Opinion
Civ. No. 3:96-CV-3405-H
March 5, 2002
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant's Motion for Summary Judgment, filed June 30, 1997; Defendant's Supplemental Memorandum, filed May 21, 2001; Plaintiffs Response thereto, filed June 12, 2001; and Defendant's Reply filed June 26, 2001. Also before the Court is Plaintiffs Motion for Summary Judgment, filed May 21, 2001; Defendant's Response, filed June 12, 2001 and Defendant's Annotated Response, filed June 26, 2001; and Plaintiffs Reply, filed June 26, 2001. In addition, the Court also has before it the extensive Administrative Record, which consists of 12 volumes and 5, 051 pages. Upon review of the pleadings, briefs, and relevant authorities, the Court is of the opinion for the reasons stated below that Defendant's Motion for Summary Judgment should be DENIED and Plaintiffs Motion for Summary Judgment should be GRANTED.
References to the Administrative Record will be designated by the abbreviation "AR" followed by the page number, e.g. (AR: 0001).
I. BACKGROUND
A. Factual Background
This case involves the results of the March 24, 1989 Super Tanker M/V Exxon Valdez accident. Attributing the cause of the accident to the drunken Valdez Captain, Exxon formally adopted a "Statement of Policy Regarding Employee Alcohol and Drug Use" in July 1989, which barred all employees with "substance abuse problem[s]" from holding designated safety-sensitive" positions. Exxon also designated approximately ten percent of its jobs as "safety sensitive," affecting approximately 1800 positions.
See Findings, Conclusions, and Recommendations of the United States Magistrate Judge, adopted by this Court in the related case of EEOC v. Exxon Corp., 125 F. Supp.2d 987, 990-91 (N.D. Tex. 2000).
The Policy provides in relevant part:
No employee with alcohol or drug dependency will be terminated due to a request for help in overcoming that dependency or because of involvement in a rehabilitation effort. However, an employee who has had or is found to have a substance abuse problem will not be permitted to work in designated positions identified by management as being critical to the safety and well-being of employees, the public, or the Corporation.
(AR: 1305).
Under the policy, employees who have participated in rehabilitation programs are considered to have a "substance abuse problem" and are, consequently, precluded from all of the designated jobs. The policy does not require individualized assessments of each rehabilitated employee to determine fitness for these positions, but precludes all rehabilitated employees from safety sensitive" jobs. Precluded employees are transferred to non-designated positions in the company. Exxon justifies its across-the-board policy by claiming that the inability to predict when a former substance abuser will relapse prevents it from employing any rehabilitated employee in a designated spot due to the attendant safety risk. Exxon's official criteria for the safety-sensitive designations are for jobs where:
a) there exists a high exposure to catastrophic public, environmental, or employee incidents;
b) the person in such position performs a key or direct role in operating the process where failure could cause catastrophic incident; and
c) there exists either no direct supervision or very limited supervision to provide an operational check.
(Pl. Mot. Summ. J. at 9).
B. Procedural Background
This case comes on appeal from a Final Decision and Order of the Administrative Review Board ("Board") of the United States Department of Labor ("DOL"), dated October 28, 1996. On January 7, 1992, the Office of Federal Contract Compliance Programs ("OFCCP") instituted administrative proceedings against Exxon pursuant to a complaint filed by Thomas J. Strawser, alleging that Exxon, a government contractor, violated the affirmative action requirements within Section 503 of the Rehabilitation Act and the accompanying regulations as the policy was applied to employees with disabilities such as Strawser. (AR: 0001-03). Strawser identifies himself as an alcoholic who participated in rehabilitation programs. (Pls. Mot. Summ J. at 4). Strawser was hired by Exxon in March 1981 and in 1985 moved to Exxon's facility in LaBarge, Wyoming and was employed as a field foreman. (Pls. Mot. Summ. J. at 6). When Exxon designated Strawser's position at LaBarge under the substance abuse policy, Strawser was offered a non-designated position as field foreman at an Exxon facility in Gillette, Wyoming, which he accepted. He remained in that position until his resignation on March 28, 1996. (Pls. Mot. Summ. J. at 7).
21 C.F.R. § 60-741.61(b)-(c) (2001) provides the procedures for filing complaints with the OFCCP for violations of the Rehabilitation Act.
The Fifth Circuit has held that Section 503 of the Rehabilitation Act provides no private right of action, and therefore an aggrieved employee must register a complaint with the Office of OFCCP, which will bring an action on behalf of that employee. See Rogers v. Frito-Lay, Inc., 611 F.2d 1074, 1085 (5th Cir. 1980).
On June 15, 1993, the Administrative Law Judge Recommended that OFCCP prevail in its Complaint against Exxon. (AR: 3961 [Recommended Decision and Order]). On October 28, 1996, the Board adopted the majority of the Administrative Law Judge's Recommendation in a 2-1 decision, and held that Exxon's substance abuse policy violates Section 503 of the Rehabilitation Act in that Strawser is a qualified individual with a disability and that Exxon failed to show that the policy, as applied to Strawser, was supported by "business necessity and safe job performance." (AR: 4919). The Board ordered Exxon to reinstate Strawser to his former position, compensate him for his relocation, and cease discriminating against him. (AR: 4919-20). The Board also ordered Exxon to "discontinue that portion of the 1989 Drug and Alcohol Policy categorically excluding any individual who "has had' a problem with alcohol from designated positions." (AR: 4920). Lastly, the Board directed that failure to comply with the specific provisions of the order would result in cancellation of all of Exxon's federal and federally-assisted contracts and subcontracts until it comes into compliance. (AR: 4920).
The Administrative Law Judge found that Strawser did not have a record of a disability (AR: 2985) and the Board disagreed (AR: 4900).
Exxon appealed the Board's decision to this Court on December 20, 1996 and DOL moved for Summary Judgment on June 30, 1997. On August 2, 2000, this Court stayed all proceedings pending resolution of the related case styled EEOC v. Exxon Corp., Civil Action Nos. 3:95-CV-1311-H, 3:95-CV-2537-H (" EEOC case"). The EEOC case involved whether Exxon's substance abuse policy violated the Americans with Disabilities Act ("ADA"). On October 20, 2000, this Court adopted the Findings, Conclusions, and Recommendations of the United States Magistrate Judge and entered summary judgment for Exxon, holding that the Plaintiffs were not disabled under the ADA and therefore, the policy as applied to them, did not violate the ADA. See EEOC v. Exxon Corp., 124 F. Supp.2d 987, 1015 (N.D. Tex 2000).
This Court vacated the stay by Order filed March 27, 2001.
The Court had previously held that the policy was not invalid on its face in not providing for individualized assessments. See EEOC v. Exxon Corp., 967 F. Supp. 208, 210 (N.D. Tex. 1997).
Exxon contends that the Court's opinion in the EEOC mandates ruling that the policy as applied to employees such as Strawser does not violate the Rehabilitation Act. DOL disagrees, asserting not only that the policy violates the Rehabilitation Act, but that the standard of review due agency decisions requires the Court to uphold the Board's decision.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where the facts and law as represented in the pleadings, affidavits and other summary judgment evidence show that no reasonable trier of fact could find for the nonmoving party as to any material fact. FED. R. CIV. P. 56; Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Innovative Database Systs. v. Morales, 990 F.2d 217 (5th Cir. 1993). "The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but is not required to negate elements of the nonmoving party's case." Lynch Properties, Inc. v. Potomac Ins. Co. of Ill., 140 F.3d 622, 625 (5th Cir. 1998) (citing Celotex, 477 U.S. at 322-25). If the movant fails to meet its initial burden, the motion must be denied, regardless of the nonmovant's response. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
If the movant does meet its burden, the nonmovant must go beyond the pleadings and designate specific facts showing that a genuine issue of material fact exists for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998). A party opposing summary judgment may not rest on mere conclusory allegations or denials in its pleadings unsupported by specific facts presented in affidavits opposing the motion for summary judgment. FED. R. CIV. P. 56(e); Lujan, 497 U.S. at 888; Hightower v. Texas Hosp. Assn., 65 F.3d 443, 447 (5th Cir. 1995).
In determining whether genuine issues of fact exist, "[f]actual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that a controversy exists." Lynch, 140 F.3d at 625; see also Eastman Kodak v. Image Technical Services, 504 U.S. 451 (1992). However, in the absence of any proof, the Court will not assume that the nonmoving party could or would prove the necessary facts. Lynch, 140 F.3d at 625. A party must do more than simply show some "metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "If the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Friou v. Phillips Petroleum Co., 948 F.2d 972, 974 (5th Cir. 1991).
III. STANDARD OF REVIEW
Under the Administrative Procedure Act ("APA"), this Court will uphold an agency's decision unless it is found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); see also Hawkins v. Agricultural Marketing Serv., DOA, 10 F.3d 1125, 1128 (5th Cir. 1993). Factual findings made pursuant to an adjudicative proceeding must be set aside if the action was "unsupported by substantial evidence." 5 U.S.C. § 706(2)(E); see Gore, Inc. d/b/a/ Pure Milk Co. v. Espy, 87 F.3d 767, 773 (5th Cir. 1996). "Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). Where questions of law arise, however, agency conclusions are reviewed de novo. See Macktal v. DOL, 171 F.3d 323, 326 (5th Cir. 1999); see also Davidson v. Glickman, 169 F.3d 996, 1000 (5th Cir. 1999); Institute for Tech. Dev. v. Brown, 63 F.3d 445, 450 (5th Cir. 1995).
IV. ANALYSIS
DOL moves for summary judgment to sustain the Board's decision that Exxon violated the affirmative action requirements of the Rehabilitation Act by instituting a policy that negatively affected the employment opportunities of qualified persons with disabilities, like Strawser. DOL also contends that Strawser is a qualified individual with a disability, but argues in the alternative that if this Court finds that Strawser is not a qualified individual with a disability, DOL has independent authority to prevent Exxon from excluding individuals with disabilities from employment opportunities. DOL also seeks to distinguish this case from EEOC v. Exxon Corp., 124 F. Supp.2d 987 (N.D. Tex. 2000) and its holding by emphasizing that the judicial review standards afforded agency decisions as well as Exxon's obligation to comply with the affirmative action requirement of the Rehabilitation Act make the analysis required in this case substantially different.
In its Summary Judgment motion, Exxon contends that the Court's holding in EEOC mandates ruling in this case that the Board incorrectly applied the legal standards governing Strawser's disability determination under the Rehabilitation Act, and therefore, the Board should not have found that Exxon violated the affirmative action requirements of the Act. In addition, Exxon asserts that the Board's remedy as to Strawser is moot because Strawser resigned from Exxon in 1996 and that the Board lacked legal authority to order Exxon to change its policies.
A. Rehabilitation Act
Section 503 of the Rehabilitation Act provides that contractors and subcontractors covered by the Act "shall take affirmative action to employ and advance in employment qualified individuals with disabilities." 29 U.S.C. § 793(a). An individual with a disability is defined as "any person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities; (ii) has a record of such an impairment; or (iii) is regarded as having such an impairment." 28 U.S.C. § 705(20)(B). The term "individual with a disability" does not apply to any person who "is an alcoholic whose current use of alcohol prevents such individual from performing the duties of the job in question or whose employment, by reason of such current alcohol abuse, would constitute a direct threat to property or the safety of others." 29 U.S.C. § 705(20)(C)(v). A qualified individual with a disability is one who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position." 21 C.F.R. § 60-741.2(t) (2001).
Both the Board's and ALJ's Decisions indicate that Exxon stipulated that it is a government contractor with respect to the dispute here, although this Court cannot locate the stipulation in the Administrative Record. (AR: 3981, 4895)
As a preliminary matter, Exxon attacks the Board's decision that Strawser is disabled on both substantive legal and procedural grounds. The substantive grounds will be addressed first.
1. Disability Determination
The Board aptly noted the contradictory nature of proof under the Rehabilitation Act, A Plaintiff must show both that he or she is an individual with a disability and that despite the disability, he or she can perform the required functions of the job. (AR: 4895). The Board held that Strawser was an individual with a disability under both the "regarded as" and "record of' prongs of the definition of disability (AR: 4986-4900) and that he was also a qualified individual because he held "the job of held foreman at LaBarge successfully and safely for nearly five years prior to being transferred and continued to function as a field foreman" after transfer. (AR: 4900). As an initial matter, this Court must determine whether substantial evidence supports a finding that 1) Exxon relied on Strawser's rehabilitation history and thereby discriminated against him on the basis of a record of a disability and 2) that Exxon regarded Strawser as disabled by determining that he was unfit to fulfil his designated position. If a question of law arises, however, this Court will review the Board's decision de novo.
Throughout this Opinion, the term "Plaintiff" will be used in place of and in the same manner as "Complainant."
Exxon argues that the Board's application of law in determining whether Strawser was regarded as or has a record of a disability was incorrect or that collateral estoppel bars further litigation of these issues. In addition, Exxon argues that OFCCP did not have authority, at the time it commenced administrative proceedings, to prosecute federal contractors for disability discrimination under § 503 of the Rehabilitation Act. These arguments involve questions to law and therefore are reviewed de novo. See Macktal v. DOL, 171 F.3d 323, 326 (5th Cir. 1999); see also Davidson v. Glickman, 169 F.3d 996, 1000 (5th Cir. 1999); Institute for Tech. Dev. v. Brown, 63 F.3d 445, 450 (5th Cir. 1995).
As mentioned previously in the Procedural Background ( see supra Part I.B.), this suit was preceded by the EEOC case, in which the Court held that the Plaintiffs represented by the EEOC were not qualified individuals with disabilities and therefore, Exxon's policy as applied to them did not violate the ADA. The definition of "individual with a disability" under the ADA is exactly the same as under the Rehabilitation Act. See 42 U.S.C. § 12102(2); see also 28 U.S.C. § 705(20)(B). In fact, determining whether a Plaintiff is an individual with a disability involves the same analysis whether under the Rehabilitation Act or the ADA. See 29 C.F.R. § 1630.1(c)(2001) (providing that the standards to apply in the ADA are not to be lesser than those applied in the Rehabilitation Act). This Court previously held that "Rehabilitation Act caselaw is especially persuasive given that the ADA is modeled after the Rehabilitation Act and Congress has directed that the two acts' judicial and agency standards be harmonized." See EEOC v. Exxon Corp., 967 F. Supp. 208, 212 (N.D. Tex. 1997). Specifically, "Rehabilitation Act cases are persuasive on questions regarding what constitutes a disability under the ADA." Bridges v. City of Bossier, 92 F.3d 329, 334 n. 7 (5th Cir. 1996). Thus, this Court must determine whether the decision in EEOC is dispositive here, a question that involves the application of collateral estoppel.
The "Plaintiffs" in the EEOC case were "all present or former employees of Exxon who, in the past, have been treated for drug or alcohol abuse." EEOC, 124 F. Supp.2d at 990. There were sixteen named Plaintiffs in EEOC, six of whom were addressed in motions and ten others who the EEOC identified as potential trial witnesses, but the EEOC also purported to represent at least 60 other claimants. See id. at 993 n. 22, 1015.
The ADA defines disability as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such impairment." 42 U.S.C. § 12102(2).
a. Collateral Estoppel
Exxon asserts that collateral estoppel, or issue preclusion, prevents further consideration of the issue of whether Strawser is a qualified individual with a disability. (Pl. Mot. Summ, J. at 24). The basis of this argument is that the Government previously litigated the very same issue of disability in the EEOC case and that the Court's order granting summary judgment in that case governs in this case. See EEOC, 124 F. Supp.2d at 1015. DOL argues that the lack of mutuality, the limited role Strawser played in the EEOC litigation, and the "substantial evidence" standard of review preclude the application of collateral estoppel. (Def. Resp. at 25-26). Each of these arguments will be addressed below.
Collateral estoppel or issue preclusion, like res judicata, prevents litigation of matters already determined in a previous cause of action. See Montana v. United States, 440 U.S. 147, 153-54 (1979). Issue preclusion will apply "in a second proceeding that involves separate claims if the claims involve the same issue." See RecoverEdge L.P. v. Pentecost, et al., 44 F.3d 1284, 1291 (5th Cir. 1995). However, collateral estoppel will not apply where the issues involve application of different legal standards. See id. Collateral estoppel only applies where four conditions are met. "First, the issue under consideration in a subsequent action must be identical to the issue litigated in a prior action. Second, the issue must have been fully and vigorously litigated in the prior action. Third, the issue must have been necessary to support the judgment in the prior case. Fourth, there must be no special circumstance that would render preclusion inappropriate or unfair." United States v. Shanbaum, 10 F.3d 305, 311 (5th Cir. 1994). Privity of one party, not mutuality, is also required for application of collateral estoppel in cases involving private parties. See Blonder-Tongue Labs., Inc. v. University of Illinois Found., 402 U.S. 313, 350 (1971) (eliminating the mutuality requirement for collateral estoppel in patent cases); see also Parklane Hosiery, Inc. et al. v. Shore, 439 U.S. 322, 332-33 (1979) (extending the Blonder-Tongue theory to all types of civil cases). A Plaintiff is barred, however, from asserting collateral estoppel against the United States, where the Plaintiff was not a party to the initial action. See United States v. Mendoza, 464 U.S. 154, 158 (1984).
Under res judicata, a final judgment stemming from an action between the same parties or their privies constitutes complete preclusion in a later case based upon the same cause of action. See Cromwell v. County of Sac, 94 U.S. 351, 352 (1876); see also United States v. Shanbaum, 10 F.3d 305, 310 (5th Cir. 1994).
"Under [the] mutuality doctrine, neither party could use a prior judgment as an estoppel against the other unless both parties were bound by the judgment." Parklane Hosiery, 439 U.S. at 326-37.
This form of preclusion is called non-mutual offensive collateral estoppel. See Mendoza, 464 U.S. at 158. Offensive collateral estoppel is used by a Plaintiff "to foreclose a Defendant from litigating an issue the Defendant has previously litigated unsuccessfully in an action with another party" Parklane Hosiery, 439 U.S. at 326 n. 4. Defensive collateral estoppel is used by a Defendant "to prevent a Plaintiff from asserting a claim the Plaintiff has previously litigated and lost against another Defendant." Id.
As an initial matter, in considering whether mutuality between the parties exists, this Court must determine whether DOL and EEOC constitute the same party. The Supreme Court in Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 402-03 (1940) addressed this very question and analyzed the interests of two federal agencies — the Bituminous Coal Commission ("BCC") and the Internal Revenue Commission ("IRS") — to determine whether a decision of the BCC was res judicata in a subsequent tax case where the BCC's decision was crucial. See id. at 402. The Court explained the relationship between the two agencies and their officers for purposes of privity by stating "[t]here is privity between officers of the same government so that a judgment in a suit between a party and a representative of the United States is res judicata in relitigation of the same issue between that party and another officer of the government." See id. at 402-03.
The DOL argues that the two agencies are not in privity and relies on an Eleventh Circuit case that applied the Mendoza rationale prohibiting offensive non-mutual collateral estoppel against the United States to state government agencies. See Hercules Carriers, Inc. v. Claimant Slate of Florida, Dep't of Transportation, 768 F.2d 1558, 1578-80 (11th Cir. 1985). The Plaintiff in Hercules filed an action for exoneration or limitation of liability stemming from an allision of a ship and a bridge in which the State of Florida, through the Department of Transportation, was a claimant. See id. at 1563. In a previous action, the state Department of Professional Regulation ("DPR") found that the pilot of the ship was not negligent in determining whether he was entitled to his pilot's license. See id. at 1577-78. Hercules argued that due to the DPR decision the State was collaterally estopped from litigating the issue of negligence in the limitations case. See id. at 1578. The Court reasoned that collateral estoppel did not apply because 1) collateral estoppel would cause DPR to consult with other government agencies to accommodate their potential cases, 2) the two state agencies have different functions, and 3) the scope of the DPR proceeding was significantly more narrow on the issue of negligence than that in the lower court. See id. at 1580-81. These factors are not present in the instant case.
First, the agencies here are charged with the same mission and purpose in addressing claims of disability discrimination. The regulations provide that the two agencies must share information and coordinate in the processing of complaints. See 41 C.F.R. § 60-741.61, 60-742.2 (2001). Furthermore, the OFCCP is charged with acting as "EEOC's agent for the sole purpose of receiving, investigating, and processing the ADA charge component of a section 503 complaint dual filed under the ADA . . . ." 41 C.F.R. § 60-742.5 (2001). Second, the scope of the EEOC and the DOL cases are precisely the same on the issue of whether the Plaintiffs are individuals with disabilities. As stated above, the Rehabilitation Act and the ADA are directed to be read together with regard to disability. See supra Part IV.A.1. Third, the scope of the proceedings in the EEOC and DOL case are the same. The same judicial body is addressing both cases, both agencies are arguing that the same Exxon policy is discriminatory for the same reasons, and the burden of proof under the summary judgment standard is the same. The concerns posed by the Court in Hercules, are not present and therefore, this Court finds that the EEOC and DOL are in privity and mutuality exists for purposes of collateral estoppel.
At this point, it is important to address the required four factors for application of collateral estoppel. First, the issue in both cases is identical. Both cases involve the crucial determination of whether the Plaintiffs are individuals with disabilities. Although one case calls for a determination under the ADA and the other under the Rehabilitation Act, the statutes are to be read and interpreted in the same manner. See supra Part IV.A.1.
DOL argues that the issue of Strawser's disability was never resolved in the EEOC case and that the Court's opinion only addressed whether the sixteen named Plaintiffs were covered by the Americans with Disabilities Act. (Resp. at 26). This assertion is plainly not true. As the United States Magistrate Judge stated previously in response to the same argument as posed by the EEOC, "both the EEOC and Exxon were put on notice by the District Court that ihis motion would address the sole issue of whether any of the Plaintiffs were `disabled' under the ADA." See EEOC, 124 F. Supp.2d at 1015 (emphasis in the original). Furthermore, the EEOC brought its claim of discrimination on behalf of named Plaintiffs and "similarly situated individuals" (Pl. Mot. Summ J. App. at 0556, 0559 (Compl., filed June 28, 1995)) and Strawser was identified by Exxon in the EEOC litigation as "an individual employed by the defendant who has a record of rehabilitation for substance abuse and therefore is ineligible to hold a designated position" under the substance abuse policy. Id. at 0580 (Resp. to Interrogatory No. 6). "The Supreme Court has decisively rejected attempts by government agencies to avoid the bar of issue preclusion in order to litigate repetitively against the same defendant on virtually the same set of facts." EEOC v. American Airlines, Inc., 48 F.3d 164, 171 (5th Cir. 1995). Given the scope of the Magistrate Judge's opinion and EEOC's complaint, the Government cannot avoid preclusion here.
DOL also asserts that preclusion does not apply because the EEOC case was not a class action and preclusion only applies to class actions. (Resp. at 26). This assertion is also not true. The case on which DOL relies, General Telephone Co. v. EEOC, 446 U.S. 318, 332 (1980), found that the EEOC was not required to bring suit's as class actions regardless of the interest of the Defendant in obtaining a judgment binding on those with similar grievances under the doctrine of res judicata. The Supreme Court's decision, however, did not provide that preclusion is inapplicable to non-class actions, nor did it discuss collateral estoppel.
The EEOC argued that if the Court granted summary judgment with regard to the sixteen named Plaintiffs, than it had the right to present evidence "regarding any and all employees covered under the Act who were affected by the policy." (Resp. at 7); EEOC v. Exxon Corp., 124 F. Supp.2d 987 (N.D. Tex. 2000). EEOC went on to state "[t]he limitation in the number of identified individuals, proposed to manage discovery and trial, cannot bind the rights of what is estimated to be at least 60 other claimant on whose behalf this suit has been brought." Id. As stated above, however, EEOC was on notice and the Court confirmed that the scope of the opinion extended to and bound the other claimants.
Second, the common disability question was fully and vigorously litigated in the previous action. The EEOC and Exxon twice briefed the issue of whether the Plaintiffs were "disabled" under the ADA. See EEOC, 124 F. Supp.2d at 992. In addition, in support of its Motion for Summary Judgment, Exxon submitted evidence not only in regard to the sixteen named Plaintiffs, but also in regard to all Plaintiffs. See id. at 993. Although the EEOC evidence consisted only of declarations of seven of the named Plaintiffs, the Court "in an effort to provide the broadest overview possible of the record of disability, extend[ed] its analysis to the sixteen named Plaintiffs and to Exxon's evidence pertaining generally to all the Plaintiffs." Id. Given the multiple briefing opportunities and breadth of the Court's review of the disability issue, the second prong is satisfied. Furthermore, because the disability issue was the sole issue on which Judgment rested in the EEOC case, the third prong is satisfied.
The Parties initially submitted cross-motions for summary judgment on August 9, 1996, which addressed both whether the Plaintiffs were "disabled" under the ADA and whether Exxon's policy, on its face, violates the ADA. See EEOC, 124 F. Supp.2d at 992. These motions were referred to the United States Magistrate Judge and the District Court adopted the findings, conclusions and recommendations as to the facial validity issue only. See id. Exxon later received permission to file another motion for summary judgment on the disability issue, which it filed on June 29, 2001, to which the EEOC responded. See id.
Four of the named Plaintiffs were dismissed from the action prior to the Court's consideration of the Motion for Summary Judgment. See id. at 993 n. 26. The Court, however, considered facts specific to them, in addition to the other Plaintiffs, because the question of whether any of them were disabled was still relevant. See id.
The fourth prong, that there is no special circumstance that would render the preclusion unfair, was not addressed by DOL. It is important to note, however, that collateral estoppel is especially relevant here to avoid inconsistent results. The Government had a "full and fair opportunity" to bring forth evidence to establish a genuine issue of fact with regard disability and failed to sustain its burden. See EEOC, 124 F. Supp.2d at 1016. The Government is not, therefore, entitled to a second attempt at proving the same issue.
The importance of avoiding inconsistent results is noted in the Statute itself by providing that the Secretary of Labor must develop procedures to avoid inconsistencies and conflicts between ADA and Rehabilitation Act cases. See 29 U.S.C. § 793(e).
Therefore, this Court finds that DOL is collaterally estopped from litigating the issue of Strawser's disability.
B. Independent Authority
DOL argues that it has independent authority to enforce provisions of the Rehabilitation Act separate from whether Strawser is found to be a qualified individual with a disability. (Def. Mot. Summ. J. at 19-21). As provided above, 29 U.S.C. § 793(a) sets out the affirmative action requirements for federal contractors. The OFCCP is charged with responding to individual complaints filed against federal contractors for violations of the Rehabilitation Act and may also conduct "compliance reviews" of federal contractors to determine whether they are complying with the provisions of the Rehabilitation Act. See 41 C.F.R. § 60-741, 60-741.61, 741.65 (2001). DOL asserts that it is the authority given to OFCCP to conduct compliance reviews that gives OFCCP the independent authority to assert claims against Exxon absent a finding of disability in regard to Strawser. (Def. Mot. Summ. J. at 20).
OFCCP may conduct compliance reviews to determine if the contractor maintains nondiscriminatory hiring and employment practices and is taking affirmative action to ensure that applicants are employed and that employees are placed, trained, upgraded, promoted, and otherwise treated in accordance with this part during employment. The compliance review shall consist of a comprehensive analysis and evaluation of each aspect of the aforementioned practices, policies, and conditions resulting therefrom. Where necessary, recommendations for appropriate sanctions shall he made.
41 C.F.R. § 60-741.60 (2001).
DOL correctly states that OFCCP is permitted to challenge exclusionary policies in the absence of an individual complaint. Id. The OFCCP may analyze a federal contractor's "practices, policies, and conditions resulting therefrom" and make recommendations, if necessary, for sanctions. 41 C.F.R. § 60-741.60(a) (2001). Implicit in this recommendation process, however, is a finding that the contractor violated the Rehabilitation Act with regard to its employees or applicants for employment. See 41 C.F.R. § 60-741.65(a) (2001) (discussing enforcement proceedings if a compliance review or other investigation finds a violation of the Rehabilitaton Act).
DOL's argument fails. DOL has not suggested that OFCCP entered into the compliance review process, but only suggests that it has independent authority to do so. In addition, the only evidence to support a violation is the evidence presented before the ALJ as to Strawser. As previously stated, this Court is constrained by the administrative review process to look only at the record in existence, "not some new record made initially in the reviewing Court." Camp v. Pitts, et al., 411 U.S. 138, 142 (1973). DOL neither presented evidence in the ALJ proceedings that OFCCP conducted a compliance review nor that there were facts to support a finding of a violation with regard to other employees that would be revealed through such a process. Without more, this Court finds no merit in DOL's argument which is hypothetical and is not an issue properly before this Court for review.
C. Lack of Authority
Exxon argues that the OFCCP did not have authority to prosecute federal contractors tinder the pre-1992 version of Section 503 of the Rehabilitation Act. Another Court in this District held in 1997 that prior to the October 29, 1992 amendments, the statute "did not itself prohibit disability discrimination nor did it mandate affirmative action in favor of individuals with disabilities." See American Airlines, Inc. v. Metzler, 958 F. Supp. 273, 275 (N.D. Tex. 1997), rev'd and dismissed on other grounds for lack of jurisdiction, 176 F.3d 283 (5th Cir. 1999). Without addressing the merits of this decision, this Court finds that under the principle set by the Supreme Court "a court is to apply the law in effect at the time it renders its decision," Bradley v. Richmond Sch. Bd., 416 U.S. 696, 711 (1973), the pre-1992 version of Section 503 is irrelevant. The proceedings before the ALJ did not close until December 28, 1992 and the Recommended Decision and Order was issued June 15, 1993, well after the amendments were effective. (AR: 3961). Therefore, absent a showing of "manifest injustice," "statutory direction or legislative history to the contrary," this Court finds that OFCCP had authority at the time of the ALJs decision to prosecute Exxon, Bradley, 416 U.S. at 711.
D. Other arguments
Given the Court's reasons stated above, it is unnecessary to reach the issue of the Board's authority to order injunctive relief and the related question of whether the Board's remedy specific to Strawser is moot due to his resignation.
V. CONCLUSION
For the reasons stated above, Defendant's Motion for Summary Judgment is DENIED and Plaintiffs Motion for Summary Judgment is GRANTED.
Plaintiff will submit a Proposed Form of Judgment by noon, March 11, 2002 .