performance of a person in the operation of engines on the railroad, either as a fireman or as an engineer. That Dr. Meyers has an extreme bias in favor of defendant.

"CONCLUSIONS OF LAW

" * * *

"2. That plaintiff is physically impaired within the meaning of ORS 659.400-659.425. That plaintiff's color vision is a physical impairment which, with reasonable accommodation by the employer, does not prevent the performance of the work involved.

" * * * "7. That defendant committed an unlawful employment practice by refusing to employ Mr. Quinn as fireman because of color vision in violation of ORS 659.425(1).

" * * *

"10. That under the circumstances that the color vision test is unproven and mindful of the concern for the safety of the passengers and the persons that might be involved with the transportation of cargo on the railroad, Mr. Quinn should be subjected to the further requirement of a practical test for a period of one year."

The trial court entered judgment for $60,333.09, plus interest, as back pay and also ordered Southern Pacific to enroll plaintiff in the next firemen's class to be conducted.

Southern Pacific's first challenge on appeal is to the subject matter jurisdiction of the trial court. It contends that the trial court lacked jurisdiction, because the Railway Labor Act, 45 U.S.C. § 151 et seq., vests primary and exclusive jurisdiction over labor-related disputes between the railroads and their employes in the National Railroad Adjustment Board (NRAB). Southern Pacific relies on 45 U.S.C. §§ 152 and 153, which respectively provide, in part:

"It shall be the duty of all carriers, their officers, agents and employes to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules and working conditions, and to settle all disputes, whether arising out of the application of such agreements or otherwise, in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employers thereof." 45 U.S.C. § 152.

"(i) The disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, including cases pending and unadjusted on June 21, 1934, shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the disputes." 45 U.S.C. § 153, first (i).

The foundation of Southern Pacific's argument is that plaintiff's complaint is fairly characterized as one "concerning rates of pay, rules or working conditions" and is, therefore, within the exclusive jurisdiction of the NRAB.

We reach a contrary conclusion. As expressed by the United States Supreme Court, the purpose of the Railway Labor Act is "to promote stability in labor management relations in this important national industry by providing effective and efficient remedies for the resolution of railroad-employe disputes arising out of the interpretation of collective bargaining agreements." Union Pacific R. Co. v. Sheehan, 439 U.S. 89, 94, 99 S.Ct. 399, 402, 58 L.Ed.2d 354 (1978). (Emphasis supplied.) The exclusive jurisdiction of NRAB, therefore, extends to any claim which depends on an interpretation of the collective bargaining agreement; it is the essential nature of the claim that controls, not the characterization. Andrews v. Louisville & Nashville R. Co., 406 U.S. 320, 322-24, 92 S.Ct. 1562, 1564-65, 32 L.Ed.2d 95 (1972); see also Gray v. Chessie System, 588 F.Supp. 1334 (D.Md.1984). In Andrews, for example, the Supreme Court...