Smith v. RI ST. SERV. FOR BLIND & VIS. HANDICAPPED, Civ. A. No. 83-0292 S.

• Decision Date: 02 March 1984
• Docket Number: Civ. A. No. 83-0292 S.
• Parties: James A. SMITH v. RHODE ISLAND STATE SERVICES FOR the BLIND AND VISUALLY HANDICAPPED and Terrell H. Bell in his capacity as Secretary of Education.
• Court: U.S. District Court — District of Rhode Island

581 F. Supp. 566

James A. SMITH v. RHODE ISLAND STATE SERVICES FOR the BLIND AND VISUALLY HANDICAPPED and Terrell H. Bell in his capacity as Secretary of Education.

Civ. A. No. 83-0292 S.

United States District Court, D. Rhode Island.

March 2, 1984.

Lovett, Morgera, Schefrin & Gallogly, Ltd. by Aram R. Schefrin and Marc B. Gursky, Providence, R.I., for plaintiff.

Dennis J. Roberts, II, Atty. Gen., William M. Walsh, Sp. Asst. Atty. Gen., Robert J. Fallon, Chief Legal Counsel, Dept. of Social and Rehabilitative Services, State of Rhode Island, Providence, R.I., for Rhode Island State Services.

Lincoln C. Almond, U.S. Atty., Everett C. Sammartino, Asst. U.S. Atty., Providence, R.I., for Terrell H. Bell.

OPINION AND ORDER

SELYA, District Judge.

This is an action brought by James A. Smith, a licensed blind vendor, against Rhode Island State Services for the Blind and Visually Handicapped¹ and Terrell H. Bell, in his capacity as United States Secretary of Education, pursuant to 20 U.S.C. § 107d-2(a). Plaintiff appeals from a decision rendered by an ad hoc arbitration panel convened by the Secretary in accordance with the two-step grievance procedure provided for under the Randolph-Sheppard Act, as amended, 20 U.S.C. § 107 et seq. (the "Act").² The Act established a cooperative federal/state scheme to enlarge economic opportunities for the blind through the training and licensure of visually impaired persons to operate vending facilities on government property. 20 U.S.C. § 107. Responsibility for administering the program is apportioned between the federal and state governments. See 20 U.S.C. § 107a. The federal Rehabilitative Services Administration is principally responsible for carrying out the overall mandates of the Act, 20 U.S.C. § 107a(a)(1), and the program is administered at the local level by state licensing agencies designated pursuant to 20 U.S.C. § 107a(a)(5).

Under neoteric federal regulations, an application for designation as a state licensing agency must contain a plan outlining the rules and regulations applicable to the state's blind vendor program, including rules relating to the transfer and promotion of licensees. 34 C.F.R. §§ 395.3, 395.5. In accordance with this requirement, RISB conceived, incubated, nurtured and thereafter submitted an ichnographic masterpiece yclept "Baby Randolph" as an adjunct to RISB's application for redesignation as a state licensing agency during the winter of 1979-1980. The rule governing the method of selection, transfer and promotion of blind vendors is found in Attachment IX-A, Paragraph C.1 of that plan. That section provides in substance that the transfer and promotion of vendors shall be based upon seniority, and outlines the method by which seniority is to be calculated.

In the present case, Smith disputes an arbitration panel's refusal to find that, under the applicable seniority rules, he (rather than one Ruth McGarrity) should have been awarded Stand # 54 at the Garrahy Judicial Complex in Providence, Rhode Island. Pursuant to conferences with the court held on November 22, 1983 and December 1, 1983, respectively, the parties agreed to submit this case for decision on the administrative record, augmented by briefs. The final such submission was received on January 23, 1984. Reasoned consideration of the issues involved in this appeal requires, at the outset, perscrutation of the material facts as limned by the record below.

I.

The plaintiff first began working in Rhode Island's blind vendor program in 1962, and was licensed three years later when he reached the age of twenty-one. Smith continuously participated in the program from the time of his initial assignment to the present, during which period he has worked at six different stands located in various buildings in the Providence area. During the major portion of Smith's tenure, he operated what is commonly referred to as a "profit/loss stand." Under such an arrangement, a vendor is allowed to share in the profits of the enterprise; and concomitantly, is chargeable for some or all of the losses incurred. A licensing contract is generally drawn up to commemorate the rights and obligations of the parties with respect to a particular stand.

There were, however, several intervals within which Smith did not do business as a profit/loss vendor. During the period before he was licensed and during a subsequent time span from November 2, 1972 through December of 1976, Smith worked at an "agency stand." In that capacity, the plaintiff was paid a salary based on minimum wage. He was neither directly concerned with, nor affected by, profit or loss; and he held no licensing contract. Smith's change in status in the fall of 1972 came about as a result of discussions between him and representatives of RISB. During this dialogue, agency personnel informed Smith that he had incurred a substantial operating debt; and that, consequently, he could not continue to operate on a profit/loss basis. Beset by a sea of red ink, the plaintiff agreed to move to a different stand and to become a salaried employee. Apart from this change in the economic relationship between Smith and RISB, Smith's job remained virtually the same. The plaintiff continued throughout to perform the managerial functions attendant to running a vending facility including ordering supplies, training new employees, and paying bills. Noone told Smith that his time in service at an agency stand would not count towards seniority in the blind vendor program.

In approximately 1977, in response to newly enacted federal regulations, RISB began developing a state plan of rules and regulations for the Rhode Island blind vendor program. In furtherance of this end, E. Lyman D'Andrea, RISB's chief executive, met with representatives of the Associated Blind Vendors of Rhode Island (the "Association").³ Thereafter, subcommittees of the Association were formed to develop recommendations with respect to various aspects of the state plan (including proposed rules and regulations applicable thereto).

One of these panels (the "Committee"), chaired by McGarrity, was concerned with transfer and promotion, an area which included the definition and mode of calculation of seniority. The Committee solicited a list of vendor names and corresponding dates of licensure from RISB. The testimony was murky as to what document(s) the Committee actually received in response to its request. In any event, the group eventually compiled a new seniority list on which the plaintiff was credited with less time than McGarrity, reflective of the fact that the time Smith had worked at an agency stand was not counted. The Committee also drew up a proposal as to transfers and promotions, which included a statement that "seniority shall be based upon the years of service with contract followed (sic) by blind workers and trainees."

Neither the list nor the proposed seniority rule was ever formally communicated to the Association through official channels. McGarrity claims, however, that both the list and the Committee's proposals were sent out to all blind vendors along with an invitation to notify McGarrity of any erroneous information contained in the rota. In contrast to McGarrity's testimony, however, both the plaintiff (who was vice-president of the Association at the time) and the president then in office maintain that they never received anything from the Committee.

In the late spring of 1979, the Association held a series of meetings at which various portions of the state plan were discussed among the membership. The testimony was inconsistent and confusing, however, with respect to whether, and/or to what extent, the seniority rules were addressed. For example, Barry Humphries, one of the Committee members, stated that the McGarrity mailing was discussed during a meeting of the general membership held on June 21, 1979; but he was unable to testify as to the content of that discussion. In contrast, Robert Moreau, another Committee member, avouched that the proposed seniority rule was never discussed by the membership of the Association as a whole after the Committee had transmitted its proposal. Yet another version was offered by the then president of the Association, Mary Scurka, who stated that any discourse which took place vis-a-vis the proposed seniority policy was general only, and never focused upon the exclusion of time spent at an agency stand.⁴ D'Andrea contradicted both Moreau and Scurka, and went well beyond Humphries: he insisted that he (presumably during this same time period) not only descanted on the proposed seniority rule, but in fact specifically explained how it would differentiate between time logged at an agency stand and time worked under contract at a profit/loss stand. The state rules and regulations were eventually promulgated and subsequently approved by the federal government. Article IX, entitled "Selection, Transfer and Promotion of Vendors" read as follows:

The S.L.A. State Licensing Agency with the active participation of the State Committee of Blind Vendors, hereby establishes a selection, transfer and promotion system for vendors which will be uniformly applied to all vendor vacancies that develop or occur in the vending facilities program as outlined in Attachment IX-A.

Attachment IX-A, Paragraph C.1 addressed the method of selection, transfer and promotion of vendors in the following verbiage:

In accordance with the standards as outlined in Paragraphs A and B, the selection, transfer and promotion of vendors shall be based upon seniority. The S.L.A. shall establish and maintain a roster containing the name of each vendor, the date of his or her original licensing, any subsequent date(s) of relicensing and their vending facility address. Seniority, then, shall be calculated from the original date of licensing which shall be multiplied by the number of months during which the vendor was assigned and licensed to operate any vending

...