Petition for Writ of Certiorari — Enright v. Solar Turbines, Inc.
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Supreme Oceurt, U.S.
FILED
(L 02115 7 JAN 2 9 2003
NO. oprige OF THE @LERK
ELLE LEE LLENEE ! SEIN L EG IE ARTE LLL LAE LLL RELL ELIE L IIE, BILAL DRIED. PE RE RESET
IN THE
SUPREME COURT OF THE UNITED STATES
PAUL ENRIGHT,
Petitioner,
v.
SOLAR TURBINES INCORPORATED,
Respondent.
On Petition For Writ Of Certiorari
To The United States Court Of
Appeals For The Ninth Circuit
PETITION FOR WRIT OF CERTIORARI
PAUL ENRIGHT
1194 Greenfield Dr.
El Cajon, CA 92021
Home (619) 447-4194
Pager (619) 682-2886
Pro Se Petitioner
AR ATLA SMILES AOS AIT AS IAAL SATIS PEI TREE TES SERRE RNS IERIE IT
i
QUESTIONS PRESENTED
1. Whether the EEOC Interpretive Guidance on the
Definition of the Term "Disability" February 2000, is
valid and should be followed in determining if an
individual is substantially limited in the ability to
engage in work under the Americans With Disabilities
Act of 1990 (ADA), 42 U.S.C. §§ 12101, et. seq., and if
so, whether the Ninth Circuit properly applied this
guidance.
2. Whether the Federal Rule of Evidence 702 was
properly applied in determining that Mr. Enright's
vocational rehabilitation counselor did not qualify as
an expert witness, despite the fact that he has
previously testified as a vocational expert, and does
his report which concluded that Mr. Enright was
precluded from approximately 29% of all jobs in the
Dictionary of Occupational Titles (DOT) due to his
impairment, create a triable issue of material fact as
to whether Mr. Enright is disabled under the ADA?
3. Whether an arbitrator's decision under a
Collective Bargaining Agreement is admissible
evidence in an ADA case, where the arbitrator
exceeded the scope of submission by ruling on
Petitioner's federal statutory rights under the ADA,
and where the arbitrator was not an impartial
decisionmaker because he was exclusively chosen by
Petitioner's adversaries.
ii
LIST OF PARTIES
All parties appear in the caption of the case on the
cover page. Petitioner is Paul Enright. Respondent is
Solar Turbines Incorporated.
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED .........:.ccccsssessssesesesseseeseeeees i
as cuvcssscsihiienvasnsypsnnvenvennes ii
TAMER CP AUTTRIORITING ...........-..-:000esesorssesessseorees’ vi .
CS LEELA TRS 1
a siba 1
STATUTES, REGULATIONS AND EEOC
INTERPRETIVE GUIDANCE INVOLVED ...........000000: 1
STATEMENT OF THE CASE. ...........s.000000+: sismsauales 2
REASONS FOR GRANTING THE WRIT ..........:0000++. 11
I. THE NINTH CIRCUIT'S DECISION
DISREGARDS EEOC INTERPRETIVE
GUIDANCE ON THE DEFINITION
OF THE TERM “DISABLITITY”............:0:0s:0000: 14
Il. THE NINTH CIRCUIT DID NOT PROPERLY
APPLY THE FEDERAL RULE OF EVIDENCE
702 AND THEREBY ELIMINATED KEY
EVIDENCE IN THE EVALUATION OF
ENRIGHT’S IMPAIRMENT ..............-seceeeeeeeeees 21
Ill. THE NINTH CIRCUIT’S RULING ALLOWING
CONSIDERATION OF THE ARBITRATION
DECISION IS IN DIRECT CONFLICT WITH
SUPREME COURT DECISIONS ...............00008 24
CONCLUSION .ccccccscccvscessevcnsccsevsscsescecesesvscccessocssees 27
APPENDIX A
Ninth Circuit Denial of Panel Rehearing
and Rehearing En Banc (Nov. 4, 2002) ............... la
APPENDIX B
Memorandum of U.S. Court of Appeals
For the Ninth Circuit (Sept. 19, 2002) ............... 3a
APPENDIX C
Order of the U.S. District Court for
the Southern District of California
Granting Solar Turbines’ Motion For
Summary Judgment (Nov. 1, 2001).................... 9a
APPENDIX D
Opinion of the Arbitrator under the
Collective Bargaining Agreement
Between Solar Turbines Inc. and the
International Assoc. of Machinists
SS IE heise ntncnnencetcnilnaahicnticessssscexsetbines 17a
APPENDIX E
Relevant Statutes, Regulations an
EEOC Interpretive Guidance ...............scsceeeeeees 3la
APPENDIX F
Medical Letter with Supplement by
Dr. Kilburn for Consultation with
Mr. Enright on April 19, 1999
SAA. TERE Baer HONE ence chocscesnsnctnncosssnscevsvcnseowssensnt 46a
7
TABLE OF CONTENTS
(continued)
APPENDIX G
State of California Department of
Rehabilitation Severity of Disability
Determination for Paul Enright
a ee BN civiececeiciseriicrcecrecsesisonedassesmce 57a
APPENDIX H
State of California Department of
Rehabilitation Retraining Contract
for Paul Enright [C.A. ER 176-178] .................. 60a
APPENDIX |
Mark Remas’ Vocational Evaluation Report
of Paul Enright [C.A. ER 203-207] ................... 65a
vi
TABLE OF AUTHORITIES
Page
CASES
Albertson’s, Inc. v. Kirkingburg,
Ee UD. GO Uae ceetancentanvencepscatnensseisscsntentenes 12
Alexander v. Gardener-Denver Co.,
41S U.G. FS IGF) .ncecoseccsceceseconccsses 10, 14, 24, 25
Collings v. Longview Fibre Co.,
63 F.3d S28 (Sth Cir. 1995) .......cccccccosccsccccreccess 11
Desrosiers v. Flight Int’l of Fia.,
156 F.3d 952 (Sth Cir. 1996).....cccrrcccccccccceccsceees 11
Sutton v. United Air Lines, Inc.,
ee Chins SE 8 Cee trictrennccnsicttiintindsheennianenthetna 12
Teachers v. Hudson,
SEO UE, Fe Ci iractecccnvessneiemnnnns 14, 24, 26
Toyota Motor Mfg., Kentucky, Inc. v. Williams,
RE Ke. Ie Ge eeitenatensansnensceaiersinnenions 11, 12
Vargas v. Gromko,
DTT F. Dapp. FOS (LGIT) ncvecerccrsveccesococeescnsccsevsse 10
STATUTES |
OGG WI ices 1 |
43 UDG. © Be eeetititeaniitinienionsnniin 12
QB UB AL. Te Bi cc ctnncintcctnvinsnmnisceneciinns 1
En er eee
vii
TABLE OF AUTHORITIES
(continued)
Page
Fae IS OF Sie IE deiinicnentcnencwiessbiiinsiniiiteiiitiedeis 12, 21
ae as Se ee wcintenithhiesininsiainsitinieiniaiidinihiniunmabis 2
FD are er enc eheilsiiesniveciseaniiciginistintniuenicsetninniiniel i]
EER 2
RULES AND REGULATIONS
ne 1
29 C.F.R. pt. 1630 app. § 1630.2(j) ................0000000. 18
2D _C. FF. RR. B IGSO.DGMGIE) ..ccrcccccccccccccccesscccceces 17, 20
Federal Rule of Evidence 502 ................ccccssssecesseses 10
Federal Rule of Evidence 701 ...............cccsssccssssscsees 10
Federal Rule of Evidence 702 ........... 2, 13, 21, 23, 24
OTHER AUTHORITIES
EEOC Interpretive Guidance: Section 902
Definition of the Term “.
From EEOC Compliance Manual
[Last Modified Feb. 1, 2000}....................000 passim
Supreme Court Rulle 14. 1(8..........cccccccccoscossoscccscsccess 1
eee
TABLE OF AUTHORITIES
(continued)
Page
MISCELLANEOUS
California Labor Code 139.5...........c.ccceseseseceeeeecesees 22
Dictionary of Occupational Titles (DOT) ........ 3, 8, 13
1
PETITION FOR A WRIT OF CERTIORARI
Petitioner Paul Enright, respectfully prays that a
writ of certiorari issue to review the judgment of the
United States Court of Appeals for the Ninth Circuit in
OPINIONS BELOW
The decision of the United States Court of Appeals
for the Ninth Circuit (App., infra, 3a-4a) is unreported.
The order granting summary judgment by the United
States District Court, Southern District of California
(App., infra, Sa-16a) is unreported. The Opinion of the
Arbitrator under the Collective Bargaining Agreement
between Solar Turbines and the Union (App., infra,
17a-30a) is unreported.
JURISDICTION
The decision of the United States Court of Appeals
for the Ninth Circuit was entered on September 19,
2002. App., infra, 3a-4a. Petitioner filed a timely
petition for rehearing and rehearing en banc on
October 9, 2002. The rehearing petition was denied by
the United States Court of Appeals for the Ninth
Circuit on November 4, 2002. App., infra, la-2a. The
jurisdiction of this Court is invoked under 28 U.S.C. §
1254(1).
STATUTES, REGULATIONS AND EEOC
INTERPRETIVE GUIDANCE INVOLVED
Pursuant to this Court's Rule 14.1(f} the relevant
provisions of the Americans with Disabilities Act, 42
U.S.C. § 12102, et seg., together with relevant
portions of the ADA Regulations 29 U.S.C. § 1630.2,
and EEOC Interpretive Guidance from Section 902
2
Definition of the Term “Disability”, implementing those
statutes, are reproduced at App., infra, 3la-45a.
Federal Rule of Evidence 702 - Testimony by
Experts provides: ,
"If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify
thereto in the form of an opinion or otherwise, if (1)
the testimony is based upon sufficient facts or data,
(2) the testimony is the product of reliable
‘principles and methods, and (3) the witness has
applied the principles and methods reliably to the
facts of the case."
STATEMENT OF THE CASE
The Americans with Disabilities Act of 1990
(“ADA”) prohibits covered employers from
“discriminating” in the terms of employment against a
“qualified individual with a disability,” 42 U.S.C. §
12112(a), ie., “an individual with a disability who,
with or without reasonable accommodation, can
perform the essential functions of the employment
position that such individual holds or desires.” 42
U.S.C. § 12111(8).
This case involves an important question regarding
the application of the ADA for the protection of
disabled individuals in the workplace. This important
question is whether the EEOC Interpretive Guidance
on the Definition of the Term "Disability" February
2000, is valid and should be followed in determining if
an individual is substantially limited in the ability to
engage in work under the ADA. The second question
presented is whether the Federal Rule of Evidence 702
3
was properly applied when it was determined that
Enright’s vocational rehabilitation counselor did not
qualify as an expert witness, despite the fact that he
-had previously testified as a vocational expert. His
report determined Enright was precluded from
approximately 29% of all jobs in the DOT due to his
impairment. Therefore, his report would have assisted
the court in determining whether Enright is
substantially limited in his ability to work under the
ADA. The third question is whether an Arbitrator's
Decision under a Collective Bargaining Agreement is
admissible evidence in an ADA case, where the
Arbitrator exceeded the scope of submission by ruling
on Petitioner's federal statutory rights under the ADA,
and where the Arbitrator was not an impartial
decisionmaker because he was exclusively chosen by
Petitioner's adversaries.
A. Factual Background
Petitioner Paul Enright (“Enright”) began his
employment with Respondent Solar Turbines on April
21, 1997, as a Quality Test Technician (“QTT’).
Starting on or about July 1998, about 14 months after
Enright was hired, Solar Turbines began sending
QTT’s from Dept. 380 [Enright’s Dept.] out to other
areas of the plant to work. On July 6, 1998, Enright’s
supervisor, Mohammed Karbasi (“Karbasi”), requested
that Enright go work out on the production line.
Enright explained to Karbasi that exposure to diesel or
propane fumes as well as other fumes present in this
area would trigger his migraine headaches. Enright
was instructed to obtain a doctor's letter as soon as
possible for documentation. (Court of Appeals
Excerpts of Record 43-45 (“C.A. ER 43-45”).
Following Karbasi’s request for medical
documentation, Enright submitted a medical letter
4
from Dr. Hoagland dated July 8, 1998. This letter
stated as follows: “Paul Enright has a long history of
headaches which are often set off by fumes,
particularly from engine exhaust, painting and
welding. I recommend that he work only in areas
where he will not be exposed to fumes.” C.A. ER 105.
Then, on July 16, 1998, a Employee Physical
Classification Status Form (Form 900) was completed
and initialed by the Solar Turbines Medical Dept. on
behalf of Dr. Donna _ Baytop, Solar Turbine's
Medical Director. This form stated that Enright was to
“Avoid fumes, particularly from engine exhaust,
painting and welding.” C.A. ER 190. Therefore, on or
before July 16, 1998, Solar Turbines started to
accommodate Enright by permitting him to not work
in other areas of the plant where he would be exposed
to fumes. C.A. ER 45.
On December 4, 1998, Enright was informed by his
two supervisors that there was no more work for him
in Dept. 380 and that he would have to go to other
areas of the plant where he would be exposed to
fumes. Enright was given the opportunity to either
wear a respirator mask in the work areas with fumes
or to take a medical layoff. C.A. ER 45-46.
On December 10, 1998, Enright gave Solar
Turbines and the Union a memo _ requesting
reasonable accommodation. C.A. ER 188-189. The
next day, on December 11, 1998, Enright attended a
meeting which was to respond to his request for
reasonable accommodation. In this meeting Enright
was informed that his medical letter from Dr.
Hoagland was now considered to be only a
recommendation. C.A. ER 46. As stated above, Dr.
Baytop had accepted Dr. Hoagland's letter on July 16,
1998, and issued an Employee Physical Classification
i)
Status Form for Enright, which recommended he
"Avoid fumes, particularly from engine exhaust,
painting and welding.” Despite this Form, Enright was
informed that he would no longer be accommodated
and would be sent out to other areas of the plant
where he would be exposed to fumes without a mask,
or could take personal leave, sick leave, or vacation.
C.A. ER 46-47. Enright was also informed at -this_
meeting that if he did not go where he was assigned
he could be terminated. C.A. ER 172 at 269:2-19.
On December 15, 1998, only 5 days after Enright
had requested reasonable accommodation, Lee
Thomas, Enright’s supervisor, gave Enright a verbal
warning (which was put in writing) for lack of
productivity. C.A. ER 47 & 191. Enright was given
little chance to discuss the verbal warning given to
him by Lee Thomas. Enright responded to this verbal
warning in a letter given to Ken McDill, Union Chief
Shop Steward. C.A. ER 162, 192-199.
Enright returned to work on January 4, 1999, from
Christmas break and continued to work up through
January 26, 1999, in his regular working area within
Dept. 380 without further confrontations with Solar
management. Enright also did not complain about
fumes in his work area during this time period-CA.—
ER 161.
On January 27, 1999, Enright was walked out
during the second half of his shift on a medical layoff
due to a revised Physical Classification Status Form
and the fact that Solar Turbines could not guarantee
that there would be no fumes in Enright's work area.
C.A. ER 48. At the time Dr. Baytop issued the revised
Physical Classification Status Form, the only doctor's
letter that Enright had given Solar Turbines was from
Dr. Hoagland. Enright also had never met with, or
6
been examined by Dr. Baytop or any other company
physician. C.A. ER 162. This revised Form stated, "To
work only in areas where there is no exposure to
fumes, particularly from engine exhaust, painting and
welding. Avoidance of fumes does not involve use of
respirator." C.A. ER 200. At the meeting Enright
discussed possible options of accommodation such as
allowing him to step out of the building when fumes :
came into the building or doing software testing in the
adjacent software trailer. Solar Turbines told Enright
the decision had been made. C.A. ER 48.
On or about February 8, 1999, the Local Lodge 389
filed a grievance on Enright's behalf which stated that
Solar Turbines violated provisions of the ADA as well :
as the CBA. C.A. ER 106.
Enright was examined by Dr. Kaye Kilburn on April
19, 1999, and a medical letter dated May 4, 1999,
with supplement was issued which stated: !
“...he [Enright] has found many chemicals and
chemical mixtures trigger headaches. These include
perfume, incense, hair spray, gasoline fumes, paint, 7
diesel exhaust, propane exhaust, welding fumes,
engine exhaust, turbo soap, restroom cleaning
chemicals, new carpet, tar and asphalt fumes,
chimney smoke and charcoal grill fumes.” ... “The
avoidance of chemical triggers is essential to avoid
headaches and disability.” App., infra, 55a; C.A. ER
132.
On December 9, 1999, Enright applied for
vocational rehabilitation services through the State of
California Department of Rehabilitation. Enright was
_subsequently determined to be severely disabled and
approved for an estimated 12 months of rehabilitation
services. App., infra, 57a-58a; C.A. ER 174. These
EE
7
resulting rehabilitation services were addressed in a
State of California Rehabilitation Retraining Contract.
This retraining contract states,
"Mr. Enrights a 42 y/o male who is eligible for
department's services based MIOR, intake, and
Medical review which verifies Dx of multiple
chemical sensitivity which causes severe miagraine
[migraine] headaches that impedes his balance,
coordination, concentration and focus. thus
contraindicating his return to his previous [field of]
employment as an Electronic Technician. Mr.
Enright received his Associates Degree in Electronic
Technology from Cuyamaca College." ... "To re-enter
the competitive labor market he will need to be
retrained in a field that will accommodate his
impairment/impediments.” App., infra, 60a; C.A.
ER 176.
Due to a pending Workers’ Compensation claim,
Enright consulted with Mark Remas, a vocational
rehabilitation counselor, to determine the percentage
of disability which Enright’s impairment would cause
him in the labor market. Subsequently, in September
2000, Mark Remas issued a Vocational Evaluation
Report. This report states that Mark Remas has
previously testified as an expert witness as follows:
“I have previously testified as a vocational expert in
Social Security Administration hearings, Workers’
Compensation Appeals Board actions, Department
of Labor actions, dissolution proceedings and
personal injury litigation;” App., infra, 70a; C.A. ER
207.
This report additionally states:
“Mr. Enright has provided a variety of medical
8
reports, published articles, work environment
analysis data, and has attended interviews with
this counselor.” ... “This information was reviewed
and independently replicated by this counselor to
determine the validity of sorting job classifications
based on medical restrictions. The medical reports
were reviewed and utilized to assess the diagnosis
and restrictions that are applicable in this case.”
App., infra, 65a-66a; C.A. ER 203.
. “Once the data were sorted the number of jobs
that have excessive exposure to fumes, exhaust, or
other contaminants that are injurious to Mr.
Enright were painstakingly tabulated. The results
indicated preclusion from approximately 29% of all
jobs listed in the Dictionary of Occupational Titles.”
App., infra, 67a; C.A. ER 204.
Enright was notified on October 20, 2000, by Local
Lodge 389 that his grievance with Solar Turbines was
to be arbitrated. This was a month after Enright had
filed suit against Local Lodge 389 in the district court
for discrimination and retaliation in violation of the
ADA. C.A. ER 160 & 173.
Enright's Union grievance was arbitrated on
December 11 and 22 of 2000. Enright had no input
into the choosing of the arbitrator. At the time the
Arbitrator was jointly chosen by Solar Turbines and
Local Lodge 389, Enright had an_ adversarial
relationship with both Solar Turbines and Local Lodge
389. This adversarial relationship was due to the fact
that Enright had already filed suit against both of
them in the district court for violations of the ADA.
C.A. ER 160. Subsequently, on March 29, 2001, the
Arbitrator issued a written opinion. App., infra, 17a-
30a; C.A. ER 81-95.
9
B. District Court Proceedings
In September 2000, after obtaining a right to sue
letter from the Equal Opportunity Employment
Commission (‘EEOC’), Enright filed this action
against Solar Turbines in the United States District
Court Southern District of California. The basis for
federal jurisdiction over this complaint is pursuant to
the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§ 12112. App., infra, 5a-6a. Enright alleged, inter alia,
that Solar Turbines had violated the ADA by (1)
denying him reasonable accommodation, and instead,
walking him out on a medical layoff and continuing to
intentionally discriminate against him because of his
disability, and (2) retaliating against him for exercising
his rights to reasonable accommodation. C.A. ER 7-9.
On Nov. 1, 2001, the district court granted
summary judgment to Solar Turbines. App., infra, 5a-
6a. The district court first evaluated Enright’s
argument that he has a physical impairment that
“substantially limits” his ‘major life activity of work.
The district court stated, “To support his argument,
Plaintiff offers six declarations as exhibits. Whether
Plaintiff has raised a genuine issue of material fact
that he is substantially limited in working depends
upon an evaluation of the merits of those exhibits.”
Three of the exhibits consisted of doctors’ letters from
Dr. Hoagland, Dr. Dalessio, and Dr. Kilburn. The
other exhibits were a Vocational Evaluation Report
from Mark Remas, a Severity of Disability
Determination and a Retraining Contract from the
California State Department of Rehabilitation. The
district court evaluated each of the exhibits separately
and summarily determined that, “Plaintiff is not
substantially limited in the major life activity of
working, and that he is, thus, not disabled under the
terms of the ADA.” App., infra, 15a.
10
In regards to Mark Remas’ Vocational
Rehabilitation Report, the district court ruled, “The
Court sustains Defendant’s objections to the
Declaration of Mark Remas, based upon lack of
personal knowledge under Federal Rule of Evidence
502 and improper opinion evidence by a lay person
under Federal Rule of Evidence 701.” App., infra, 13a-
14a. The district court did not address Mark Remas’
qualifications as an expert witness, which included
having “previously testified as a vocational expert in
Social Security Administration hearings, Workers’
Compensation Appeals Board actions, Department of
Labor actions, dissolution proceedings and personal —
injury litigation.” App., infra, 70a; C.A. ER 207.
On the issue of whether the Arbitrator’s written
decision should be admissible as evidence the district
court ruled, “the decision of an arbitrator may be
admitted as evidence and ‘accorded such weight as
the court deems appropriate.’ Alexander v. Gardener-
Denver Co., 94 S.Ct. 1011, 1025 n. 21 (1974); see also
Vargas v. Gromko, 977 F. Supp. 996, 1002 (1997).”
App., infra, 10a. In making this ruling the district
court did not address whether the Arbitrator exceeded
the scope of submission by ruling on Enright’s federal
statutory rights under the ADA, or the fact that the
Arbitrator was exclusively chosen by Enright’s
adversaries.
C. The Ninth Circuit’s Panel Decision
A panel of the Ninth Circuit affirmed. App., infra,
3a-4a. The panel first addressed whether Enright is
substantially limited in his ability to work. The panel
found that, “Enright’s letters from examining
physicians and occupational rehabilitation and
retraining records show some level of impairment, but
they do not show a substantial limitation on his ability
11
to engage in work. See Toyota Motor Mfg., Kentucky,
Inc. v. Williams, 122 S.Ct. 681, 691 (2002)." App.,
infra, 4a.
The panel then ruled that, “the district court
properly determined that Enright's vocational
rehabilitation counselor did not qualify as an expert
witness under Federal Rule of Evidence 702. See
Desrosiers v. Flight Int'l of Fla., 156 F.3d 952, 960-61
(9th Cir. 1998).” App., infra, 4a.
On the issue of the arbitration decision the panel
found that, “Contrary to Enright's contention, the
district court did not err by considering the
arbitrator's decision. See Collings v. Longview Fibre
Co., 63 F.3d 828, 833 n.5 (9th Cir. 1995).” App., infra,
4a.
REASONS FOR GRANTING THE WRIT
The Ninth Circuit decision in this case presents a
recurring question under the ADA. The issue is what
level of impairment constitutes a substantial
limitation on the ability to engage in work and what
standards are to be used to make this determination.
This leads to the question of whether the EEOC
Interpretive Guidance on the Definition of the Term
"Disavility" February 2000, is valid and should be
followed in determining if an _ individual is
substantially limited in the ability to engage in work
under the ADA. Intervention by the Supreme Court is
needed to set clear consistent standards and
guidelines for determining whether an individual is
substantially limited in the ability to work under the
ADA.
12
The Supreme Court has presently left open the
question of whether working is a major life activity.
“Because of the conceptual difficulties inherent in the
argument that working could be a major life activity,
we have been hesitant to hold as much, and we need
not decide this difficult question today.” Toyota Motor
Mfg., Kentucky, Inc. v. Williams, 122 S.Ct. 681, 692
(2002).
Additionally, the Supreme Court has also left open
the question of whether the EEOC regulations and
interpretive guidance 42 U.S.C. § 12102(2) relating to
the definition of the term “disability” are valid. The
Supreme Court stated in Albertson’s, Inc. v.
Kirkingburg, 527 U.S. 555, 563, n. 10, 119 S.Ct. 2162,
144 L.Ed.2d 518 (1999) as follows:
“10. As the parties have not questioned the
regulations and interpretive guidance promulgated
by the EEOC relating to the ADA's definitional
section, 42 U. S. C. § 12102; for the purposes of
this case, we assume, without deciding, that such
regulations are valid, and we have no occasion to
decide what level of deference, if any, they are due,
see Sutton v. United Airlines, Inc., ante, at 479-480.”
[527 U.S, 479-480].
Therefore, intervention by the Supreme Court on
the above issues will give the lower courts clear
consistent standards and guidelines for determining
whether an individual is substantially limited in the
ability to work. Without Supreme Court intervention
the lower courts can apply arbitrary standards and
disabled individuals will not receive the intended
protections afforded by the ADA.
The Ninth Circuit holding that Mark Remas,
Enright’s vocational rehabilitation counselor, did not
13
qualify as an expert witness under Federal Rule of
Evidence 702, also merits intervention by the
Supreme Court. The question is whether the Federal
Rule of Evidence 702 was properly applied in
determining that Mr. Enright's _ vocational
rehabilitation counselor did not qualify as an expert
witness, despite the fact that he has previously
testified as a vocational expert, and does his report
which concluded that Mr. Enright was precluded from
approximately 29% of all jobs in the Dictionary of
Occupational Titles (DOT) due to his impairment,
create a triable issue of material fact as to whether Mr.
Enright is disabled under the ADA?
Mark Remas, Enright’s vocational rehabilitation
counselor, has “previously testified as a vocational
expert in Social Security Administration hearings,
Workers’ Compensation Appeals Board actions,
Department of Labor actions, dissolution proceedings
and personal injury litigation;” App., infra, 70a; C.A.
ER 207. If appeals courts are allowed to arbitrarily
eliminate key evidence that would assist the court in
determining whether an_individual’s impairment
substantially limits their ability to work, then the ADA
will be of no value in protecting those individuals in
the workplace. This Court should grant review to
resolve this misapplication of the Federal Rule of
Evidence 702 and clarify the standards by which this
rule is to be applied.
The Ninth Circuit ruled that the district court did
not err ‘by considering the arbitrator’s decision. The
question involved with this ruling is whether
arbitrator's decision under a Collective Bargaining
Agreement is admissible evidence in an ADA case,
where the arbitrator exceeded the scope of submission
by ruling on Petitioner's federal statutory rights under
14
the ADA, and where the arbitrator was not an
impartial decisionmaker because he was exclusively
chosen by Petitioner's adversaries. This Ninth Circuit
ruling is in direct conflict with the Supreme Court
decisions in Teachers v. Hudson, 475 U.S. 292, 307-
308 (1986) and Alexander v. Gardner-Denver Co., 415
U.S. 36, 53-54 (1974). Thus, intervention by the
Supreme Court is necessary to resolve this conflict.
I. THE NINTH CIRCUIT’S DECISION DISREGARDS
EEOC INTERPRETIVE GUIDANCE ON THE
DEFINITION OF THE TERM “DISABLITITY”
The Ninth Circuit panel held that, “Enright's letters
from examining physicians and occupational
rehabilitation and retraining records show some level
of impairment, but they do not show a substantial
limitation on his ability to engage in work." App., infra,
4a. This decision by the panel is contrary to the
EEOC’s interpretive guidance presented in its
Compliance Manual under Section 902 Definition of
the Term “Disability” which was last modified
February 1, 2000. App., infra, 35a-45a. If this EEOC
interpretive guidance had been properly considered
the panel would have concluded that Enright is
substantially limited in his ability to work.
The panel characterized Enright's impairment as
"migraines caused by exposure to chemical fumes."
App., infra, 4a. This statement oversimplifies Enright's
impairment, and could therefore lead to a
misunderstanding of the magnitude of his impairment
in relation to occupations that he can not perform due
to exposure to fumes and odors that trigger migraine
headaches. Enright’s medical letter from Dr. Kaye
Kilburn (App., infra, 46a-56a; C.A. ER 125-132) lists
the fumes and odors that he should avoid to prevent
15
triggering of migraine headaches, they are as follows
(with appendix references as to where they can be
found in his medical letter):
(1) Cigarette Smoke (46a)
(2) Diesel Engine Exhaust (46a)
(3) Gasoline Engine Exhaust (46a)
(4) Propane Exhaust (55a)
(5) Engine Exhaust (55a)
-(6) Insecticides (53a)
(7) Perfume (55a)
(8) Incense (55a)
(9) Hair Spray (5Sa)
(10) Gasoline Fumes (55a)
(11) Paint (55a)
(12) Welding Fumes (55a)
(13) Turbo Soap (55a)
(14) Restroom Cleaning Chemicals (55a)
(15) New Carpeting (55a)
(16) Tar and Asphalt Fumes (55a)
(17) Chimney Smoke (55a)
(18) Charcoal Grill Fumes (55a)
(19) Combustion Products (55a)
Under the heading " isabili
limitation", Dr. Kaye Kilburn in his letter states, "The
avoidance of chemical triggers is essential to avoid
headaches and disability." App., infra, 55a. Therefore,
it is clear that Enright must avoid the above list of
chemical triggers and thus, is excluded from a class of
jobs or a broad range of jobs in various classes. For
example it is clear that Enright would be excluded
from the following jobs because of the specific
exposure restrictions above:
(1) Diesel Equipment Operator — (2) Diesel Engine
Exhaust
:
’
;
16
(2) Diesel Engine Mechanic - (2) Diesel Engine
Exhaust
(3) Bus Driver - (5) Engine Exhaust
(4) Truck Driver - (5) Engine Exhaust
(5) Taxi Driver - (5) Engine Exhaust
(6) Parking Lot Attendant - (3) Gasoline Engine
Exhaust
(7) Auto Mechanic - (3) Gasoline Engine Exhaust
(8) Pest Control Worker - (6) Insecticides
(9) Gas Station Attendant - (10) Gasoline Fumes
(10) Painter - (11) Paint 2
(11) Welder - (12) Welding Fumes
(12) Carpet Installer - (15) New Carpet
(13) Street Paver - (16) Tar and Asphalt ,
(14) Fire Fighter - (17) Chimney Smoke
This is just a small sample of the jobs that Enright
is excluded from due to his impairment. Additionally,
Enright must avoid perfume, as listed above, and
therefore, would be excluded from any jobs where he |
would come in contact with the general public and
could be exposed to perfume. d
The EEOC offers the following interpretive guidance
when dealing with cases such as_ Enright's,
"Furthermore, in cases where it is clear that an ;
individual is excluded from a class of jobs or a broad
range of jobs in various classes, only minimal evidence
will be required." App., infra, 43a. Additionally, the
EEOC interpretive guidance states,
“The Commission has provided regulatory
guidance for determining whether an impairment
substantially limits an individual in the major life
activity of working. The regulation states, (3) With
respect to the major life activity of working -- (i) The
term substantially limits means _§ significantly
restricted in the ability to perform either a class of
17
jobs or a broad range of jobs in various classes as
compared to the average person having comparable
training, skills and abilities. . .." 29 C. F. R. §
1630.2(j)(3)(i). App., infra, 37a.
Therefore, per the medical letter from Dr. Kaye
Kilburn which lists the fumes and odors that Enright
should avoid to prevent triggering of migraine
headaches and the EEOC interpretive guidance and
regulations above, it should be clear that Enright's
impairment substantially limits his ability to work.
The EEOC has also given interpretive guidance in
the form of general examples of individuals who have
specific types of impairments that have caused them
to be substantially limited in working. Some of these
examples, which are similar to Enright's case, can be
_ a valuable resource in guiding the courts in their
determination of whether an impairment substantially
limits an individual's ability to work. The EEOC gives
the following example of interpretive guidance:
"CP has a hearing impairment that only mildly
affects his ability to hear. The impairment, however,
makes CP extremely sensitive to very loud noises.
CP experiences severe pain when he is exposed to
loud noises for more than a brief period. Because of
this sensitivity, CP cannot work in environments
where noise levels routinely exceed a certain decibel
level. As a result, R refused to hire CP for a welder's
position. Further, CP could not work in carpentry
or auto repair shops and could not be a heavy
equipment operator, a demolitions expert, or a
member of an airport ground crew. CP's
impairment, therefore, prevents CP from working in
a broad range of jobs in various classes.
Accordingly, CP has an _ impairment _ that
substantially limits his ability to work." App. 41a.
18
This example is quite similar to Enright’s case, in
the example case, an individual has an impairment
that makes him extremely sensitive to loud noises and
therefore, he cannot work in environments where
noise levels routinely exceed a certain decibel level.
Thus, this individual's impairment substantially limits
his ability to work. Whereas, Enright's impairment
requires his avoidance of many fumes and odors to
prevent triggering of migraine headaches and
therefore, he cannot work in environments where he
will be exposed to these fumes and odors. As listed
above, Enright could not work in the following jobs:
diesel equipment operator, diesel mechanic, bus
driver, truck driver, taxi driver, parking lot attendant,
auto mechanic, pest control worker, gas station
attendant, painter, welder, carpet installer, street
paver, and fire fighter. Thus, Enright would ‘also be
substantially limited in his ability to work. —
Additionally, The EEOC gives the following example
of interpretive guidance:
"Impairments that preclude an individual from
performing a broad range of jobs in various classes
also may substantially limit the major life activity of
working. For example, an individual could be
substantially limited in working if (s)he has a severe
allergy to a substance found in many high-rise
office buildings. If the allergy prevents. the
individual from working in many of the high-rise
office buildings in the geographical area to which
the individual has reasonable access,. then the
individual is substantially limited in working. This
is so because a great number of positions within
many classes of jobs would be performed in those
buildings. 29 C.F.R. pt. 1630 app. § 1630.2{j).”
App., infra, 40a.
19
This example is also quite similar to Enright’s case,
in the example case, an individual has a severe allergy
to substances found in many high-rise office
buildings, whereas Enright, to prevent triggering of
migraine headaches must avoid many fumes and
odors which are present in many buildings and work
environments. Therefore, Enright would also be
substantially limited in working because a great
number of positions within many classes of jobs would
be performed in those buildings and work
environme, ts.
Enright provided evidence of his impairment to the
district court which included a "Severity of Disability
Determination" and a Retraining Contract from the
State of California Department of Rehabilitation. App.,
infra, S7a-64a; C.A. ER 174-178. The "Severity of
Disability Determination" categorizes Enright as
severely disabled and therefore, qualified him for an
estimated 12 months of rehabilitation services. App.,
infra, S7a-58a. These resulting rehabilitation services
were addressed in a Department of Rehabilitation
Retraining Contract. This Retraining Contract states,
"Mr. Enrights a 42 y/o male who is- eligible for
department's services based MIOR, intake, and
Medical review which verifies Dx of multiple
chemical sensitivity which causes severe miagraine
[migraine] headaches that impedes his balance,
coordination, concentration and focus thus
contraindicating his return to his previous [field of]
employment as an Electronic Technician. Mr.
Enright received his Associates Degree in Electronic
Technology from Cuyamaca College." . . . "To re-
enter the competitive labor market he will need to
be retrained in a field that will accommodate his
impairment/impediments." App., infra, 60a.
20
Therefore, the State of California Department of
Rehabilitation determined that Enright would no
longer be able to return to his previous field of
employment as an Electronic Technician, for which he
had been trained, because of his impairment. Thus,
he would need to be retrained to re-enter the
competitive labor market in a field that would
accommodate his impairment. In a similar case to
Enright's, the EEOC gives the following example of
interpretive guidance:
"An assessment of whether an impairment
substantially limits an individual's ability to work
focuses on whether the individual is significantly
restricted in the ability to perform a class of jobs or
a broad range of jobs in various classes as
compared to the average person having comparable
training, skills, and abilities. 29 C.F.R. §
1630.2(j)(3)(i). For example, suppose that an
individual has an impairment that interferes with
his/her ability to work in the class of clerical jobs.
The individual is substantially limited in working if
(s)he is significantly restricted in performing clerical
work as compared to the average person having
comparable clerical skills. Thus, if the individual
has clerical skills and training and the impairment
prevents him/her from performing many of the
clerical jobs that the average person with
comparable clerical skills can perform, then the
individual is substantially limited in working. App.,
infra, 43a-44a.
This example is quite similar to Enright’s case, in
the example case, an individual has an impairment
that significantly restricts him/her from performing
clerical work as compared to the average person with
comparable skills and therefore, is substantially
limited in working. Whereas, Enright has an
21
impairment which Significantly restricts him from
performing Electronic Technician work (he can no
longer return to this field of employment due to his
impairment) as compared to the average person with
comparable skills and therefore, is substantially
limited in working.
Thus, contrary to the Ninth Circuit’s decision, and
based on the EEOC interpretive guidance Section 902
Definition of the Term “Disability”, Enright's
impairment substantially limits his ability to engage in
work and therefore, he has a "disability” under the
ADA. See 42 U.S.C. § 12102 (2). App., infra, 3la. This
Court should grant review to correct this erroneous
decision of the Ninth Circuit and clarify the standards
and guidelines for determining whether an individual
is substantially limited in the ability to work.
The Ninth Circuit held that, “Enright's vocational
rehabilitation counselor did not qualify as an expert
witness under Federal Rule of Evidence 702." App.,
infra, 4a. This decision overlooked the numerous
qualifications of Mark Remas, Enright's Vocational
Rehabilitation Counselor, which were listed in his
Vocational Evaluation Report on Mr. Enright.
Federal Rule of Evidence 702 states:
"If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify
22
thereto in the form of an opinion or otherwise, if (1)
the testimony is based upon sufficient facts or data,
(2) the testimony is the product of reliable
principles and methods, and (3) the witness has
applied the principles and methods reliably to the
facts of the case."
Mark Remas' Vocational Evaluation Report on Mr.
Enright listed his qualifications as an expert witness
as follows:
"I, Mark Remas, M.A., C.R.C. declare and state:
1. My name is Mark Remas, and I am a certified
vocational rehabilitation counselor;
2. I am the owner of a vocational rehabilitation
counseling firm and function as the senior counselor
and supervisor in addition to my personal work
activity as a_ certified vocational rehabilitation
counselor.
3. I have been certified (as of 1989) as a
rehabilitation counselor by the National Commission
on Rehabilitation Counselors. I have also been
designated as a vocational expert for the Social
Security Administration, Department of Hearings and
Appeals.
4. My current practice consists of providing
vocational rehabilitation services to injured workers
under the California Labor Code 139.5 which includes
preparation of job descriptions and job analyses as
well as vocational exploration and job placement
assistance. Other duties include preparation of labor
market surveys, coordinating and commenting on
residual functional capacity, wage earning capacity
studies, personal injury litigation, and testimony for
the Social Security Administration, Department of
Hearings and Appeals.
5. The preparation of a job analysis requires visual
23
inspection of the job site, and visual observation of the
performance of a particular job, and requires an
outline of the job requirements, physical demands, job
tasks and responsibilities, and equipment and work
aids that are used on the job. Preparation of a job
analysis also requires quantification of the specific
requirements during the day of lifting, stooping,
bending, carrying, etc. as well as the particular
weights that are lifte? and carried at work during the
day;
6. I have been preparing labor market surveys in
San Diego since 1982;
7. 1 consider myself to be a vocational expert on the
San Diego labor market. That is based in part on my
years of experience and the time I have spend in San.
Diego contacting and talking to employees and
employers, determining labor market needs and
wages, preparing job analyses and _ position
descriptions for specific jobs, and assisting injured
workers in returning to suitable gainful employment;
8. I have previously testified as a vocational expert
in Social Security Administration hearings, Workers’
Compensation Appeals Board actions, Department of
Labor actions, dissolution proceedings and personal
injury litigation; . . .” App., infra, 69a-70a; C.A. ER
206-207.
Therefore, contrary to the Ninth Circuit’s decision,
Mark Remas has the required knowledge, skills,
experience, training, and education, as stated above,
that should qualify him as an expert witness under
Federal Rule of Evidence 702.
Additionally, Mark Remas states in this report:
“9. I personally interviewed Mr. Enright and
evaluated the information he provided including
medical reports, and data derived from the O*NET and
24
other US government resources.
10. I replicated the study steps taken by Mr.
Enright and concur with the evaluation of degree of
disability of 29% of all occupations based on
quantification of medical restrictions as a result of
multiple chemical sensitivity." App., infra, 70a.
Therefore, Mark Remas' Vocational Evaluation
Report concluded that Enright had a degree of
disability that precluded him from 29% of all
occupations and would have assisted the panel in
determining that Enright is substantially limited in his
ability to work. As stated above, Mark Remas
evaluated medical reports and utilized US government
data and resources in his Vocational Evaluation
Report. Thus, the report should also, meet the
additional requirements of Federal Rule of Evidence
702 as stated above. This Court should grant review to
resolve this misapplication of the Federal Rule of
Evidence 702 and clarify the standards by which this
rule is to be applied.
Il. THE NINTH CIRCUIT’S RULING ALLOWING
CONSIDERATION OF THE ARBITRATION
DECISION IS IN DIRECT CONFLICT WITH
SUPREME COURT DECISIONS
The Ninth Circuit concluded that, "the district court
did not err by considering the arbitrator's decision."
App., infra, 4a. This ruling does not take into account
that the Arbitrator exceeded the scope of submission
by ruling on Enright’s federal statutory rights under
the ADA, and that the Arbitrator was not an impartial
decisionmaker because he was exclusively chosen by
Enright’s adversaries. Therefore, this ruling is in direct
conflict with the Supreme Court decisions in
Alexander v. Gardner-Denver Co., 415 U.S. 36, 53-54
(1974) and Teachers v. Hudson, 475 U.S. 292, 307-
25
308 (1986).
The Arbitrator's decision should not have been
considered by the district court because the Arbitrator
exceeded the scope of submission by ruling on
Enright's federal siatutory rights under the ADA. The
district court stated in its decision that,
“The Arbitrator concluded that Plaintiff's
condition, Multiple Chemical Sensitivity, does not
constitute a disability within the meaning of the
ADA. (SUF No. 65; Emer Decl., Ex. 3 at 82.) The
Arbitrator further found that Plaintiff was not
“qualified” as defined by the ADA (SUF No. 66), and
could not be "reasonably accommodated" within the
meaning of the ADA. (SUF No. 67.)” App., infra, 9a.
(Also see the Opinion of the Arbitrator at App.,
infra, 17a-30a).
The Supreme Court has held that an arbitrator
interpreting a collective bargaining agreement "has
authority to resolve only questions of contractual
rights” and if he rules on federal statutory rights he
has exceeded the scope of submission and the award
will not be enforced. Alexander v. Gardner-Denver Co.,
415 U.S. 36, 53-54 (1974).
Therefore, since the Arbitrator ruled on Enright’s
federal statutory rights his decision should not be
enforced and should not have been considered by the
district court. Thus, the Ninth Circuit’s decision to
allow consideration of the Arbitrator’s decision is in
direct conflict with the above Supreme Court decision.
This Court should grant review to resolve this conflict.
Additionally, the Arbitrator's decision should not
have been considered by the district court because the
Arbitrator was not an impartial decisionmaker, due to
26
the fact he was exclusively chosen by Enright’s
adversaries. Enright had no input in choosing the
arbitrator. The Arbitrator was chosen jointly by Local
Lodge 389 and Solar Turbines. At the time the
Arbitrator was chosen, Enright had an adversarial
relationship with both Solar Turbines and Local Lodge
389 because he had already filed suit against both of
them in the district court for violations of the ADA.
C.A. ER 160.
The Supreme Court case of Teachers v. Hudson,
475 U.S. at 307-308 (1986), presents a similar
situation. The Court held that because the union had
unrestricted choice of arbitrators from a state list the
arbitrator was not an impartial decisionmaker for
resolving conflicts between the union and _ its
nonmembers. Based on this Supreme Court decision
the Arbitrator in Enright's case, who was exclusively
chosen by his joint adversaries, was not an impartial
decisionmaker. Thus, the Arbitration decision should
not have been considered by the district court.
Therefore, the Ninth Circuit’s decision to allow
consideration of the Arbitrator’s decision is in direct
conflict with the above Supreme Court decisions and
this Court should grant review to resolve these
conflicts.
8 0 —_
27
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted,
Paul Enright
1194 Greenfield Dr.
El Cajon, CA 92021
Home (619) 447-4194
Pager (619) 682-2886
Pro Se Petitioner
January 27, 2003
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL ENRIGHT, Plaintiff-Appellant,
v.
SOLAR TURBINES, INC., Defendant-Appellee.
No. 01-57116
Appeal from the United States District Court
For the Southern District of California;
Napoleon A. Jones, Jr., District Judge,
Presiding. D.C. No. 00-CV-1842-NAJ
[Filed Nov. 4, 2002]
Before: HUG, O’'SCANNLAIN and TASHIMA, Circuit
Judges.
The panel has voted to deny appellant's petition for
panel rehearing. Judges O'Scannlain and Tashima
vote to deny the petition for rehearing en banc, and
Judge Hug so recommends.
The full court has been advised of the petition for
rehearing en bane and no judge has requested a vote
on whether to rehear the matter en banc. See Fed. R.
App. P. 35.
The petition for panel rehearing and the petition for
rehearing en banc are denied.
eae
appeal.
3a
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL ENRIGHT, Plaintiff-Appellant,
Vv.
SOLAR TURBINES, INC., Defendant-Appellee.
No. 01-57116
Appeal from the United States District Court
For the Southern District of California;
Napoleon A. Jones, Jr., District Judge,
Presiding. D.C. No. 00-CV-1842-NAJ
Submitted Sep. 9, 2002**
Filed Sep. 19, 2002
MEMORANDUM*
Before: HUG, O'SCANNLAIN and TASHIMA, Circuit
Judges.
Paul Enright appeals pro se the district court's
* This disposition is not appropriate for publication
and may not be cited to or by the courts of this circuit
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously finds this case suitable for
decision without oral argument. See Fed. R. App. P.
34(a)(2).
4a
summary judgment order dismissing his claim under
the Americans with Disabilities Act ("ADA") against
his former employer. We have jurisdiction pursuant to
28 U.S.C. § 1291. We review de novo the district
court's grant of summary judgment, Humphrey ov.
Mem’ Hosps. Assoc., 239 F.3d 1128, 1133 (9th Cir.
2001), and we affirm.
Enright contends the district court erred by finding
he was not substantially limited in a major life activity
due to migraines caused by exposure to chemical
fumes. See 42 U.S.C. § 12102 (2). Enright's letters
from examining physicians and occupational
rehabilitation and retraining records show some level
of impairment, but they do not show a substantial
limitation on his ability to engage in work. See Toyota
Motor Mfg., Kentucky, Inc. v. Williams, 122 S.Ct. 681,
691 (2002). Further the district court properly
determined that Enright's vocational rehabilitation
counselor did not qualify as an expert witness under
Federal Rule of Evidence 702. See Desrosiers v. Flight
Int'l of Fla., 156 F.3d 952, 960-61 (9th Cir. 1998).
Contrary to Enright's contention, the district court
did not err by considering the arbitrator's decision.
See Collings v. Longview Fibre Co., 63 F.3d 828, 833
n.S (9th Cir. 1995). Enright's contention that the
district court improperly denied oral argument is
without merit because Enright does not show
resulting prejudice. See Partridge y. Reich, 141 F.3d
920, 926 (9th Cir. 1998).
AFFIRMED.
5a
APPENDIX C
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
PAUL ENRIGHT, Plaintiff,
v.
SOLAR TURBINES, INC., Defendant.
No. 00-CV-1842-NAJ
ORDER GRANTING SOLAR TURBINES’
MOTION FOR SUMMARY JUDGMENT
[Filed Nov. 1, 2001]
INTRODUCTION
A. Procedural Background
Plaintiff Paul Enright ("Plaintiff") filed a complaint
on September 13, 2000 alleging a violation of the
Americans with Disability Act ("ADA"), 42 U.S.C. §
12112. Plaintiff claims that Defendant Solar Turbines,
Inc. ("Defendant") discriminated against him on the
basis of his disability when it placed him on medical
layoff in January, 1999. (Compl. 4 28.)
Plaintiff filed a charge with the Equal Employment
Opportunity Commission ("EEOC") on February 8,
1999, within 180 days of Defendant's alleged
discriminatory practices. (Compl. ¥ 3-4). This action
was brought within 90 days of the date Plaintiff
6a
received a "Right to Sue" letter. (Compl. ¥ 4) On June
26, 2000, the EEOC dismissed the case because it
was “unable to conclude that the information obtained
establishes violations of the statutes. " (Declaration of
Jan Sutton ("Sutton Decl") at Ex. 5.) On May 17,
2001, Defendant filed a Motion for Summary
Judgment, or, in the Alternative for Summary
Adjudication of Claims. For the reasons set forth
below, Defendant's Motion for Summary Judgment is
GRANTED.
B. Factual Background
Plaintiff was hired by Defendant on April 21, 1997, as
a Quality Test Technician ("QTT’). (Compl. 4 11) The
job duties of a QTT include testing various products
produced by Defendant, in order to ensure product
performance. (Decl. of William Emer ("Emer Decl."),
Ex. 1 at 6.) QTTs are exposed to dust, exhaust fumes,
chemical fumes, paint fumes, and metal fumes while
performing their duties. (Statement of Uncontroverted
Fact ("SUF") No. 3; Declaration of Jan Sutton ("Sutton
Decl.") at Ex. 1). The QTTs are based in Department
380 at Defendant’s Kearny Mesa facility. (SUF No. 1).
The products tested by QTTS are located throughout
the Kearny Mesa facility, including Department 370
and the Paint Shop. (SUF No. 4).
During Plaintiffe job interview. Department 380
supervisor Lee Thomas informed Plaintiff that QTTS
work throughout the facility, including Department
379 and the Paint Shop. (SUF No. 8.) Plaintiff did not
voice any objection during the interview about being
required to work throughout the facility. (SUF No. 9.)
Plaintiff received a tour of the facility, including
Department 379 and the Paint Shop, while the facility
was in normal operation. (SUF Nos. 10-12.) Plaintiff
did not state during the interview or on his April 11,
7a
1997 Employee Medical Record that he was bothered
by fumes or chemical substances, or that he had a
history of migraine headaches. (SUF No. 13-4.) In fact,
Plaintiff had experienced headaches beginning in
1996, and consulted his physician, Dr. Daniel
Hoagland, M.D., about the headaches in May 1996.
(SUF Nos. 16-18; Pl.'s Statement of Genuine Issues at
5.)
After Plaintiff was hired, he told his supervisor, Mr.
Mohammed Karbasi, that his migraine headaches
were triggered by fumes, and that he would not be
able to work in Department 379 because he got
headaches in this area. (SUF No. 21-22; Pl.’s
Statement of Genuine Issues at 6.) Defendant told
Plaintiff to obtain a doctor's letter as soon as possible
to document his medical restrictions. (Compl. ¥ 13.)
Plaintiff provided a letter from his physician, Dr.
Hoagland, stating "I recommended that [Plaintiff] work
only in areas where he will not be exposed to fumes."
(Sutton Decl. at Ex. 3.) Plaintiffs migraine headaches
did not interfere with his ability to perform his job,
and Plaintiff never missed a day of work due to his
headaches until he was placed on medical layoff on
January 27, 1999. (SUF No. 28; Pl.'s Statement of
Genuine Issues at 8.)
Plaintiff has been diagnosed with a disability called
Multiple Chemical Sensitivity, which restricts his
ability to work near dust, fumes, and smoke. (Emer
Decl., Ex. 3 at 82.) Fumes are present in Department
379, Department 380, the Paint Shop, and the
assembly area. (SUF Nos. 37-41.) Plaintiff was also
exposed to fumes when he walked from the parking lot
to Department 380. (SUF No. 35.) Despite the fact that
fumes are present in Department 380 (SUF No. 38),
Plaintiff states that he "would have been able to
continue working" in Department 380 "for an
liceeneiiaeiiiiaiaiaiiitaiitesiiastal
8a
indefinite period of time."! (Pl.’s Statement of Genuine
Issues at 11.)
Plaintiff worked in the software trailer for
approximately three to four weeks to become familiar
with software testing procedures. (SUF No. 44.) It
takes a minimum of six months to a year for a QTT to
become fully proficient in software testing. (Emer
Decl., Ex 1 at 49-50.) Though the software trailer was
air conditioned, fumes were present in the software
trailer. (SUF No. 43; Pl.'s Statement of Genuine Issues
at 12.) Plaintiff experienced headaches for some of the
time while in the software trailer. (SUF No. 46.)
Plaintiff met with representatives from Defendant
International Association of Machinists & Aerospace
Workers Union Local Lodge 389 ("Local Union") on
December 7, 1998 to discuss the options available to
him. On January 27, 1999, pursuant to a Letter of
Understanding between Defendant and the Local
Union, Defendant advised Plaintiff that he was being
placed on medical layoff. (SUF No. 52.)
The Local Union filed a grievance on Plaintiff's
behalf on February 6, 1999, alleging that Plaintiff's
medical layoff violated the Collective Bargaining
Agreement and the ADA. (SUF No. 58.) The Grievance
proceeded to arbitration, and a hearing was held on
December 11 and 22, 2000 in San Diego, California,
before Arbitrator Joseph Gentile. (SUF No. 59.)
Plaintiff attended the hearing, and was an active
participant in presenting his side of the case. (SUF No.
60.)
' This statement directly contradicts Plaintiffs
testimony during the arbitration hearing, in which he
stated that he did not believe he could work in
Department 380 "because of the exposure to exhaust."
(Emer Decl., Ex. 1 at 42.)
9a
The Arbitrator issued a written decision on March
29, 2001, finding that Defendant did not violate the
Collective Bargaining Agreement or unlawfully
discriminate against Plaintiff when it (1) placed him on
medical layoff on or about January 27, 1999, and (2)
failed to recall him thereafter. (SUF No. 64; Emer
Decl., Ex. 3 at 85). The Arbitrator concluded that
Plaintiffs condition, Multiple Chemical Sensitivity,
does not constitute a disability within the meaning of
the ADA. (SUF No. 65; Emer Decl., Ex. 3 at 82.) The
Arbitrator further found that Plaintiff was not
"qualified" as defined by the ADA (SUF No. 66), and
could not be "reasonably accommodated" within the
meaning of the ADA. (SUF No. 67.)
DISCUSSION
A. Standard of Law for Summary Judgment
Summary judgment is appropriate when there is no
genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. FED. R. CIV.
P. 56(c). The party seeking summary judgment always
bears the initial responsibility of identifying those
portions of "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with
the affidavits, if any, which it believes demonstrates
the absence of a genuine issue of material fact." Id.;
Celotex v. Catrett, 477 U.S. 317, 323 (1986). To the
extent the moving party fails to satisfy this initial
burden of production, summary judgment must be
denied. See Henry v. Gill Industries, Inc., 983 F.2d
943, 949-50 (9th Cir. 1993).
If, however, the moving party makes the initial
showing, the burden then shifts to the nonmoving
party to demonstrate that summary judgment is not
appropriate. Celotex, 477 U.S. at 324. To make such a
showing, "the nonmoving party must go beyond the
10a
pleadings and... designate specific facts showing
that there is a genuine issue for trial." FED. R. CIV. P.
56(e); Celotex, 477 U.S. at 324. A dispute is "genuine"
only if "the evidence is such that a reasonable jury
could return a verdict for the nonmoving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
At the summary judgment Stage, it is not the
function of the judge to weigh the evidence or make
credibility determinations. Anderson 477 U.S. at 255.
Rather, the judge should simply decide whether the
evidence demonstrates a genuine factual dispute for
trial. Id. at 250-251. When making such a
determination, "the evidence of the non-movant is to
be believed, and all justifiable inferences are to be
drawn in [its] favor." Id. at 255.
etme
B. Arbitrator's Decision
Plaintiff argues that the Arbitrator's written
decision should not be admissible as evidence to this
Court. (P1.'s P. & A. at 7.) However, the decision of an
arbitrator may be admitted as evidence and "accorded
such weight as the court deems appropriate."
Alexander v. er-Denver Co., 94 S.Ct. 1011, 1025
n. 21 (1974); see also Vargas v. Gromko, 977 F. Supp.
996, 1002 (1997). In this case, the Arbitrator held a
full and fair hearing on the merits on Plaintiffs case,
and Plaintiff was an "active participant in presenting
his side of the case." (Emer Decl., Ex. 3 at | 4). The
Arbitrator issued a detailed fifteen-page decision with
thorough factual and legal analysis. The Court deems
the Arbitrator's decision to be admissible evidence.
C. ADA Claim
Plaintiff argues that Defendant’s actions constitute
a violation of the ADA, 42 U.S.C. § 11211(8). Under
lla
the ADA, as it applies to employment, a "qualified
individual" with a disability is one "who, with or
without reasonable accommodation; can perform the
essential functions of the employment position that
such individual holds or desires." Id.
1. Prima Facie Case
To prevail in an employment termination case, the
plaintiff must show "(I) that [he] is a disabled person
within the meaning of the ADA; (2) that fhe] is
qualified .. with or without reasonable
accommodation ... to perform the essential functions
of the job; and (3) that the employer terminated [him]
because of fhis] disability." Broussard v. Univ. of
California at Berkeley, 192 F .3d 1252, 1255-56 (9th
Cir. 1999); see Kennedy v. Applause, Inc., 90 F.3d
1477, 1481 (9th Cir. 1996) (citation and footnote
omitted); ADA, § 102(a), 42 U.S.C.A. § 12112(a).
a. Was Plaintiff a Disabled Person within the Meaning
of the ADA?
(i) Whether There Was a Disability
"In order to lay claim to the protections of the ADA,
[the plaintiff] must first demonstrate that fhe] is
disabled within the meaning of the Act." Thompson v.
Holy Family Hospital, 121 F.3d 537, 539 (9th Cir.
1997). Here, Plaintiff claims that he is disabled under
the definition set forth in 42 U.S.C. § 12102(2)(C) - to
be regarded as having a physical impairment that
substantially limits a major life activity. 42 U.S.C. §
12102(2)(C). The Interpretive Guidelines of the EEOC,
regulations mandated by the ADA to assist with the
implementation of the federal legislation, consider
“working” to be one of the "major life activities"
covered by the ADA. See 29 C.F.R. § 1620.2(a); 29
_C.F.R. Part 1630, App. § 29 C.F.R. § 1630.2(i) (1996).
EEN ee
12a
Plaintiff argues that he has a physical impairment
that "substantially limits" his major life activity of
working. To establish such a limitation in the major
life activity. of working, EEOC regulations require that
a plaintiff must demonstrate that he is "significantly
restricted in the ability to perform either a class of
jobs or a broad range of jobs in various classes as
compared to the average person having comparable
training, skills and abilities." 29 CFR. §
1630.2(j)(3)(i). The "inability to perform a single,
particular job does not constitute a substantial
limitation in the major life activity of working.” Id.
To support his argument, Plaintiff offers six
declarations as exhibits. Whether Plaintiff has raised a
genuine issue of material fact that he is substantially
limited in working depends upon an evaluation of the
merits of those exhibits.
(a) In a July 8, 1998 letter, Plaintiffs personal
physician. Dr. Hoagland, stated that Plaintiff "has a
long history of headaches which are often set off by
fumes...I recommend that he work only in areas where
he will not be exposed to fumes." (Sutton Decl. at Ex.
3.) Plaintiff contends that Dr. Hoagland's letter
restricts him from working in a class of jobs; Plaintiff
provides a list of examples, including painting,
welding, auto mechanic, truck mechanic, etc. (Pl.'s P.
& A. at 18.) However, the Court will not accept
Plaintiffs conclusory determinations as proof of
"substantial limitations." Dr. Hoagland's letter makes
a mere recommendation; it does not demonstrate how
Plaintiffs condition would preclude Plaintiff from
working in an entire class of jobs.
(b) Dr. Donald J. Dalessio wrote a letter
regarding Plaintiff's condition based on a January 6,
1999 visit. Dr. Dalessio stated that "I believe that the
patient is disabled related to multiple chemical
sensitivity-producing headaches as I have outlined."
l3a
(Emer Decl. Ex. 5 at 2.) Dr. Dalessio did not indicate
whether he diagnosed Plaintiff as "disabled" within the
confines of the ADA definition, and did not
demonstrate how Plaintiffs condition precludes him
from a broad class of jobs.
(c) After conducting a thorough examination of
Plaintiff, Dr. Kaye H. Kilburn stated that "It is my
expert opinion that the observations of triggering
{headaches} by challenge with automobile exhaust
exposure...justify the conclusion that a proof has been
demonstrated." (Kilburn Decl., Ex. 1 at I.)? Under the
heading "Extent of disability and work limitation," Dr.
Kilburn concluded that "The avoidance of chemical
triggers is essential to avoid headaches and disability."
fld.) However, Dr. Kilburn's determination that the
headaches are triggered by exhaust does not address
the crucial issue of Plaintiffs ability or inability to
work in a broad class of jobs, and his statement fails
to demonstrate that Plaintiff is disabled under the
ADA.
(d) Vocational Rehabilitation Counselor Mark
Remas determined that Plaintiff has a degree of
disability of 29% of all occupations as a result of
multiple chemical sensitivity. Mr. Remas based his
determination on research conducted entirely by
Plaintiff, which Mr. Remas "reviewed and replicated in
kind" to conclude that "the restriction equaling 29 of
jobs appears to be a valid degree of permanent
disability." The Court sustains Defendant's objections
to the Declaration of Mark Remas, based upon lack of
personal knowledge under Federal Rule of Evidence
502 and improper opinion evidence by a lay person
2 The Court overrules Defendant's objections to
the Declaration of Dr. Kaye Kilburn. See Defendant's
Objections to Evidence at 4.
l4a
under Federal Rule of Evidence 701. (See Defendant’s
Objections to Evidence at 3-4.)
Furthermore, even if the Court were to admit this
evidence, Mr. Remas’ report does not compare the
types of jobs Plaintiff could do before and after the
onset of multiple chemical sensitivity. In addition,
there is no indication of what time periods Mr. Remas
was analyzing. See Broussard, 192 F.3d at 1258-59
(vocational specialist's analysis regarding whether
Plaintiffs lifting limitation would "constitute a
significant restriction on one's ability to lift, work, or
perform any other major life activity," which included
an examination of the plaintiffs job restrictions, an
assessment of the positions which plaintiff could
perform, and an inquiry into the availability of open
positions in the relevant labor market of San
Francisco, was insufficient to withstand a motion for
summary judgment). Also, despite declaring that he
considers himself "to be a vocational expert on the San
Diego labor market,” Mr. Remas did not himself
describe which class of jobs Plaintiff is unable to
perform. (Remas Decl., Ex. 1 at 6.) Rather, he
"replicated the study steps” and concurred with the
research conducted by Plaintiff, who is not a
vocational expert. (Remas Decl., Ex. 1 at 7.) See
Vv c., 261 F.3d
789 (9th Cir. 2001) (employee who failed to present
evidence of jobs from which she was precluded and of
relevant labor markets for that class of jobs failed to
present a triable issue of material fact under the ADA).
The Court finds that Mr. Remas’ evaluation is
insufficient to raise a genuine issue of material fact
from working in a broad class of jobs.
(ce) Plaintiff provided a “Severity of Disability
Determination" from the State of California
Department of Rehabilitation as evidence. (Enright
15a
Decl. at Ex. 10.) This form categorizes Plaintiff as
"severely disabled," and states that he will be provided
12 months of vocational rehabilitation services on or
before June 30, 2000. However, the form does not
state the nature or impact of Plaintiff's disability, and
the Court cannot draw a legal conclusion from this
form that Plaintiff is disabled under the ADA.
Furthermore, because the form does not specify which
types of vocational rehabilitation services are to be
received, this form does not show how Plaintiff is
precluded from working in a broad class of jobs.
(f} Plaintiff submitted a State of California
Department of Rehabilitation Retraining Contract,
approving Plaintiff for training at Coleman College to
obtain his B.S. Degree in Computer Information
Science. (Enright Decl., Ex. 11 at | 21.) Plaintiff does
not demonstrate how this evidence shows that he is
substantially limited from working; rather, it
demonstrates that Plaintiff is working to achieve a
degree in his chosen field. See Sutton v. United
Airlines, 527 U.S. 471, 492 (1999) ("if a host of
different types of jobs are available, one is not
precluded from a broad range of jobs.")
CONCLUSION
The Court finds that Plaintiff is not substantially
limited in the major life activity of working, and that
he is, thus, not disabled under the terms of the ADA.
Therefore, the Court need not address the issue of
whether Plaintiff was a qualified individual who could
perform the essential functions of his job, with or
without reasonable accommodation. The Court also
need not address Plaintiffs claim that Defendant failed
to engage in the interactive process, as re a by
regulation under the ADA. See Barnett v. U.S. Air,
Inc., 228 F.3d 1105 (9th Cir. 2000); see also 29 C.F.R.
§ 1630.2(0)(3). Any failure by Defendant to engage in
l6a
an interactive process with Plaintiff is negated by the
fact that he is not disabled under the terms of the
ADA. Broussard, 192 F .3d at 1259.
Accordingly, the Court GRANTS Defendant's motion
for summary judgment.
IT IS SO ORDERED.
/s/ NAPOLEON A. JONES, JR.
NAPOLEON A. JONES, JR.
United States District Judge
DATED: October 31, 2001
cc: All Parties
17a
APPENDIX D
ARBITRATION PROCEEDING
In the Matter of the Arbitration
-between-
SOLAR TURBINES, The Employer,
-and-
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS,
District 94, Local Lodge 389 (IAM & AW) on
behalf of Paul Enright, The Union and Grievant.
Re: Propriety of Medical Layoff and Failure to Recall
Joseph F. Gentile - Arbitrator CABarNo. 040180
[Case No, K380-m@-014-0299.Enright]
Decided March 29, 2001
OPINION AND AWARD OF THE ARBITRATOR
APPEARANCES:
For the IAW & AW :
David A. Rosenfeld, Esq., Van Broug,
Weinberg, Roger & Rosenfeld,
| 180 Grand Avenue, Suite 1400,
| Oakland, CA 94612 [(510) 839-6600]
18a
For Solar:
William H. Emer, Esq. and Ann Marie
Zaletel, Esq., Riordan & McKinzie,
300 South Grand Avenue, 29th Floor,
Los Angeles, CA 90071-3109 [(213) 629-4824)
STATEMENT OF THE MATTER
Solar Turbines (Solar) and the International
Association of Machinists and Aerospace Workers,
Collective Bargaining Agreement covering various job
classifications, including that of a "Quality Test
Technician” (OTT).
On April 21, 1997, Paul Enright (Grievant) was
employed by Solar as a QTT in Department 380 of
Solar's facilities known as the Kearney Mesa facility.
As part of the pre-employment processes at Solar the
Grievant completed an "Employee Medical Record” on
April 11, 1997. The Grievant was also interviewed by
Lee Thomas (Thomas), a Supervisor in Department
380. Thomas explained to the Grievant that QTTs
work in different areas of the Kearney Mesa facility
testing various products produced at Solar. He was
also given a tour of the facility, including the Paint
Shop and Department 379.
As already noted, the Grievant was hired.
Subsequent to his employment as a QTT, the Grievant
complained about migraine headaches and advised
his Supervisor, Mohammad Karbasi (Karbasi), that his
headaches were triggered by fumes.
Medical documentation was requested by Solar as
to the Grievant's claimed medical problems. A note
from the Grievant's personal physician, Daniel
Hoagland, M.D, (Dr. Hoagland), stated the Grievant
should avoid fumes, but that he was not barred by Dr.
Hoagland from working around fumes. The name
given to the Grievant's medical condition was
19a
"Multiple Chemical Sensitivity." In effect, the Grievant
experienced migraine headaches when exposed to
dust, chemical fumes, exhaust fumes and metal
fumes. Parenthetically, the "Physical Capabilities
Form" for the QTT position indicated an employee in
this job would be exposed to these very environmental
conditions.
The Grievant's complaints continued and he
ultimately informed Karbasi he could not work in the
various locations where his QTT duties and tasks took
him in the facility. The evidence record established
that fumes are present throughout Solar’s entire
facility. The level and degrees may vary; however, |
fumes were indeed present. In testimony the Grievant
acknowledged he could not work in any of the areas,
but for the software trailer and at Sky Park.
The evidence record established there were fumes
in these areas as well, though the level was less than
other work site locations at the Kearney Mesa facility.
Thus, Solar's management determined the Grievant
had a permanent medical limitation and there were no.
jobs to which the Grievant could’ exercise
displacement rights he was capable of performing
. within the medical limitations of his verified "Multiple
Chemical Sensitivity." Therefore, in accord with the
Letter of Understanding (LOU)* of the Collective
Bargaining Agreement the Grievant was placed on
layoff due to his physical inability to perform the
available work. This action was taken on January 27,
1999.
The Grievant disagreed with this action and a
grievance was filed on or about February 6, 1999, by
the Union protesting the Grievant's placement on a
medical layoff. The matter remained unresolved; thus,
* LOU #2, "Medical Restrictions.”
20a
it came to arbitration before the undersigned on
December 11 and 22, 2000 in San Diego, CA.
During the course of the hearing both sides were
afforded a full and complete opportunity to be heard,
examine and cross-examine witnesses, develop
argument and present relevant evidence. An Official
transcript of the hearing was made by ASAP Court
Reporting, Inc. All witnesses appearing before the
Arbitrator were duly sworn. Final argument was
reserved to Post--Hearing Briefs. These were timely
submitted.
The Grievant attended the entire hearing and
testified. He was fully and fairly represented by the
Union. The Grievant was an active Participant in
presenting his side of the case. ;
Made a part of the evidence record in this case was
a "Submission Agreement” which stated the precise
issue for arbitral determination? it was to this effect;
"Did the Company violate the collective bargaining
agreement or unlawfully discriminate against the
grievant because of his alleged disability when it
(a) placed him on medical layoff on or about
January 27, 1999, and (b) failed to recall him
thereafter? If so, what is the appropriate remedy”
[Joint Exhibit 2 (JX-1)]."
Parenthetically, also made a Part of the record
evidence was a Complaint (00 CV 1842 J (LSP)] filed
in the U.S. District Court, Southern District of
California.
APPLICABLE PROVISIONS OF AGREEMENT
As the statement of the issue indicates, there are
two components to this case: (1) a contract matter
that rests on the interpretation and application of the
2la
Agreement and, more specifically, LOU 2 of the
Agreement and (2) a statutory claim that rests on The
Americans with Disabilities Act of 1990. (ADA) , as
amended, 42 U.S.C. §12101 et seg. and the EEOC
Title I Regulations and Interpretative Appendix, as
amended, 29 C.F.R. 1630 et seq. with reference to
the statutory claim, the core of this claim is the
allegation Solar failed to reasonably accommodate to
his disability, namely, "Multiple Chemical Sensitivity."
This was expressed in the initial February 6, 1999
grievance filing.
Parenthetically, the contractual nexus which
opened the jurisdictional door for the Arbitrator to
address the statutory claim is Section 9-Ol{(b). This
provision states: “[t}here shall be no discrimination
by either party because of race, sex, age, disability,
nationality, religious or political affiliation, union
activity or any other basis protected by law"
[emphasis added]
The precise langauge found in the Agreement’s LOU
2 relevant to the alleged contract violation is as
follows:
"[I]t is understood between the parties that an
employee who has a permanent medical
limitation, which has been verified by objective
medical evidence, shall be permitted to
exercise displacement rights pursuant to
Article X to any job he/she is capable of
performing within the medical limitation. "In
the event there is no job the employee can fill,
then he/she will be placed on layoff due to
physical inability to perform the available
work. The employee will remain on the recall
list in accordance with Article X, Sections
10.12 and 10.13."
eaticieeniniiinieiiiaiiiiaiiaiiiiaiiuiiiiul
22a
Section 10.12 mandates the time an employee on
layoff status “shall continue to accumulate
seniority . . . provided they register with the
Company” and Section 10-13 delineates the "recall"
procedures.
Though this case is not a discipline matter, there is
a "for cause" standard in Section 17.01. 17.01
further details the rights of management to “assign
work" and effect employee status changes, such as
“transfer” [p. 14, infra]
FACTUAL SUMMARY
The Grievant is a relatively short-term employee
with Solar. His date of hire, as already noted, was
April 21, 1997. His date of medical layoff was
January 27, 1999.
Prior to the Grievant's employment at Solar, the
Grievant testified he consulted Dr. Hoagland in May of
1996 [26: 15-16]* about his headaches and between
August of 1996 and April of 1997 he continued to
experience headaches [Id. 24]. The headaches were
less frequent at some point during this timeframe
[276].
In any event, when the Grievant applied for the QTT
position at Solar, he neither voiced any objection
about the different areas where he would be working
or his ongoing headache problems nor voiced any
objection to the work sites where he would be
performing his QTT duties and tasks during the tour
of the facilities. In simple terms the Grievant did not
advise Solar that he had a history of headaches and
neglected [whether “intentionally” or "inadvertently" is
arguable] to inform Solar that he was not able to work
around funes. .
* Legend: transcript of the hearing, page 26, lines 15-
16. Same approach used throughout this Decision.
23a
As already noted (p. 2, supra), the Grievant
completed a "Medical Record Form.” On this form, the
Grievant marked the "no" box to this inquiry: "[dJo
you now have, or have you ever had any of the
diseases or symptons listed below: . . . headaches
(frequent). . ." Given the Grievant's own testimony,
this answer was incorrect. However, the Grievant did
note on the Form's Box 10 that he had consulted a
physician "within the past 10 years" for four
different matters including "headache{s].". This was
truthful, though it was not fully forthcoming and
somewhat misleading given the "no" answer noted
ante.
Karbasi testified as to the difficulties which
unfolded in assigning the Grievant to the various work
sites where he would test various products produced
by Solar. Parenthetically, some of these products were
large. Though exposure to fumes was clearly identified
on the QTT's "Physical Capabilities Form," the
Grievant stated he could not work in these areas. He
reaffirmed this in his testimony during this hearing.
Parenthetically, Karbasi was a credible witness. The
difficulties in assigning the Grievant reached the level
that medical documentation was requested by Solar’s
management; thus, the Dr. Hoagland letter dated July
8, 1998 (p. 2, supra). Dr. Hoagland's handwritten
letter (it is more aptly characterized as a "note")
contained the following in full text:
"Paul Enright has a long history of headaches
which are often set off [sic] by fumes,
ee from engine exhaust, painting and
welding. I recommend that he work only_in
where he not be to es"
[emphasis added].
24a
The emphasized language from Dr. "Hoagiand's
letter clearly established a limitation on the Grievant's
ability to work. Solar maintained at the time and
continued to maintain there were no vacant positions
for which the Grievant was qualified that did not
require exposure to some level of fumes.
Notwithstanding this limitation, the Grievant testified
he never missed any work resulting from migraine
headaches caused by exposure to exhaust fumes or
other substances [149:14; 150:1). As previously noted
(p. 3, supra), there were fumes in all of the areas, but,
at the same time, the degree, extent and levels varied.
On December 10, 1998, the Grievant expressed in a
written memorandum to management his desire to
"exercise my rights under the [ADA] because 1 am
a person with a disability which is Multiple
Chemical Sensitivity." He requested "reasonable
accommodation" and enumerated various areas for
consideration by management. The Grievant appended
Dr. Hoagland's note as medical substantiation for his
claim of disability and reasonable accommodetion asa
consequence of his disability.
The Grievant was seen by Donald J. Dalessio, M.D.
(Dr. Dalessio), a member of the medical staff at the
Division of Neurology at Scripps Clinic Medical Group,
on Janaury 6 1999. In Dr. Dalessio's medical report,
his “impression” was stated in this manner.
"[hjeadache with migrainous features, associated
with sensitivity to ordors." His "comment and plan"
provided in pertinent part “that the patient
[Grievant] be removed from those proximate areas,
which may produce the headaches as described
above. I t th t is disable ted
tivity-
headaches as I have outlined” [emphasis in original].
Management effected the medical layoff procedures
found in LOU 2 (p. 5, supra). A grievance was filed
25a
protesting the propriety of this action on February 6,
1999 and this filing moved the issue into the
grievance/arbitration procedures as found in Article
7 of the Agreement.
The Grievant filed a concomitant charge with the
U.S. Equal Employment Opportunity Commission
(EEOC) on February 8, 1999. In essence, this filing
also challenged the medical layoff linked to the fumes
and further alleged a violation of the ADA because of
the Grievant’s claim he was discriminated against
because of his disability.
The EEOC issued its determination which was a
"Dismissal and Notice of Rights." This was dated June
20, 2000. In pertinent part the dismissal stated “the
EEOC is unable to conclude that the information
obtained establishes violation of the statutes."
This determination was received into evidence;
however, it was not found to be conclusive.
The Grievant raised the issue of his "Multiple
Chemical Sensitivity" in another adjudicative forum,
namely, California's Workers’ Compensation system.
This filing was made on February 8, 1999.
The above represents the factual context for this
matter in an admittedly summary manner.
DISCUSSION
The issue statement asks whether Solar violated
the Collective Bargaining Agreement or “unlawfully
discriminate against the Grievant because of his
alleged disability" in two different situations; (1)
when the medical layoff was effected on Janaury 27,
1999 and (2) when the Grievant was not recalled
thereafter.
With reference to the contract, LOU 2 is the
operative provision. The Grievant had a permanent
medical limitation which was verified by objective
medical evidence (pp. 8 & 9, supra). Given this, LOU
26a
2 mandates the Grievant be permitted to exercise
displacement rights to a job he is capable of
performing within the medical limitation.
The evidence record established all areas of Solar
where QTTs perform their duties and tasks has fumes.
The Grievant claimed the software trailer and at Sky
Park he could work performing software testing. The
evidence established these areas have some fumes as
well, but admittedly at a reduced level. The difficulty,
however, is that the evidence demonstrated the
Grievant lacked the skills necessary to perform
software testing, arguments to the contrary
notwithstanding.
Therefore, pursuant to LOU 2, “fim the event
there is no job the employee can fill, then he/she
will be placed on layoff due to the physical
inability to perform the available work." This is
precisely what Solar's management did. Thus, no
contractual violation of the Agreement can be found
when the medical layoff was effected on January 27,
1999.
The second aspect of the medical layoff relates to
external law, namely the ADA and the progeny of
decisional law and regulations spawned by the ADA
and argued from by the parties. *
To establish a prima facie case of disability
discrimination under the ADA, it must be established
the Grievant was "disabled" within the meaning of the
ADA and that the the Grievant was otherwise qualified
to perform the essential functions of the job, with or
without reasonable accommodation and that the
Grievant has suffered an otherwise adverse
employment decision as a result of his disability. The
* A host of statutory, regulatory and decisional law
was presented in argument. It was fully considered,
though not expressly cited in the text of this Decision.
27a
words "disability" and "qualified" are words-of-art
within the ADA.
The evidence established the Grievant has "Multiple
Chemical Sensitivity." Whether this constitutes a
disability within the meaning of the ADA is certainly
arguable.
Applying the statutory, regulatory and decisional
law standards to the facts in the instant case, the
Arbitrator concluded the Grievant was not "disabled"
as defined in this authority. The evidence record
established the Grievant was not substantially limited
in his ability to perform any major life activity.
Admittedly, the Grievant claimed he could not work in
almost all areas where QTTs worked, but for the two
previously identified. And, as already noted, these two
areas are questionable and it has already been
concluded the Grievant lacked the skills to perform
the software testing. (p. 11, supra). Further, the
Grievant's inability to work in a particular building
does not constitute a substantial impairment in the
major life activity of working.
To claim the statutory right to reasonable
accommodation, the Grievant must first demonstrate
he satisfied the threshold criteria of a statutory
"disability." As just noted, the evidence was simply
insufficient to meet these criteria. The written
comments by Drs. Hoagland and Dalessio were
insufficient to establish that the Grievant was
substantially limited in the major life activity of
working.
With reference to the “qualified” component in the
statutory scheme of the ADA, the Grievant has not
established he can perform the essential functions of
his position, with or without reasonable
‘accommodation. It was clear from this evidence
record that QTTs were to travel to various
departments throughout the facility, including
hiceeeeemtenienmteemnieteneneeisnisidsieiieiinaiiiiiiaiaiasiiilill
28a
Department 379 and the Paint Shop, to perform the
product testing. This was indeed an essential job
function of the QTT position and one which the
Grievant could not perform. The Grievant was aware
of this at the time of his initial employment.
Assuming arguendo the Grievant was a "qualified
individual with a disability," the evidence record
established, as has already been stated, fumes are
present throughout the Solar facility. In testimony,
the Grievant steadfastly maintained he could not work
in an area exposed to fumes [160:20-24]. The only
area the Grievant testified he could work was the
Grievant had met the requirements that would call for
reasonable accommodation.
Thus, as to the second component of the first issue,
the Arbitrator can not find that the Grievant was
“unlawfully discriminated against" because of having
"Multiple Chemical Sensitivity."
This brings the Arbitrator to the second issue,
namely, whether management acted improperly when
testing was performed; however, Ron Stoneman
(Stoneman) , a long-term employee with Solar and a
Principal Test Engineer working in Control Systems,
testified that 80 to 90 percent of the software testing
29a
took place in the trailer when it became available
[255]. There was also software testing in Departments
378 and 380 [250] ; however, as the Grievant testified,
he could not perform software testing on the floor of
these two departments [161:3-16].
Stoneman further testified that it would take six
months to a year for a person to “become fairly
productive at software testing” [249:17]; however,
this would depend on the individual. He further
testified the “control software for industrial type
purposes" is not taught in schools and is learned
through on-the-job training [250].
Stoneman was a very persuasive witness. As
already noted, the Grievant was not qualified to
perform software testing in the software trailer or at
Sky Park. The evidence record established that during
some of the time the Grievant has been on medical
layoff, less senior employees have performed software
testing; however, the evidence record was insufficient
to show the Grievant should have been recalled given
the locations, experience levels and the application of
Section 17.01 (p. 6, supra).
Therefore, the Arbitrator can not find either a
contractual or statutory violation in the fact the
Grievant was not recalled following his medical layoff.
Credibility did have an impact on the above findings
and conclusions. With reference to credibility, the
Grievant's credibility was clouded given the absence of
candor and straightforwardness during his pre-
employment with Solar (pp. 6 & 7, supra).
AWARD
Having been duly selected to serve as the Arbitrator
in this matter and having carefully reviewed the
evidence record as a whole, the evidence supports the
ultimate decision that the issue as framed (p. 4,
supra) must be answered with a "no" -- thus, Solar
30a
did not violate the Collective Bargaining
Agreement or unlawfully discriminate against the
Grievant, Paul Enright, when it (a) placed him on
medical layoff on or about January 27, 1999, and
(b) failed to recall him thereafter! Therefore, the
grievance is DENIED and the claims DISMISSED.
Respectfully submitted,
/s/ Joseph F. Gentile
Joseph F. Gentile
Arbitrator
March. 29, 2001
Los Angeles, CA
[0103031]
ee
3la
APPENDIX E
RELEVANT STATUTES, REGULATIONS
AND EEOC INTERPRETIVE GUIDANCE
1. Americans with Disabilities Act, 42 U.S.C. §
12101, et seq.
§ 12102. Definitions
As used in this subchapter. * * *
(2) Disability
The term “disability” means, with respect to an
individual -
(A) a physical or mental impairment that
substantially limits one or more of the major
life activities of such individual;
(B) arecord of such an impairment; or
(C) being regarded as having such an impairment.
x*x*
§ 12111. Definitions
As used in this subchapter. * * *
(8) Qualified individual with a disability
The term “qualified individual with a disability"
means an individual with a disability who, with or
without reasonable accommodation, can perform the
essential functions of the employment position that
such individual holds or desires. For the purposes of
this subchapter, consideration shall be given to the
employer's judgment as to what functions of a job are
essential, and if an employer has prepared a written
description before advertising or interviewing
applicants for the job, this description shall be
32a
considered evidence of the essential functions of the
job.
§ 12112. Discrimination
(a) General Rule
No covered entity shall discriminate against a
qualified individual with a disability because of the
disability of such individual in regard to job
application procedures, the hiring, advancement, or
discharge of employee compensation, job training, and
other terms, conditions, and privileges of employment.
ke
2. ADA Regulations, 29 C.F.R. Part 1630
[Code of Federal Regulations]
[Title 29, Volume 4]
[Revised as of July 1, 2002]
From the U.S. Government Printing Office via GPO
Access
(CITE: 29CFR1630.2]
[Website : http: / /www.access.gpo.gov /]
[Page 339-342]
§ 1630.2 Definitions.
kkk
(g) Disability means, with respect to an individual--
(1) A physical or mental impairment that
substantially limits one or more of the major life
activities of such individual;
(2) A record of such an impairment; or
(3) Being regarded as having such an impairment.
(See Sec. 1630.3 for exceptions to this definition).
33a
(h) Physical or mental impairment means:
(1) Any physiological disorder, or condition,
cosmetic disfigurement, or anatomical loss affecting
one or more of the following body systems:
neurological, musculoskeletal, special sense organs,
respiratory (including speech organs), cardiovascular,
reproductive, digestive, genito-urinary, hemic and
lymphatic, skin, and endocrine; or
(2) Any mental or psychological disorder, such as
mental retardation, organic brain syndrome,
emotional or mental illness, and specific learning
disabilities.
(i) Major Life Activities means functions such as ©
caring for oneself, performing manual tasks, walking,
seeing,
[[Page 340]]
hearing, speaking, breathing, learning, and working.
(j) Substantially limits--(1) The term substantially
limits means:
(i) Unable to perform a major life activity that the
average person in the general population can perform;
or
(ii) Significantly restricted as to the condition,
manner or duration under which an individual can
perform a particular major life activity as compared to
the condition, manner, or duration under which the
average person in the general population can perform
that same major life activity.
(2) The following factors should be considered in
determining whether an individual is substantially
limited in a major life activity:
(i) The nature and severity of the impairment;
(ii) The duration or expected duration of the
impairment; and
34a
(iii) The permanent or long term impact, or the
expected permanent or long term impact of or
resulting from the impairment.
(3) With respect to the major life activity of working-
(i) The term substantially limits means significantly
restricted in the ability to perform either a class of
jobs or a broad range of jobs in various classes as
compared to the average person having comparable
training, skills and abilities. The inability to perform a
single, particular job does not constitute a substantial
limitation in the major life activity of working.
(ii) In addition to the factors listed in paragraph
(j)(2) of this section, the following factors may be
considered in determining whether an individual is
substantially limited in the major life activity of
"working":
(A) The geographical area to which the individual
has reasonable access;
(B) The job from which the individual has been
disqualified because of an impairment, and the
number and types of jobs utilizing similar training,
knowledge, skills or abilities, within that geographical
area, from which the individual is also disqualified
because of the impairment (class of jobs); and/or
(C) The job from which the individual has been
disqualified because of an impairment, and the
number and types of other jobs not utilizing similar
training, knowledge, skills or abilities, within that
geographical area, from which the individual is also
disqualified because of the impairment (broad range of
jobs in various classes).
(k) Has a record of such impairment means has a
history of, or has been misclassified as having, a
mental or physical impairment that substantially
limits one or more major life activities.
(i) Is regarded as having such an impairment
means:
OOO LL
35a
(1) Has a physical or mental impairment that does
not substantially limit major life activities but is
treated by a covered entity as constituting such
limitation;
(2) Has a physical or mental impairment that
substantially limits major life activities only as a result
of the attitudes of others toward such impairment; or
(3) Has none of the impairments defined in
paragraph (h) (1) or (2) of this section but is treated by
a covered entity as having a substantially limiting
impairment.
3. Section 902 Definition of the Term Disability
[Interpretive Guidance on Title I of the Americans
with Disabilities Act (ADA) by the EEOC]
The U.S. Equal Employment Opportunity Commission
(http: / /www.eeoc.gov/docs/902cm.html#addendum]
[Last Modified Feb. 1, 2000]
ADDENDUM
Since the Compliance Manual Section on the
Definition of the Term "Disability" was published, the
Supreme Court has ruled that the determination of
whether a person has an ADA "disability" must take
into consideration whether the person is substantially
limited in performing a major life activity when using a
mitigating measure. This means that if a person has
little or no difficulty performing any major life activity
because s/he uses a mitigating measure, then that
person will not meet the ADA's first definition of
"disability." The Supreme Court's rulings were in
Sutton v. United Airlines, Inc., 527 U.S. ____ (1999),
and Murphy v. United Parcel Service, Inc., 527 U.S.
(1999).
36a
As a result of the Supreme Court's ruling, this
document's guidance on mitigating measures is
superseded. Following the Supreme Court's ruling,
whether a person has an ADA "disability" is
determined by taking into account the positive and
negative effects of mitigating measures used by the
individual. The Supreme Court's ruling does not
change anything else in this document. The
superseded guidance is found in:
Section 902.2, endnote 5
Section 902.2(e)
Section 902.4, endnote 20
Section 902.4(c)(2)
Section 902.5.
For more information on the Supreme Court
rulings and their impact on determining whether
specific individuals meet the definition of “disability,”
consult the Instructions for Field Offices: Analyzing
ADA Charges After Supreme Court Decisions
Addressing “Disability” and "Qualified," which can be
found on EEOC's website at WWW.CE0C.gov. * * *
902.4 Substantially Limits
&e&&
(c}(2) Substantial Limitation of Major Life
Activity of Working -- As noted previously, supra,
one need not determine whether an impairment
substantially limits an individual's ability to work if
the impairment substantially limits another major life
activity. If the individual is not substantially limited
with respect to any other major life activity, then one
37a
should consider whether the individual is
substantially limited in working.
The Commission has provided regulatory guidance
for determining whether an impairment substantially
limits an individual in the major life activity of
working. The regulation states,
(3) With respect to the major life
activity of working--
(i) The term substantially limits means
significantly restricted in the ability to perform either
a class of jobs or a broad range of jobs in various
classes aS compared to the average person having
comparable training, skills and abilities. The inability
to perform a single, particular job does not constitute
a substantial limitation in the major life activity of
working.
(ii) In addition to the factors listed in
paragraph (j)(2) of this section, the following factors
may be considered in determining whether an
individual is substantially limited in the major life
activity of "working":
(A) The geographical area to which the
individual has reasonable access;
(B) The job from which the individual
has been disqualified because of an impairment, and
the number and types of jobs utilizing similar training,
knowledge, skills or abilities, within that geographical
area, from which the individual is also disqualified
because of the impairment (class of jobs); and/or
(C) The job from which the individual
has been disqualified because of an impairment, and
the number and types of other jobs not utilizing
38a
similar training, knowledge, skills or abilities, within
that geographical area, from which the individual is
also disqualified because of the impairment (broad
range of jobs in various classes).
29 C.F.R. § 1630.2(j)(3) (emphasis in the original).
that job, does not substantially limit that individual's
ability to work. See House Judiciary Report at 29. A
EPD Par. 31,260 at 17,650, 1 AD Cas. (BNA) 220, 229
(D. Hawaii 1980). Rather, an individual is
Significantly restricted (when compared to the average
person having similar qualifications) from performing
a class of jobs or a wide range of various jobs. See id.;
see also 29 C.F.R. § 1630.2(j)(3).
In E.E. Black, an apprentice carpenter was denied
employment after a preemployment physical
examination disclosed a congenital back anomaly.
The court held that the term “substantial limitation"
which the individual is disqualified and the
geographical area to which the individual has
reasonable access. 497 F. Supp. at 1099-1101, 24
EPD at 17, 650-52, 1 AD Cas. at 229-30.
39a
These criteria, when read together, indicate that an
impairment is a substantial limitation to working if it
disqualifies an individual from a class of jobs or a
broad range of jobs in various classes. For example, a
charging party is substantially limited in working if
(s)he has a back impairment that precludes him/her
from heavy lifting and, therefore, from the class of
heavy labor jobs. See 497 F. Supp. at 1102, 24 EPD
at 17,652, 1 AD Cas. at 231. Conversely, a postal
clerk with a mild case of crossed eyes that caused him
to develop eye strain and headaches after operating a
particular machine that required detailed eye work
was not substantially limited in working.
Jasany v. United States Postal Service, 755 P.2d 1244,
1250, 36 EPD Par. 35,070 at 36,835, 1 AD Cas. (BNA|
706, 710 (6th Cir. 1985). Unlike the charging party
in the first example, this complainant did not have an
impairment that precluded him from performing any
other job or duty within a class of jobs. In fact, the
parties agreed that his impairment had not affected
his past work history or his ability to perform other
duties at the post office. Id. The impairment had
limited only his ability to perform this one particular
job and perhaps a narrow range of like jobs. For the
same reason, an individual whose vision impairment
and high-tone hearing loss disqualified him from a
position as a detention deputy but did not disqualify
him from other positions (e.g., corrections officer) was
not substantially limited in working. See State v.
Hennepin County, 441 N.W.2d 106, 51 EPD Par.
39,383, 1 AD Cas. (BNA) 1490 (Minn. 1989) (applying
state law with same definition of "disability”).
Example 1 -- CP is a computer programmer.
She develops a vision impairment that does not
substantially limit her ability to see but does prevent
her from distinguishing characters on computer
40a
screens (without reasonable accommodation). As a
result, she cannot perform any work that requires her
to read characters on computer screens. Her vision
impairment prevents her from working as a computer
programmer, a systems analyst, a computer
instructor, and a computer operator. CP is
substantially limited in working because her
impairment prevents her from working in the class of
jobs requiring use of a computer.
Example 2 -- Same as Example 1, above, except
CPs vision impairment does not interfere with her
ability to distinguish characters on most computer
screens. It does prevent her, however, from
distinguishing characters on the peculiar type of
computer screens that R uses. Although CP cannot
work with the unique screens that R uses, she can
work with other computer screens. CP, therefore, is
not substantially limited in working. Her impairment
prevents her from being a computer programmer for
one particular employer (R), but it does not prevent
her from performing similar jobs for other employers.
Impairments that preclude an individual from
performing a broad range of jobs in various classes
also may substantially limit the major life activity of
working. For example, an individual could be
substantially limited in working if (s)he has severe
allergy to a substance found in many high-rise office
buildings. If the allergy prevents the individual from
working in many of the high-rise office buildings in
the geographical area to which the individual has
reasonable access, then the individual is substantially
limited in working. This is so because a great number
of positions within many classes of jobs would be
performed in those buildings. 29 C.F.R. pt. 1630 app.
§ 1630.2{)).
4la
By contrast, a severe allergy to the peculiar type or
amount of dust found within one office is not an
impairment that substantially limits the ability to
work. Wright v. Tisch, 45 Fair Empl. Prac. Cas. (BNA)
151, 1 AD Cas. (BNA) 1157 (E.D. Va. 1987). In Wright,
the court determined that a complainant's inability to
tolerate the dusty environment in the unit where she
worked did not constitute a disability. 45 Fair Empl.
Prac. Cas. at 152-53, 1 AD Cas. at 1158. The court
noted that none of the complainant's other work
activities was affected by her allergy. 45 Fair Empl.
Prac. Cas. at 152, 1 AD Cas. at 1158. It also noted
that the complainant's allergy did not restrict her from
working in other offices with dust and that she had, in
fact, worked in the presence of dust in other offices
within the agency. Id.
Example 1 -- CP has a hearing impairment
that only mildly affects his ability to hear. The
impairment, however, makes CP extremely sensitive to
very loud noises. CP experiences severe pain when he
is exposed to loud noises for more than a brief period.
Because of this sensitivity, CP cannot work in
environments where noise levels routinely exceed a
certain decibel level. As a result, R refused to hire CP
for a welder's position. Further, CP could not work in
carpentry or auto repair shops and could not be a
heavy equipment operator, a demolitions expert, or a
member of an airport ground crew. CP’s impairment,
therefore, prevents CP from working in a broad range
of jobs in various classes. Accordingly, CP has an
impairment that substantially limits his ability to
work.
Example 2 -- CP has a hearing impairment
that does not significantly restrict his ability to hear
but does make him very sensitive to sound at one
particular pitch. CP works on an assembly line at an
hieememiemiienmeiiesimiaitaiiaiitiiiiaiaiaiiiiadiiaaiiidi
42a
automobile plant in an area that has several such
plants. His employer has installed a new conveyor belt
that has a unique whistle that sounds approximately
every ten minutes, every time the conveyor belt stops
and starts. CP experiences severe pain in his ears
whenever the whistle sounds. As a result, CP can no
longer work at that plant. CP’s impairment, however,
does not substantially limit his ability to work.
Although the impairment prevents him from
performing this particular job for this particular
employer, it does not prevent him from performing
similar jobs for other employers in his geographical
area.
Example 3 -- CP has an impairment that
requires radiation therapy, which results in an
abnormal rate or degree of exhaustion. CP becomes
very tired very easily and cannot engage in continuous
activity for long periods. Assume that CP's
impairment does not substantially limit her ability to
perform any major life activity other than working. As
a result of the impairment, however, CP cannot work
more than four hours per day. This prevents CP from
working in all jobs requiring full-time work. Since
those jobs constitute a wide range of jobs in various .
classes, CP is substantially limited in working. (A
reasonable accommodation of a part-time or modified
work schedule might enable CP to work in a number
of jobs from which she otherwise would be excluded.
When determining whether an impairment is
substantially limiting, however, one does not consider
the ameliorative effects of reasonable accommodation
or other mitigating measures. See § 902.5, infra.)
substantially limited in working, 29 C.F.R. §
1630.2(j)(3)(ii). Although a showing with respect to
OO
43a
each factor is not a required element of proof,
information relating to the factors is relevant to
whether an individual is significantly restricted in the
ability to perform a class of jobs or a broad range of
jobs in various classes. Thus, information about the
geographical area to which an individual has access
and the number and types of jobs from which an
individual is disqualified because of his/her
impairment may be considered when determining
whether an impairment substantially limits the
individual's ability to work. See id.
The reference to the "number and types" of jobs is
not meant to require an onerous evidentiary showing.
29 C.F.R. pt. 1630 app. § 1630.2(j). The reference does
not mean that an individual must identify the exact
number of jobs using similar or dissimilar skills in a
certain geographic area. Further, the reference does
not mean that an individual must count positions or
otherwise present a precise number of jobs from
which (s)he is disqualified because of an impairment.
Instead, the reference to the "number and types" of
jobs “only require(s} the presentation of evidence of
general employment demographics and/or of
recognized occupational classifications that
indicate the approximate number of jobs (e.g., ‘few,'
‘many,’ 'most') from which an individual would be
excluded because of an impairment." § Id.
Furthermore, in cases where it is clear that an
individual is excluded from a class of jobs or a broad
range of jobs in various classes, only minimal evidence
will be required.
An assessment of whether an impairment
substantially limits an individual’s ability to work
focuses on whether the individual is significantly
restricted in the ability to perform a class of jobs or a
broad range of jobs in various classes as compared to
44a
the average person having comparable training, skills,
and abilities. 29 C.F.R. § 1630.2(j)(3)(i). For example,
Suppose that an individual has an impairment that
interferes with his/her ability to work in the class of
clerical jobs. The individual is substantially limited in
working if (s)he is Significantly restricted in performing
clerical work as compared to the average person
having comparable clerical skills. Thus, if the
individual has clerical skills and training and the
impairment prevents him /her from performing many
of the clerical jobs that the average person with
comparable clerical skills can perform, then the
individual is substantially limited in working. On the
other hand, if the individual wants to work as a clerk
but has no clerical skills or training, then (s)he is
clerical class as compared to the ability of the average
person with a similar lack of clerical skills. (It is likely
in that case that the average person with a lack of
Clerical skills can perform only a limited number of
clerical jobs and that the individual is not ignificantly
restricted when compared to the average person.)
The investigator often can begin to obtain
positions. This information, which helps to identify
the skills relevant to the job, may be useful in
identifying other jobs using similar or dissimilar skills.
In addition, the investigator should attempt to
45a
determine the number and types of jobs in the
geographical area from which the charging party is
disqualified because of the impairment. Information
about other jobs where the charging party has
worked, or for which the charging party has or has not
applied, may be relevant to this inquiry. For example,
other employers may have refused to employ the
charging party because of his/her impairment, or the
charging party may not have applied for certain jobs
because the impairment disqualified him/her from
those jobs. Similarly, an employment agency or an
employment counselor may have told the charging
party that the impairment prevents him/her from
working in certain jobs. On the other hand, the fact
that the charging party performed certain jobs
successfully may indicate that the impairment -- if it
existed at the time that the charging party performed
those jobs -- does not disqualify him/her from that
type of work. [Footnote] 21 * * *
[Footnote] 21. If the charging party does not have an
impairment that substantially limits his or her ability
to work (or to perform any other major life activity),
then the investigator should determine whether the
charging party has a record of such an impairment
(see § 902.7, infra) or is regarded as having such an
impairment (see § 902.8, infra). An individual who in
fact does not have an impairment that substantially
limits the major life activity of working nonetheless
may be regarded as having such an impairment (see §
902.8(f), infr a).
46a
APPENDIX F
MEDICAL LETTER WITH SUPPLEMENT BY
DR. KILBURN FOR CONSULTATION WITH MR.
ENRIGHT ON APRIL 19, 1999 [C.A. ER 125-132]
May 4, 1999
Mr. Paul C. Enright
1194 Greenfield Drive
El Cajon. CA 92021
RE: Paul C. Enright
Age/Ed Level years 41/14
Dear Mr. Enright:
You were seen on April 19, 1999, at the Neuro-Test,
Inc., in Pasadena, California. You were pleasant and
cooperative with all parts of the examination and
testing and answered all questions appropriately.
Occupational History:
Previously employed at Solar Turbines, exposed to
exhaust gases.
Exposure History:
Specific chemicals have served as triggers, particular
diesel and gasoline engine exhaust. Now triggered by
perfume incense, charcoal! grill fumes and Cigarette
smoke, also turbo soap. Indoor office environments
are noted as adverse. No pesticide or termiticide
exposures are known.
Chief Complaints:
1. "Migraine" headaches
47a
2. Trouble concentrating
Medical History:
- Usual childhood diseases.
Current Medications: None
Smoking History: Never smoked
Symptom Frequency Score:
Equals 2.4 (compared to a normal score of 2.5) which
is not elevated.
Review of ems:
General
HEENT
Cardio/Resp
Gasto Intestinal
Neuro
light-headedness, headache,
dizziness, fatigue
dryness of mouth/throat, throat
irritation, eye irritation
nausea, indigestion; occasional
chest tightness and pain
occasional loss of appetite
somnolence, insomnia, irritability,
lack of concentration,. difficulty with
recent and long-term memory,
decreased libido, diminished alcohol
tolerance; occasional instability of
mood
Genitourinary none
Psychiatric none
Physical Examination:
Ht 75.5 in. Wt 228 lbs, P 58, BP 136/97, RR 14
A well developed, well nourished man in no acute
distress.
Mouth
48a
normal, no lesions, mucous
membranes moist and well
hydrated, no cyanosis
no deformities
no pus, no ulceration
normal dentition, no erythema or
exudate in pharynx
tympanic membranes norma!
pupils symmetrical, round reactive
equally to light and accommodation,
fundus: normal disc and vessels
supple, no masses
no nodes palpable
normal configuration, no masses or
gynecomastia
normal breathing, moves air well,
breath sounds normal and of normal
duration, no adventitial sounds
apex at midclavicular line, 5th
intercostal space, regular rhythm,
normal heart sounds, no murmurs,
clicks or rubs
soft-non-distended; no
organomegaly or masses;
non-tender on palpation
non-tender, no CVA tenderness
no clubbing or pedal edema; no
varicosities or deformities; joints
mobile, normal pulses
not done
normal smell, ocular movements,
touch, expression, taste,
gag, speech, neck muscle strength
and tongue protrusion
49a
Neuro reflexes active and symmetrical 2+,
muscle strength normal and
symmetrical, sensation grossly
intact
Vibration normal
Deep Tendon reflexes normal
Cerebellar Signs normal stance and gait; normal no
past-pointing
Pulmonary Function Tests Interpretation:
(See table)
Normal spirometry.
Name; Paul Enright Date of Examination: 4-19-99
Age: 41 Ed. Levels 14 Ht: 75.5in Wt: 228 Ibs
Sex: Male
NEUROPHYSIOLGICAL
Simple Reaction Time (ms) 283 275.88 371.29
Choice Reaction Time (ms) 497 489.30 620.17
Sway-Balance (cm/sec)
Eyes Open .84 .69 .92
Sway-Balance (cm/sec)
Eyes Close ee ae & 1.67
Blink Reflex R
Blink Reflex L
Grip Strength (kg) R
Grip Strength (kg) L
Color Vision R
Color Vision L
Visual Fields Performance R
Visual Fields Performance L
Hearing R
Hearing L
Vibration
50a
COGNITIVE FUNCTION
Culture Fair Score
Vocabulary Score
Digit Symbol Score 57
RECALL
Verbal Recall (Immediate)
Verbal Recall (Delayed)
Rey 15 Figures
PERCEPTUAL MOTOR SPEED
Pegboard, Dominant (sec) 70
Trails A (sec) 30
Trails B (sec) 46
Finger Writing Errors R
Finger Writing Errors L
95.43 41.38
68.51 86.24
29.64 45.12
66.65 109.35
LONG-TERM OR CRYSTALLIZED MEMORY
Information
Picture Completion
Similarities
AFFECTIVE STATUS
Profile Of Mood States @)
Tension
Symptom Frequency
Beck's Depression Scale
Limbic System Checklist
PULMONARY FUNCTION
FVC
FEV1
F 25-75
F 75-85
FEV1/FVC
Total Neurological abnormal: 0
50
5la
Neuro Ce) Tests:
- Simple reaction time is normal.
- Choice reaction time is normal.
- Balance measured by sway speed with eyes open
is normal.
With eyes closed, sway speed is normal.
- Blink reflex latency is normal.
- Grip strength is normal.
- Color vision by the Lanthony discrimination test
was normal.
- Visual fields with the Humphrey apparatus are
normal.
- Vibration is normal.
- Hearing is normal.
Neuro T +4
Cognitive Function Domain
- Culture Fair score is normal.
- Digit symbol score is normal.
Recall Domain
- Recall of the stories 1 and 2 normal.
- Rey 15 figures is normal.
Perceptual Motor Speed
- Pegboard performance time is normal.
- Trail making A and trail making B performance
normal.
- Finger writing errors normal
- Information is normal.
- Picture completion is normal.
- Similarities is normal
- Standard vocabulary performance is normal.
52a
Affective Status:
¢ POMS Score equals 33 which is normal.
¢ Beck's Depression Inventory equals 4 (compared to
a normal score of 6) which is normal.
¢ LSCL-33 score equals 26 which is normal.
Squires Memory Inventory:
Self reported ability to recall is diminished for most
inquiries.
Diagnoses:
1. Chemical encephalopathy
2. Adverse cerebrovascular and neurobehavioral
effects of auto exhaust exposure.
Summary and Conclusions:
At 4:50 PM exposed in closed garage (3 car) to diesel
exhaust (1987 MB) for 1 minute. I noted slight eye
irritation. Paul smelted diesel. He filled out POMS fro
4:53 to 5:00.
At 5:00 PM used gas engine exhaust - MB87 - shifted
to Chevrolet in garage for 3 minutes.
Headache started within 10 minutes, created at 25
minutes, as 8 on a scale of 10.
Began testing at 5:30 PM.
w=worse B=better = unchanged
Balance, eyes open 0.62 to 0.84 35% w
eyes closed 1.00 to 1.11 11% w
Simple Reaction Time 213 to 283 34% Ww
53a
Choice Reaction Time 424 to 497 18% w
Digit Symbol 61/0 to 57/1 7% Ww
Pegboard time 75/0 to 70/1 B
Trails A 30/2 to 30/0 =
Trails B 57 to 46/1 B
This represents a positive challenge response to
exhaust fumes. The balance and reaction time are
significant changes. The testing of peg placement and
trails reflects the expected improvement with prior
presentation. Therefore, this is evidence that along
with onset of headache described as migraine there
are adverse neurobehavioral effects.
There is no magic bullet for this illness but it must be
managed by you, by policy of avoidance, diary keeping
to isolate specific irritants and attention to what areas
of your activities produce irritation versus which
produce a pleasant and livable sensation versus those
which are in a sense neutral. You must then diminish
the noxious ones and increase the pleasant ones. This
usually means making different indoor air exposure
arrangements. Also, ingestion of alcohol is adverse.
Similarly the use of many detergents and insect
sprays (insecticides) are all adverse.
You may want to try sweating induced by sauna or hot
tub with proper care to avoid dehydration which
means drinking plenty of water and Gatorade when
engaging in these activities. It doesn't really matter
how sweating is induced. It could be dry heat, wet
heat or exercise. Rest when efficiency begins to drop.
Eyes closed, dark room with or without classical
54a
(organized) music. Break the day into a series of work
sessions of an hour or two.
This expert opinion is rendered to the Standard of
more probable than not.
Sincerely yours,
/s/ Kaye H. Kilburn
Kaye H. Kilburn M.D.
Ralph Edgington Professor of Medicine
KHK:jg
55a
Supplement to report of April 19, 1999
History
Migraine type headaches began about 3 years ago.
Headaches caused 2 to 5 days of disability.
Employment at Solar Turbines began April 21, 1997.
About 1 year later, Mr. Enright noted that headaches
were being triggered by fumes from diesel exhaust,
together with propane fumes. By chance his work was
relocated in temporarily in a trailer for 3 to 4 weeks
and he was free of headaches for 2 weeks.
He was put back into building 20 and had headaches
recur when exposed to diesel fumes. At this time he
noted exposure to propane exhaust triggered
headaches. Subsequently, he has found many
chemicals and chemical mixtures trigger headaches.
These include perfume, incense, hair spray, gasoline
fumes, paint, diesel exhaust, propane exhaust,
welding fumes, engine exhaust, turbo soap, restroom
cleaning chemicals, new carpeting, tar and asphalt
fumes, chimney smoke and charcoal grill fumes. Most
are combustion products.
Cause of injury
The history of association to inhaling fuel exhaust at
work is clear. I exposed Mr. Enright to automobile
exhaust on April 19, 1999 and measured significant
worsening of balance and reaction time. Such
worsening is unlikely due to chance and appear
definitely to be caused by engine exhaust gases.
Extent of disability and _work limitation
The avoidance of chemica’ ‘gers is essential to avoid
headaches and disability. —
is seenteesnmnensmminamaseemamamtiniiaaiaiiiaaasiiaiall
56a
This condition is permanent, whether it will worsen in
time is not predictable. In my experience with diesel
exhaust exposure, the impairment was permanent
and progressive. This may apply to headaches but I
am better able to give an opinion that in the absence
of exposure it will be stationary.
It is my expert opinion that the observations of
triggering by challenge with automobile exhaust, as
related to diesel and other fossil fuel justify the
conclusion that a proof has been demonstrated. In
short, there is objective evidence, as summarized in
the table on page 8, that adverse effects were
measured after exposure. This confirms the subjective
observations made by Mr. Enright and summarized by
his physicians including me.
Sincerely,
/s/ Kaye H. Kilburn
Kaye H. Kilburn M.D.
Ralph Edgington Professor of Medicine
University of Southern California
School of Medicine
2025 Zonal Avenue
CSC 201
Los Angeles, California 90033
Tel: 323 442 1830
Fax: 323 442 1833
57a
APPENDIX G
STATE OF CALIFORIA DEPARTMENT OF
REHABILATION SEVERITY OF DISABILITY
DETERMINATION FOR PAUL ENRIGHT
[C.A. ER 174-175]
STATE OF CALIFORIA
DEPARTMENT OF REHABILITATION
SEVERITY OF DISABILITY DETERMINATION
DR 213 (Regs/Rev. 05/99)
Applicant Name Counselor Name
ENRIGHT, PAUL DYER, GEORGE E.
Social Security Number
558-98-5830
The severity of disability determination is based on an
assessment of your disabilities and their impact on 10
areas of functional capacity, the number of vocational
rehabilitation services you require, and the estimated
time required to compiete your vocational
rehabilitation. The severity of disability determination
is used with your date of application to establish a
priority category. Your placement in a priority category
determines the order in which you will be served. An
explanation of priority category is contained on page
2.
PRIORITY CATEGORY
Level of Severity of Disability _S
MS = Most Severe S=Severe D = Disabled
Application Date : 12/09/1999
98a
The following information was used to determine
your level of Severity of Disability:
1___ Mobility QO Speaking
Q__ Hearing O__Seeing
Q__ Cognitive Processing Q__ Personal Care
O___Self-Direction Q__ Interpersonal Care
4 ___ Work Tolerance 3___Work Skills
12 Estimated Months to Complete Vocational
Rehabilitation Services
The Department of Rehabilitation is operating under
You may request a re-evaluation of your priority
category placement if you believe your situation has
changed sufficiently to place you in a different priority
category.
XX You will be provided vocational rehabilitation
services.
___._ We are currently unable to serve you. You have
been placed on a waiting list and will be contacted
every 90 days and informed of, among other things,
your priority category and the priority category being
served. Your appeal rights are explained on the
attached form DR 1000.
59a
PRIORITY CATEGORY CURRENTLY BEING SERVED
Application Date
Level of Severity of Disability On or Before
Most Severely Disabled YES ALL
Severely Disabled YES 06/30/2000
Disabled NO N/A
PRIORITY CATEGORY
The priority category is established:
First: Based on an individual’s level of severity of
disability.
(Level of severity of disability means disabled,
severely disabled or most severly disabled. A priority
category including individuals who are _ severely
disabled will not be opened until the Department has
sufficient resources to serve all eligible individuals
who are most severely disabled, regardless of
application date. A priority category including
individuals who are disabled will not be opened until
the Department has sufficient resources to serve all
eligible individuals who are most severely disabled or
severely disabled, regardless of application date.)
Second: Based on the date of the application.
Your signature indicates that you have received this
form.
Your Signature: /s/ Paul Enright Date_2-14-00
Authorized Rep/Parent: Date
Counselor Signature:/s/ George Dyer Date :
60a
APPENDIX H
STATE OF CALIFORNIA DEPARTMENT OF
REHABILITATION RETRAINING CONTRACT
FOR PAUL ENRIGHT [C.A. ER 176-178]
DEPARTMENT OF REHABILITATIONN
DR 228 (Rev. 12/85) Computer Generated
Name - ENRIGHT, PAUL
CLIENT CASE NOTES
DATE REMARKS
03/06/2000 #11 IPE
Assessment of Needs:
Mr Enrights a 42 y/o male who is eligible for
department's services based MIOR, intake, and
Medical review which verifies Dx of multiple chemical
sensitivity which causes severe miagraine headaches
that impedes his balance, coordination, concentration
and iocus thus contraindicating his return to his
previous employment as an Electronic Technician. Mr
Enright received his Associates Degree in Electronic
Technology from Cuyamaca College. He last worked in
as a QTT at Solar Turbine 01/27/99. He was placed
on medical layoff because employer could not
guarantee there would be no _ exposure to
chemical/fumes in his work enviornment. Applied
workers compensation which has been denied. He has
recently applied for UI benefits an awaiting decision.
To re-enter the competetive labor market he will need
to be retrained in a field that will accomodate his
impairment /impediments.
Employment Outcome:Through informed choice Mr
Enright has elected to train at ColeMan College
6la
(private institution) to receive a BS in Computer
Science for a career path as a programmer. RC has
discussed with Mr. Enright that San Diego State
University is sufficient to meet his needs for a BS in
computer science therefore the overall cost to the
Department will be equal to or less than the costs of a
public school. Therefore Mr. Enright will be
responsible for the additional costs of electing to train
in a private college vs.training in a public institution.
According to Lawrence Clinger (SDSU Advisor) and RC
review of SDSU Catalog Mr Enright will need
approximately 56 lower division units and 46 upper
division units to acquire a BS degree with emphasis in
Programming. Client understands that the cost of
community college is $11 per unit plus parking, books
and supplies, and that these figures will be used to
calculate DR contribution to Private school and the
SDSU fees will be used to calculate the remaining 46
upper division units to include parking, books and
supplies.
Community college 56 units @ $11 per=$616.00.
Estimated semesters (4) Books/supplies $225.00 per
semester, parking $20.00 per semester = $616.00
(BOGG) + $225.00 (4) + $20.00(4)= $1596. Due to
client's finiancial need he would be eligible for
Pell/Bogg grant. The Pell will be utilized by Client to
assist with living expenses which is essential to the
success of his IPE.
DR contribution to private school minus the BOGG=
$1596.00 - $616= $980.00.
SDSU cost for 12 units per semester$886.00
@ 4 semesters=$3544.00
Books/supples $300.00 @ 4 semesters=$1200
Parking $96.00 @ 4 semesters=$384.00
62a
Private institution (Coleman college) will cost
approximately $18,090.00 and will be completed by
09/30/2001.
According to EDD labor market survey the above
career is expected to continue it growth.
Intermediate Objective: Mr. Enright will attend
Coleman College beginning 03/11/00 thru 09/30/01
to obtain a BS degree in Computer Science with an
emphasis in programming. After successful
completion of training client will work with the career
services aid at coleman college for placement
assistance. It is anticipiated that client will be
employed by 12/30/01 or before.
CLIENT RESPONSIBILITIES:
Client must provide grades at the end of each module
before to permit RC to authorize payment to Coleman
college. a
Contact counselor of any absence from job club or
training.
Client will attend training on a full time basis unless
prior approval is obtained from counselor.
-Report any change in address, phone number,
financial, and all concerns or problems that may have
an adverse impact on the rehabilitation process.
Client will return all transportation claims within 10
days of receipt.
REHABILITATION COUNSELOR-Agree to provide the
necessary services within the scope of Department of
Rehabilitation rules and regulations to empower client
to be gainfully employed by 12/30/01.
CLIENT FINIANCIAL PARTICIPATION: $11952.00.
Post employment and Rehab technology services are
not anticipiated.
63a
Action:Coleman College works in modules. It will take
11 modules for clent to complete B/S degree emphasis
in programming. DR financial contribution per module
will be calculated as follows:
TOTAL DR contribution $6108.00 divided by 11
modules= $555.27 to be paid monthly after successful
completion of each module and upon receipt of
monthly progress report from training institution.
Services to be Provided:
l)Counseling and Guidance-duration of case.
To:Coleman College ATTENTION: Elaine Cahill
7380 Parkway Dr.
La Mesa, CA 91942-1500
Beg 03/11/00 to 04/14/00 completion of lst
module=$555.28 04/17/00 to 05/19/00=$555.28
05/20/00 to 06/23 /00=$555.28
06/26/00 to 07/28/00=$555.27
08/05/00 to 09/08/00=$555.27
09/11/00 to 10/13/00=555.27
10/14/00 to 11/17 /00=$555.27
01/06/01 to03/16/01=$555.27
03/17/01 to 05/25/01=$555.27
05/26/01 to 08/03/01=$555.27 see case following
casenote for continuation of IPE.
LAST ENTRY BY GDYER
DATE © REMARKS
03/06/2000 #12 IPE CONTINUE FROM
CASENOTE #11
08/04/01 to 09/30/01$555.27
The total cost of the BS with emphasis in
programmingis $23.400.00 if starting from the
beg.Client,s transcrips has been evaluated and will
64a
require only 44.5 units to complete BA degree=44.5 x
$140 per unit=$6230.00plus $11.760 for core plus
$100.00 registration=18090.00
DR contribution $6108.00
Client will need to use private transportation due to
his impairment/impediment. He will be traveling 20
mi per day 5 day per wk totals 100 x 4wks=400 mi
mo. Auth averages 20 mpg gas 1.68 ga=$33.60 per
month
Beg 03/13/00 thru03/31/00=$25.20
Beg 04/01/00 thru 11/30/00=$33.60 per mo
SB=none
RC has discussed payment with Client, Elizabeth
Galindo (financial services) with the understanding
that DR226 Report of Progress In Training) must be
attached to authorization before funds or distributed.
/s/ Paul Enright Paul Enright
/s/ George Dyer RC George Dyer
/s/ Nelson Wright RS Nelson Wright
LAST ENTRY BY GDYER |
65a
APPENDIX I
MARK REMAS’ VOCATIONAL EVALUATION
REPORT OF PAUL ENRIGHT [C.A. ER 203-207]
(Full Report With All Exhibits C.A. ER 203-469)
THE REMAS GROUP
September 23, 2000
Mr. Paul Enright
1194 Greenfield Dr.
El Cajon, CA 92021
RE: Paul Enright
Emp: Solar Turbines
Case: SDO 0253905
VOCATIONAL EVALUATION REPORT
PURPOSE:
Mr. Enright, a private party, retained this counselor to
review medical records and labor market information
to determine whether he is restricted from segments of
the labor market and, if so, to what extent. Mr.
Enright has provided a variety of medical reports,
published articles, work environment analysis data,
and has attended interviews with this counselor
METHOD:
Mr. Enright presented data reports drawn from the
O*NET Dictionary. This information is arranged in
Excel data base spreadsheets to demonstrate the
occupational requirements associated with each job
classification in the 0*NET. Occupational
requirements are requirements for strength, posture,
66a
mobility, nonexertional demands, as well as
environmental exposure. This information was
reviewed and independently replicated by this
counselor to determine the validity of sorting job
classifications based on medical restrictions.
The medical reports were reviewed and utilized to
assess the diagnosis and restrictions that are
applicable in this case.
SUMMARY
Dr. Donald Dalessio service report of 01/06/99
identified, "Headache with migrainous features,
associated with sensitivity to odors.”
Dr. Dalessio continues to note that odors and aromas
may precipitate headaches. On the basis of the
research literature and examination of Mr. Enright,
the doctor recommended the removal of Mr. Enright
from the areas of exposure. He states, "I believe that
the patient is disabled related to multiple chemical
sensitivity-producing headaches as I have outlined."
[(RE: Paul Enright 09/25/00 Page 2)]
The cause of headaches is associated with the
exposure at work according to Dr. Kilburn, USC
School of Medicine in his Supplement to report of
April 19, 1999 statement.
Mr. Enright has filed a claim for Worker's
Compensation benefits. He is pursuing an award as a
result of contracting multiple chemical sensitivity from
the industrial exposure to fumes ve his
employment with Solar Turbines.
In his claim for Worker's Compensation benefits, Mr.
Enright reviewed the method of rating his medical
67a
condition. In an effort to quantify his disability for
rating purposes, Mr. Enright conducted an
independent analysis of chemical exposure in
industry. He utilized the resources available through
the relatively new source, O*NET. This compendium
was prepared by the U.S. Department of Labor and
extends the information contained in the traditional
labor references, The Dictionary of Occupational Titles
(DOT), Occupational Employment Survey (OES) and
the Guide to Occupational Exploration (GOE). The
specific characteristics for each job were rated and
quantified and include exertion, postural, and
environmental demands. The information is available
in a series of tables available through the O*NET
internet site. The Data Dictionary provides an
explanation and rating method for each job
characteristic.
Mr. Enright successfully downloaded the information
and incorporated it in a comprehensive list matching
the O*NET code number to the OES number. The OES
number allows comparison of job titles to US Census
information resulting in a quantification of jobs for
each distinctive job title.
The category for environmental contaminants was
identified and charted. Exposure was designated in
severity by a numerical value. In addition, jobs were
classified based on indoor/outdoor work demands,
consideration being given to exposure to exhaust.
Once the data were sorted the number of jobs that
have excessive exposure to fumes, exhaust, or other
contaminants that are injurious to Mr. Enright were
painstakingly tabulated. The results indicated
preclusion from approximately 29 of all jobs listed in
the Dictionary of Occupational Titles.
68a
CONCLUSIONS:
The USC School of Medicine is a nationally recognized
medical facility and the evaluation by Dr. Kilburn is
credible. Pursuant to the medical records provided,
the condition of multiple chemical sensitivity has been
diagnosed after extensive testing.
The physician notes that Mr. Enright's condition
included industrial exposure and he attributed
causation to his employment at Solar Turbines.
[((RE: Paul Enright 09/25/00 Page 3)]
The issue of degree of disability as a result of multiple
chemical sensitivity has been evaluated by use of
available government data for occupations and
census.
The use of O*NET data in relation to the precluded job
characteristics was accurately developed and
represents a reasonable estimate of the reduction in
available occupations specific to Mr. Enright.
The method employed for evaluating the occupational
information was reviewed and replicated in kind.
Thus, the restriction equaling 29% of jobs appears to
be a valid degree of permanent disability.
Respectfully submitted,
/s/ Mark Remas /
Mark Remas, M.A., C.R.C.
Vocational Consultant
cc: Paul Enright
File
69a
[(RE: Paul Enright 09/25/00 Page 4)]
RE: Paul Enright
WCAB#: SDO 0253905
I, Mark Remas, M.A., C.R.C. declare and state:
1. My name is Mark Remas, and I am a certified
vocational rehabilitation counselor,
2. I am the owner of a vocational rehabilitation
counseling firm and function as the senior counselor
and supervisor in addition to my personal work
activity as a_ certified vocational rehabilitation
counselor.
3. I have been certified (as of 1989) as a
rehabilitation counselor by the National Commission
on Rehabilitation Counselors. I have also been
designated as a vocational expert for the Social
Security Administration, Department of Hearings and
Appeals.
4. My current practice consists of providing
vocational rehabilitation services to injured workers
under the California Labor Code 139.5 which includes
preparation of job descriptions and job analyses as
well as vocational exploration and job placement
assistance. Other duties include preparation of labor
market surveys, coordinating and commenting on
residual functional capacity, wage earning capacity
studies, personal injury litigation, and testimony for
the Social Security Administration, Department of
Hearings and Appeals.
5. The preparation of a job analysis requires
visual inspection of the job site, and visual
observation of the performance of a particular job, and
requires an outline of the job requirements, physical
demands, job tasks and _ responsibilities, and
equipment and work aids that are used on the job.
70a
Preparation of a job analysis also requires
quantification of the specific requirements during the
day of lifting, stooping, bending, carrying, etc. as well
as the particular weights that are lifted and carried at
work during the day;
6. I have been preparing labor market surveys in
San Diego since 1982;
7. | consider myself to be a vocational expert on
the San Diego labor market. That is based in part on
my years of experience and the time I have spend in
San Diego contacting and talking to
((RE: Paul Enright 09/25/00 Page 5)]
employees and employers, determining labor market
needs and wages, preparing job analyses and position
descriptions for specific jobs, and assisting injured
workers in returning to suitable gainful employment;
8. I have previously testified as a vocational
expert in Social Security Administration hearings,
Workers' Compensation Appeals Board actions,
Department of Labor actions, dissolution proceedings
and personal injury litigation;
9. I personally interviewed Mr. Enright and
evaluated the information he provided including
medical reports, and data derived from the 0*NET and
other US government resources.
10. 1 replicated the study steps taken by Mr.
Enright and concur with the evaluation of degree of
disability of 29 of all occupations based on
quantification of medical restrictions as a result of
multiple chemical sensitivity.
Signed: /s/ Mark Remas_ 2/25/00 _
Mark Remas, M.A., C.R.C. Date
7la
VISTA - (760) 806-1548
550 W. Vista Way Ste. 310
Vista, California 92083
SAN DIEGO - (858) 560-6733
5858 Mt. Alifan Drive #136
San Diego, California 92111
EL CAJON - (619) 442-9834
270 East Douglas Avenue
El Cajon, California 92020
1-800-564-6733 FAX # (858) 560-6730
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.