|Hearings Unit: Final Order
In the Matter of
dba Atlas Cylinders, Respondent.
Case Number 14-96
Final Order of the Commissioner
Issued March 5, 1997.
FINDINGS OF FACT
ULTIMATE FINDINGS OF FACT
CONCLUSIONS OF LAW
As Complainant, who suffered from a mental impairment (post-traumatic stress disorder), did not have a record of a substantially limiting impairment and was not regarded by Respondent´s management as having a substantially limiting impairment, the Commissioner found that Complainant was not a member of a class of persons protected by ORS 659.425(1)(b) or (c). ORS 659.400(1) and (2), 659.425(1)(b), (c); OAR 839-06-205.
The above-entitled contested case came on regularly for hearing before Judith A. Bracanovich, designated as Administrative Law Judge (ALJ) by Jack Roberts, Commissioner of the Bureau of Labor and Industries for the State of Oregon. The hearing was held on May 7, 1996, in the Conference Room of Suite 220, State Office Building, 165 E 7th, Eugene, Oregon.
The Bureau of Labor and Industries (Agency) was represented by Alan McCullough, an employee of the Agency. Arvard "Butch" Spurgeon (Complainant) was present throughout the hearing, and was not represented by counsel.
Parker-Hannifin Corporation (Respondent) was represented by Paul O. Wickline and Jens Schmidt, Attorneys at Law. John Kostenbauer was present throughout the hearing as Respondent´s representative.
The Agency called the following witnesses (in alphabetical order): John Kostenbauer, Respondent´s Human Resource Manager; Arvard "Butch" Spurgeon, Complainant; Mary Spurgeon, spouse of Complainant; and Bernadette Yap-Sam, Senior Investigator, Civil Rights Division of the Bureau of Labor and Industries.
Respondent called the following witnesses (in alphabetical order): Steven Jaques, Respondent´s Materials Manager; John Kostenbauer, Respondent´s Human Resource Manager; and Bernadette Yap-Sam, Senior Investigator, Civil Rights Division of the Bureau of Labor and Industries.
Having fully considered the entire record in this matter, I, Jack Roberts, Commissioner of the Bureau of Labor and Industries, make the following Findings of Fact (Procedural and on the Merits), Ultimate Findings of Fact, Conclusions of Law, Opinion, and Order.
FINDINGS OF FACT -- PROCEDURAL
1) On November 21, 1994, Complainant filed a verified complaint with the Agency, alleging that he was the victim of the unlawful employment practices of Respondent. After investigation and review, the Agency issued an Administrative Determination finding substantial evidence of discrimination in the terms and conditions of employment based upon disability.
2) On January 18, 1996, the Agency prepared for service Specific Charges, alleging that Respondent discriminated against Complainant in the terms and conditions of his employment by requiring that he attend psychiatric counseling based upon a record of impairment or a perceived disability, in violation of ORS 659.425(1)(b) or 659.425(1)(c). With the Specific Charges, Respondent was served with the following: a) a Notice of Hearing setting forth the time and place of the hearing in this matter; b) a Notice of Contested Case Rights and Procedures containing the information required by ORS 183.413; c) a complete copy of the Oregon Administrative Rules (OAR) regarding the contested case process; and d) a separate copy of the specific administrative rule regarding responsive pleadings. Both the Notice of Contested Case Rights and Procedures and the Bureau of Labor and Industries Contested Case Hearing Rules (OAR 839-50-130(1)) provide that an answer must be filed within 20 days of the receipt of the charging document.
3) On January 29, 1996, the ALJ issued a Discovery Order to the participants, directing them each to submit a Summary of the Case pursuant to OAR 839-50-210.
4) On February 9, 1996, Respondent´s local attorney, Jens Schmidt, requested a postponement of the deadline for submission of Respondent´s answer, a postponement of the deadline for submission of the Summary of the Case, and a postponement of the hearing, because counsel had been only recently retained, and would need a reasonable amount of time to review the matter in order to file an answer, conduct discovery, and prepare for hearing. The Agency did not oppose the postponements requested. The ALJ granted Respondent´s requests for postponement and requested from the participants alternative dates that they would be available for hearing. The Agency and Respondent responded with available dates, and on February 29, 1996, the ALJ issued an Amended Notice of Hearing to the participants.
5) On February 23, 1996, Respondent filed an answer in which it denied the allegation mentioned above in the Specific Charges and raised an affirmative defense.
6) On March 1, 1996, Respondent´s local counsel, Jens Schmidt, filed a motion for an order allowing corporate counsel, Paul O. Wickline, to appear pro hac vice in this matter. Mr. Wickline is licensed to practice law in Ohio. The Agency did not object to this motion. Pursuant to ORS 9.241 and UTCR 3.170, the forum granted Respondent´s motion and authorized Mr. Wickline to appear as joint counsel in this proceeding, effective March 6, 1996.
7) On March 4, 1996, local counsel filed a motion for a discovery deposition of Complainant, as well as a motion for a blanket discovery order allowing counsel to request unspecified documents from Complainant or the Agency Case Presenter, from anyone treating Complainant for post-traumatic stress disorder or the mental suffering alleged; counsel further requested an order allowing Respondent to request admissions from Complainant and the Agency Case Presenter. On March 5, 1996, the Agency filed a response to the foregoing discovery motions. The Agency did not oppose the motion for the deposition of Complainant or the motion for discovery of documents from anyone treating Complainant for the mental suffering alleged, with a proviso. The Agency agreed to Respondent´s request to seek admissions from the Agency Case Presenter, with a proviso. The Agency opposed Respondent´s request for production of documents from anyone treating Complainant for post-traumatic stress syndrome.
8) On March 6, 1996, the forum issued a ruling granting Respondent´s motion for the discovery deposition of Complainant, granting Respondent´s motion to request admissions, and requiring that Complainant provide to the forum for an in camera inspection, records of anyone diagnosing or treating Complainant for post-traumatic stress disorder and records of anyone treating Complainant for the mental suffering alleged.
9) On March 18, 1996, the Agency filed a motion for an order allowing the taking of depositions of John Kostenbauer and Geri Comstock, witnesses for Respondent. Respondent did not oppose this motion. On March 22, 1996, the forum granted the Agency´s motion.
10) On April 5, 1996, the Agency filed a motion to amend the Specific Charges to substitute the term "post-traumatic stress disorder" for "post-traumatic stress syndrome" throughout the Specific Charges. The motion was granted on April 15, 1996, without opposition from Respondent.
11) On April 10, 1996, the ALJ issued a Discovery Order to the participants, directing them each to submit a Summary of the Case pursuant to OAR 839-50-210.
12) Pursuant to the forum´s order to produce certain treatment records for an in camera inspection, the Agency timely provided medical and counseling records on April 12, 1996. On April 16, 1996, following an in camera inspection of same, the forum released the Department of Veterans Affairs rating schedules for 1992 and 1994, in their entirety; the Roseburg Veterans Administration Medical Center psychiatric evaluation and psychosocial assessment, in their entirety; and the Eugene Vet Center intake assessment, in its entirety. On the same date, subject to argument of the participants, the forum proposed to release Dr. Kjaer´s notes in their entirety, and redacted copies of the Eugene Vet Center Group Counseling Record and Progress Notes. Neither participant objected to the release of the latter sets of documents as proposed, and on April 22, 1996, they were released, as proposed, to the participants.
13) On April 22, 1996, local counsel filed a request not to appear at hearing, and to allow Mr. Wickline to represent Respondent at hearing. On April 26, 1996, the forum denied the request, citing the forum´s interpretation of the requirement of UTCR 3.170 -- that associated local counsel participate meaningfully in the preparation and hearing of this matter in order for out-of-state counsel to continue to appear.
14) Pursuant to OAR 839-50-210 and the ALJ´s order, the Agency and Respondent each filed a Summary of the Case.
15) A pre-hearing conference was held on May 7, 1996, at which time the Agency and Respondent stipulated to facts which were admitted by the pleadings. Those facts were admitted into the record by the ALJ at the beginning of the hearing. Certain additional facts were stipulated, which facts were also read into the record at the beginning of the hearing.
16) At the start of the hearing, the attorneys for Respondent stated that they had read the Notice of Contested Case Rights and Procedures and had no questions about it.
17) Pursuant to ORS 183.415(7), the Agency and Respondent were verbally advised by the Administrative Law Judge of the issues to be addressed, the matters to be proved, and the procedures governing the conduct of the hearing.
18) During the hearing the ALJ requested that either the Agency or Respondent provide the forum with a replacement page for Exhibit R-27, page 8, by 5 p.m. on May 14, 1996. No replacement page was received. The record closed on May 14, 1996.
19) The proposed order, containing an exceptions notice, was issued November 15, 1996. Following an extension of time, the Agency timely filed exceptions on December 16, 1996. Following an extension of time, the Respondent timely filed its response to the exceptions of the Agency on January 24, 1997. The Agency´s exceptions are dealt with in the Opinion section of the order.
FINDINGS OF FACT -- THE MERITS
1) At all times material herein, Respondent was a foreign corporation registered to do business in the State of Oregon under the assumed business name of Atlas Cylinders, custom manufacturing large-bore pneumatic and hydraulic cylinders, and was an employer in this state that employed six or more persons, subject to the provisions of ORS 659.010 to 659.435.
2) Complainant has been employed by Respondent since September 3, 1987, when Respondent purchased the cylinder manufacturing plant known as Atlas Cylinders. Complainant had been employed at the same location by Respondent´s predecessor-in-interest since 1973.
3) Complainant was drafted into the US Army in 1967. While on a tour of combat duty in Vietnam, Complainant was severely injured when a land mine exploded. He sustained injuries to his abdomen, right leg, both arms, and left eye, and suffered tinnitus and impaired hearing. Following surgeries and prolonged hospitalization, Complainant was given a medical discharge in 1970. From 1970 through 1972, Complainant maintained a 100 percent service-connected medical disability rating through the Department of Veterans Affairs ("DVA"). During 1972, Complainant´s disability rating was reduced to 70 percent, which rating was maintained until his diagnosis of post-traumatic stress disorder in 1992. On January 23, 1992, in connection with an application for an upgraded DVA service-connected disability rating, Complainant was diagnosed with post-traumatic stress disorder (hereinafter "PTSD"). On May 5, 1992, Complainant´s service-connected disability was upgraded to 80 percent, due to a 10 percent disability rating attributable to PTSD and an increase in Complainant´s service-connected tinnitus to 10 percent. Complainant appealed the 10 percent rating for PTSD; on June 27, 1994, the disability rating for Complainant´s PTSD was increased to 30 percent. Notwithstanding the increased rating for PTSD, Complainant´s overall service-connected disability rating has remained at 80 percent. Complainant´s disability rating for PTSD has remained at 30 percent.
4) PTSD is a mental impairment recognized by the American Psychiatric Association.
5) At all times material, John Kostenbauer was human resources manager for Respondent. The primary job duties of the human resources manager include administration of personnel policies, practices, and processes; examples include employee compensation and benefits, employee counseling, and affirmative action planning. At the time of employment by Respondent, in addition to personnel administration, Kostenbauer had a background in nursing, preventive health services, and public health, including mental health services.
6) At all times material, Geri Comstock was health care coordinator for Respondent. The primary duties of the health care coordinator include utilization review and case management for Respondent´s group health plan, benefit interpretation for Respondent´s employees, wellness program formulation, and workers´ compensation case management.
7) At the time Respondent assumed ownership of Atlas Cylinders, Complainant was working in the storeroom. On March 1, 1988, Complainant received a classification change to stockroom handler/driver I. On March 19, 1990, Complainant was transferred into the Receiving Department as receiving clerk, a newly-created position. Complainant was promoted to receiver on June 11, 1990; on May 6, 1991, he was demoted back to his previous position of storeroom clerk due to his failure to perform responsibilities. On March 1, 1993, Complainant received a classification title change to stockroom clerk.
8) Beginning in 1991, and continuing until Complainant´s transfer to the tool crib in December 1994, Complainant received the following accommodations from Respondent due to his physical disabilities: the availability of a stool or chair to use as needed and rest periods as needed.
9) On June 7, 1993, retroactively effective May 10, 1993, Complainant was provided with a performance appraisal as storeroom clerk. Complainant was supervised in that position by Ben Ferguson. Ferguson rated Complainant below expected performance requirements in three categories: quality of work, quantity of work, and dependability. The specific deficiencies noted included repetitive errors in pulling parts for assembly, low productivity and need for supervision, and episodic resistance to following established methods and procedures for performing his job. As part of the appraisal, Complainant was provided with work performance guidelines to rectify the performance deficiencies. The work performance guidelines were the joint product of Ben Ferguson, Phil Hardman, and Steve Jaques. Complainant received no merit increase in pay.
10) On June 28, 1993, Complainant first approached Kostenbauer about co-worker Rick Lawson´s confrontational and intimidating behavior toward Complainant. Complainant reported to Kostenbauer that Lawson criticized and made threats to Complainant concerning Complainant´s work performance. On July 27, 1993, Complainant reported to Kostenbauer that Lawson was continuing his intimidation of Complainant and asked Kostenbauer to intervene. Complainant expressed concern that if Lawson were not stopped, Complainant might do something to Lawson that he might regret. Kostenbauer took Complainant´s stated concern to mean that Complainant might beat up Lawson. Lawson was given a verbal warning to stop his confrontational conversations with Complainant.
11) On August 12, 1993, Phil Hardman met with Complainant concerning Complainant´s repetitive errors. Complainant attributed the errors to an inability to stay focused due to delayed stress syndrome from his Vietnam experience. Complainant stated that the condition was getting worse. Hardman then went to Kostenbauer about this interaction and about a concern that Complainant might harm someone at the worksite, arising from a comment made at another time by Complainant intimating he could become a "postal worker".
12) Complainant had, at some point, a lunch time conversation with Ben Ferguson and Phil Hardman about a news story concerning a postal worker´s violent assault in the workplace. Complainant stated that the assaultive postal worker was not a combat veteran as the worker had not done the mission correctly, as he had involved outsiders in violence meant only for certain people.
13) Hardman made notes concerning his meeting with Complainant on August 12, 1993, which he gave to Kostenbauer. Hardman´s notes do not contain a reference to a statement by Complainant that he could become a "postal worker".
14) Upon his return from vacation on August 16, 1993, Complainant was summoned by Kostenbauer to discuss the "postal worker" intimation. Complainant neither admitted nor denied that he made the statement. Complainant told Kostenbauer that he was under stress, felt his PTSD was getting worse, and that he had applied for more disability for PTSD; that he was attending a Vietnam support group on Mondays, which was helping; and that he had not been evaluated for two years. Kostenbauer had Complainant sign a release of information form authorizing Respondent to get Complainant´s medical records. Complainant did not protest signing the release or Respondent´s acquisition of his medical records.
15) Kostenbauer made notes of his conversation with Complainant on August 16, 1993. The notes do not reflect that Complainant acknowledged making the postal worker statement.
16) Comstock initiated a telephone conversation with Complainant in August 1993. Complainant gave Comstock some information regarding his background, told Comstock he was getting DVA disability benefits for physical disabilities and for PTSD, and that he was going to the Veterans´ Center for counseling.
17) On August 20, 1993, Comstock related to Kostenbauer that she had talked with the Eugene Vets´ Center support group leader, and had learned that he was not a medical professional. Kostenbauer and Comstock decided during that conversation that they would have Complainant evaluated by a psychiatrist of Respondent´s choosing, once Comstock had been able to talk to the DVA.
18) Comstock obtained a referral for a psychiatrist with a background in PTSD from the Eugene Vet Center. That psychiatrist, Dr. Reeves, was not available, but his office referred Comstock to Dr. Kjaer, who also was reported to have a background in PTSD. Arrangements were made to have Dr. Kjaer evaluate Complainant.
19) On September 3, 1993, Kostenbauer sent Complainant a memo setting out the provider and time and place of his psychiatric evaluation. The evaluation was to take place on September 13, 1993, at the office of Dr. Kjaer.
20) On September 13, 1993, Kostenbauer had Complainant sign a second release form, authorizing Respondent to obtain medical information. Complainant did not openly protest signing the release or being required to see Dr. Kjaer for evaluation.
21) At sometime between Complainant´s appointment with Dr. Kjaer on September 13, 1993, and September 22, 1993, Comstock telephoned Dr. Kjaer to learn if Dr. Kjaer felt Complainant was a safety risk in the workplace. Comstock was informed that Complainant had been unwilling to talk about PTSD or any issues in the workplace. On September 22, 1993, Comstock reported the substance of her conversation with Dr. Kjaer to Kostenbauer. Because their safety concern had not been addressed, Kostenbauer and Comstock thought it best to arrange for another evaluation with Dr. Kjaer. After consulting with the area human resources manager, Dennis Mitch [phonetic], Kostenbauer determined he would talk with Complainant to convince him that Respondent could not help Complainant without Complainant´s cooperation, and that if Complainant did not cooperate, corrective action would be taken. Another appointment was made for Complainant to be evaluated by Dr. Kjaer on October 19, 1993. Kostenbauer met with Complainant on September 23, 1993, and informed Complainant of the seriousness of the evaluation, the need to determine whether Complainant was a danger to himself or others, and that Complainant must either cooperate or face corrective action. Complainant agreed to keep the appointment. Complainant was told that Kostenbauer would get a report from Dr. Kjaer and that Kostenbauer and Complainant would discuss the report when received. Complainant informed Kostenbauer that he thought he would be getting more disability compensation for the PTSD as it was getting worse.
22) On September 24, 1993, Kostenbauer wrote a letter to Dr. Kjaer in which he outlined his perception of Complainant´s history and problems at the workplace. Kostenbauer addressed Complainant´s poor work performance, interpersonal conflicts because of it, and his separate concern that Complainant could become violent at the work place. Kostenbauer noted that Complainant attributes his performance errors to a loss of concentration caused by PTSD and that Complainant reports experiencing moments of stress so great he must retreat to the back of the storeroom to collect his thoughts.
23) Complainant was being sent for a psychiatric evaluation in order to determine or confirm the condition they were dealing with, to learn whether Complainant was a danger to himself or others at the worksite, and to learn whether Complainant´s condition was impacting his ability to do his job.
24) Complainant was seen by Dr. Kjaer for the renewed evaluation on October 19, 1993.
25) On October 22, 1993, Dr. Kjaer issued a report concerning his psychiatric evaluation of Complainant. Regarding the alleged "postal worker" statement, Dr. Kjaer recorded that Complainant indicated that he had not raised the topic in discussions, that others had. Complainant further indicated to Dr. Kjaer that he had had no violence in recent years, and did not believe that his capacity as a combatant had been activated. Complainant denied the allegations made by Respondent: that he had made veiled threats at work of creating mayhem; talked about his PTSD to people at work; and referenced potentially explosive behavior, particularly the post office murders which occurred as a result of conflict within the department. While observing mild disorganization of thought and speech, Dr. Kjaer noted that Complainant displayed no indicia of impaired thought processes, reality testing, communication skill, or impulse control. After noting Complainant´s evasiveness with him, Dr. Kjaer confirmed the diagnosis of PTSD; evaluated Complainant´s stress level as moderate (due to difficulty at work, primarily); noted Complainant´s moderate difficulty in socializing, problems with co-workers, and occupational difficulties; recommended that Complainant be seen on a regular basis; and discussed the possibility that mild doses of medication could facilitate Complainant´s tolerance of his workplace conflicts.
26) On November 3, 1993, following his receipt and review of Dr. Kjaer´s report, Kostenbauer felt that the report had not addressed the workplace violence issue well. Kostenbauer faxed a copy of the report to Comstock with a cover memo containing the following message:
27) Comstock entered a log note in Complainant´s medical case management file on November 4, 1993, as follows: "Date: 11/4/93 Contact: John Kostenbauer Received report from Dr. Kjaer. Will continue to monitor employee performance. Discussed with J.M., no indication that pt is potentially violent."
FROM: JOHN H. KOSTENBAUER
DATE: NOVEMBER 3, 1993
SUBJECT: BUTCH SPURGEON´S PSYCH EVALUATION
"HERE IS REPORT. WHAT DOES IT SAY TO YOU? DOESN´T SAY MUCH TO ME AND CERTAINLY DOES NOT RAISE THE ISSUES WE WERE CONCERNED ABOUT.
"SHOULD WE REQUIRE HIM TO BEGIN SEEING A PSYCHIATRIST ON A DAILY BASIS? BEHAVIOR CONTRACT?
"PLEASE ADVISE ON NEXT STEP. THANKS FOR ASSISTANCE."
28) "J.M." is Joyce Munsell, Comstock´s supervisor.
29) On November 8, 1993, Kostenbauer met with Complainant to go over Dr. Kjaer´s report and recommendations. Complainant told Kostenbauer that he was satisfied with the Vets´ Center support group and did not want additional counseling. Kostenbauer advised Complainant that while he could continue with the support group, he needed to follow the recommendation for regular professional counseling and improve his work performance.
30) In early 1994, Respondent was reorganizing; Steve Jaques was transitioning into a position as head of the storeroom. During this time, Complainant´s poor work performance continued. Respondent was documenting Complainant´s performance. Complainant´s co-workers complained about Complainant´s errors and about having to do part of Complainant´s job. Complainant had not entered into counseling with Dr. Kjaer.
31) On May 19, 1994, Kostenbauer and Jaques met with Complainant. Complainant was given a document titled "Corrective Action Form", a written warning. Recitations in the warning included a statement that corrective action was being taken in order to improve Complainant´s unsatisfactory work performance, identified steps previously taken to correct performance, specified conditions and corrective requirements for Complainant, and set out disciplinary consequences should the conditions not be met. The document contained a recitation that Complainant had been evaluated by a psychiatrist, which evaluation indicated a need for counseling, but no relevant impairment in Complainant´s ability to do his job. Among other requirements, Complainant was directed to augment his support group activity with regular psychiatric visits to Dr. Kjaer, to make an appointment immediately to initiate those visits, and to sign a release in order that regular reports could be received by Kostenbauer concerning Complainant´s progress in therapy sessions. The corrective action form was signed by Kostenbauer, Complainant, and Steve Jaques, the materials manager. All signatures were dated May 19, 1994. Effective May 1, 1994, and in conjunction with the corrective action, Complainant was denied a merit raise and profit sharing was terminated pending improvement in his work performance.
32) During the meeting of May 19, 1994, Complainant did not express opposition to the requirements imposed, including the requirement that Complainant see Dr. Kjaer for counseling on a regular basis.
33) During the summer of 1994, Complainant´s work performance continued to be in need of improvement. Complainant received an annual wage adjustment, but no merit increase.
34) On September 26, 1994, Complainant was given a notice of violation of two provisions of the May 19, 1994, corrective action -- failure to receive regular psychiatric counseling and failure to present reports of progress of the counseling. Complainant was directed to begin psychiatric counseling sessions effective October 1, 1994, or be subject to suspension from the job without pay or to termination. The form was signed by Kostenbauer, Complainant, and Jaques.
35) Complainant did not outwardly protest the direction given on September 26, 1996.
36) In conjunction with the notification of violation of September 26, 1994, Complainant was assigned a review date of February 6, 1995.
37) Complainant continued to have problems with work performance. Between September 15, 1994, and September 29, 1994, Complainant filled in at the front desk of the storeroom due to the vacation of a co-worker. Complainant´s performance problems during this time were partially attributable to his PTSD. On September 30, 1994, Jaques wrote a memo to Kostenbauer concerning the work performance of Complainant during this period. Jaques documented examples of a backlog of tasks left uncompleted, a lack of ability to perform all the tasks of a job that co-workers can perform, and a failure to inform anyone of the problems left unattended.
38) Due to a previously scheduled vacation, Complainant was absent from work between September 30 and October 14, 1994.
39) In a document dated October 17, 1994, and entitled "Work Performance Probation", Complainant was given a last chance agreement to improve his performance or be subject to suspension pending termination. Complainant was placed on 90 days probation with specific job task guidelines for improving his performance. To augment Complainant´s improvement in performance, Respondent mandated that Complainant obtain psychiatric counseling, at Respondent´s expense and with the psychiatrist assigned by Respondent. Complainant was directed to continue psychiatric counseling sessions until released from the psychiatrist´s care. It was recited in this document that regular progress reports would be received by Respondent on Complainant´s progress. This document was signed by Kostenbauer and Jaques on October 17,1994.
40) On October 18, 1994, Kostenbauer and Jaques met with Complainant to highlight concerns with Complainant´s performance. Complainant was told that his job was on the line; that he was capable of performing the job; that he had been given the opportunity for psychiatric counseling and had not taken advantage of it; that he would be on probationary status with the conditions of that probation as set out in the last chance agreement; and informed of the consequences of noncompliance with the conditions of probation. Complainant acknowledged that he was not doing all of his job, that he "slithers" away from his tasks without knowing why. The "Work Performance Probation" was signed by Complainant at this meeting on October 18, 1994.
41) In a letter dated October 21, 1994, Dr. Kjaer informed Kostenbauer that Complainant had attended an appointment with Dr. Kjaer on October 20, 1994. Dr. Kjaer indicated further that Complainant had informed Dr. Kjaer that Respondent required regular reports on Complainant; Dr. Kjaer stated his assumption that Respondent wanted only the fact of attendance reported, and not the content of the visit.
42) In a memo to Complainant dated October 21, 1994, Kostenbauer notified Complainant that an appointment had been scheduled for Complainant with Dr. Kjaer on November 3, 1994. Complainant was directed to schedule all future appointments with Dr. Kjaer himself.
43) Between October 21 and December 5, 1994, Complainant was on a medical leave of absence due to cellulitis in his right leg.
44) During Complainant´s absence, Kostenbauer consulted with his boss, Dennis, regarding Complainant and decided on trying a strategy of getting Complainant out on long term disability, if possible. Kostenbauer´s log note of October 26, 1994, reads as follows: "Discussed case with D. M[remainder of name not legible]. Butch not performing up to potential and about illness. Decided one strategy was to get Butch out on LTD if possible. Not sure it would be approved, but at least a more favorable way to leave the company. If it is not approved, need to continue with probation and goals & see if he meets the goals. Discussed involving corporate attorney at some point if Butch does not meet expectation of probation."
45) On October 28, 1994, Kostenbauer and Jaques made a visit to Complainant´s home. A discussion ensued concerning Complainant´s options, including the viability of his leaving employment at Respondent on long term disability. The course of action at work was also discussed; Complainant was told that probation would continue and be evaluated for continued work. On October 31, 1994, Kostenbauer met with Complainant about possible compensation under long term disability, particularly if being off work were considered 100 percent disability for purposes of DVA disability benefits.
46) On November 3, 1994, Complainant attended his scheduled appointment with Dr. Kjaer. In a letter dated November 4, 1994, Dr. Kjaer informed Kostenbauer that Complainant had related to him Respondent´s offer of "early retirement."
47) On November 28, 1994, Kostenbauer called Dr. Kjaer to learn if Complainant had enough mental illness to supplement the physical disabilities to arrive at a rating of 100 percent for long term disability, and was told that there was no presence of debilitating mental illness. Dr. Kjaer related that mental health was not a problem and that Complainant was coming to the sessions to fulfill the obligations of probation.
48) Toward the end of the time Complainant was on leave with cellulitis, Respondent began to look for a job within the company that Complainant could do successfully. Respondent created a job as tool crib attendant for Complainant. Respondent determined that success was likely in such a position as it was a position with duties Complainant could do, and a position with insular responsibility, which remove Complainant from a centralized function, depended upon by co-workers (with the attendant friction arising from Complainant´s errors and incomplete performance of his duties) and the distraction of noise and a crowd that co-workers represented to Complainant.
49) On December 2, 1994, Complainant called Jaques to inform him Complainant was able to come back to work on December 5, 1994. Complainant was informed that he would be coming back to a new position in the tool crib.
50) On December 2, 1994, Kostenbauer received a copy of Complainant´s discrimination complaint. The complaint was the first clear indication to Kostenbauer that Complainant protested going to a psychiatrist. Complainant was not required to see a psychiatrist following receipt of the discrimination complaint.
51) On December 3, 1994, Complainant was transferred from the job of storeroom clerk to tool crib attendant, to be effective upon Complainant´s return to work on December 5, 1994. Complainant was to receive the same rate of pay in the new position, even though the duties called for lesser pay.
52) On December 5, 1994, Complainant returned to work. Kostenbauer and Jaques met with Complainant to go over their expectations and his new job responsibilities. Complainant´s period of probation was adjusted due to his lengthy leave of absence.
53) Initially, Complainant had some difficulty with grinding tool bits in his new position, but with the aid of magnifying glasses brought from home he was able to solve the problem.
54) Phil Hardman, Complainant´s supervisor in the tool crib, evaluated Complainant´s performance on January 20, 1995. Issues at that time included data entry errors affecting the cycle count (which count affected the computerized ordering system) and duplicate order requests. On January 31 and February 17, 1995, Hardman again evaluated Complainant; the problems noted on the first evaluation had been resolved at the time of the February 17, 1995, evaluation.
55) On February 3, 1995, Kostenbauer sent a letter to Dr. Kjaer requesting certain information concerning Complainant, as follows:
"Currently, we are in the process of reviewing Butch´s work performance and would like a follow-up regarding his progress with you.
"We would like you to address the following issues:
56) On March 1, 1995, Complainant was provided with a probationary performance review. Of eight categories of evaluation, Complainant was rated as being below expected performance in two categories: quantity of work and attitude. Guidelines for improving in these two areas were provided. Complainant´s probation was extended for up to 90 days, with the next evaluation date set for June 1, 1995.
"1. Are there any underlying mental or emotional issues which would prevent Butch from working at Atlas Cylinders?
"2. Are there any underlying metal [sic] or emotional issues which would prevent Butch from performing the essential functions of his job? (The essential functions are attached for your review.)
"3. Are there any underlying mental or emotional issues which would cause Butch to be a danger to himself or others?
"4. Would you project how long you feel Butch will be under your care?
"Butch has signed a Release of Information form and we would appreciate your responses to our concerns at your earliest possible convenience."
57) On June 1, 1995, Complainant was again evaluated, and, despite receiving a below expected performance rating in two categories, he was judged as having a satisfactory performance level overall. He received a merit increase in pay of $0.30 per hour, and profit sharing was reinstated.
58) As of the date of hearing herein, Complainant continues to be employed by Respondent in the tool crib. Complainant´s performance continues to be adequate.
59) Respondent paid for the required evaluation by and Complainant´s sessions with Dr. Kjaer. Complainant was paid at his regular rate for the time he was required to spend with Dr. Kjaer.
60) Kostenbauer has made referrals for counseling for employees in three instances while at Respondent. Two referrals were for marriage counseling; one was for emerging mental illness. The referrals were to suggested providers; counseling was not required.
61) Prior to August 1993, Kostenbauer was unaware that Complainant had a non-physical problem of any kind. Complainant first mentioned the possibility of PTSD when he was scheduled to be evaluated by the DVA for receipt of benefits and needed to get permission to be away from work.
62) After August 1993, Complainant did not engage in any behavior which would have led Kostenbauer to believe that Complainant could be violent in the workplace
63) Kostenbauer interpreted Dr. Kjaer´s 1993 report to mean that Complainant´s PTSD did not impair Complainant´s job performance; Kosten- bauer never concluded that Complainant´s job performance was not impacted by PTSD.
64) Complainant experienced the impact of his PTSD on his work as varying with the level of stress he was experiencing.
65) Complainant´s testimony was generally credible. The Administrative Law Judge observed his demeanor during the hearing, and found him to be genuine in the expression of his uncomfortable experience with the performance appraisals and required counseling. His testimony, however, was not believed in certain particulars. For example, Complainant testified that Dr. Kjaer was unable to be of any help to him as Dr. Kjaer had told Complainant all he knew about PTSD came from Life magazine. Since other credible evidence established that Dr. Kjaer was recommended to Respondent by another psychiatrist with expertise in PTSD, Complainant´s representation was found to be incredible. Another example of testimony disbelieved was Complainant´s statement that he did not see Dr. Kjaer between October 1993 and May 1994 because he thought the company would be setting up the next appointment. The forum finds it doubtful that Complainant could have maintained such a belief for seven months without checking in with Kostenbauer to confirm it. It seems more plausible to the forum that, given Complainant´s distaste for counseling suggested by his employer, he simply ignored the advice of Kostenbauer. Complainant was observed by the forum to be evasive about his conversation with Kostenbauer on August 16, 1993. When asked whether Kostenbauer had said he perceived that Complainant had made the statement that he might create a postal worker situation, Complainant answered that he did not interpret John´s comment as John perceiving he would do it. Because of evasiveness or inherent unbelievability, Complainant´s testimony was not believed in connection with the foregoing points.
66) The testimony of John Kostenbauer was generally credible. For the most part the Administrative Law Judge was impressed by his demeanor that his testimony was believable. However, on two important points his testimony was not believed. On the issue of Complainant´s statement intimating he could become a postal worker, Kostenbauer testified that Phil Hardman had told him Complainant had made that statement on August 12, 1993, during a performance counseling session. Yet Hardman made notes of his conversation with Complainant on August 12, which he gave to Kostenbauer on the same date, which state only that Complainant raised PTSD as an explanation for poor work performance. Had Complainant made the postal worker comment in the same counseling session, or had Hardman told Kostenbauer Complainant had made the comment in the same session, it seems unlikely to the forum that Kostenbauer would not have required Hardman to correct the omission of such a threat when they discussed the situation on that date. It seems more likely, based on certain testimony by Complainant, which the forum has found to be credible, that Hardman told Kostenbauer that he had had a casual lunch time conversation on another occasion with Complainant, in which Complainant made statements concerning postal workers, which, when coupled with learning that Complainant had PTSD, caused Hardman concern that Complainant was intimating a capacity to become a postal worker. The forum found Kostenbauer´s testimony on this point not believable. Kostenbauer´s testimony was inconsistent and vague on another important point -- whether, on August 16, 1993, Complainant acknowledged making the postal worker statement when confronted by Kostenbauer. Kostenbauer testified twice that Complainant had just looked at him when confronted and had not denied making the statement, and later testified that Complainant had admitted making the statement. Based on Kostenbauer´s inconsistent and somewhat evasive testimony on this point, the forum finds that his testimony on this point was also not credible.
67) The testimony of the other witnesses was credible. The Administrative Law Judge observed the demeanor of each witness and found each to be believable.
ULTIMATE FINDINGS OF FACT
1) At all times material, Respondent employed six or more persons within Oregon.
2) At all times material, Complainant was employed by Respondent.
3) Complainant was first diagnosed with PTSD on January 23, 1992, by the DVA.
4) PTSD is a mental impairment which weakened, diminished, restricted, or otherwise damaged Complainant´s health or mental activity.
5) At times material, Complainant´s mental impairment of PTSD did not substantially limit one or more major life activities.
6) Complainant had a record of PTSD, an impairment, as of January 23, 1992, but such record was not of a substantially limiting impairment.
7) Complainant was experiencing serious work performance problems between Spring 1993 and February 1995.
8) Respondent required Complainant to enter counseling because of Complainant´s ongoing performance problems.
9) In requiring psychiatric counseling, Respondent did not treat Complainant as if his impairment of PTSD substantially limited a major life activity without it.
10) Respondent´s attitude toward PTSD did not include a belief or opinion that a person suffering from it was substantially limited in a major life activity, without ongoing, contemporaneous psychiatric counseling.
CONCLUSIONS OF LAW
1) At all times material, Respondent was an employer subject to the provisions of ORS 659.010 to 659.110 and 659.400 to 659.460.
2) The Commissioner of the Bureau of Labor and Industries has jurisdiction over the persons and of the subject matter herein and the authority to eliminate the effects of any unlawful employment practice found. ORS 659.040, 659.050, and 659.435.
3) The actions of employees John Kostenbauer, Phil Hardman, Steve Jaques, and Geri Comstock, described herein, and their perceptions and attitudes underlying those actions, are properly imputed to Respondent.
4) ORS 659.425(1) provides, in pertinent part: "For the purposes of ORS 659.400 to 659.460, it is an unlawful employment practice for any employer to * * * discriminate * * * in terms, conditions or privileges of employment because:
"(b) An individual has a record of a physical or mental impairment; or
"(c) An individual is regarded as having a physical or mental impairment." ORS 659.400 further provides, in pertinent part: "As used in ORS 659.400 to 659.460, unless the context requires otherwise:
"(1) ´Disabled person´ means a person who has a physical or mental impairment which substantially limits one or more major life activities, has a record of such an impairment or is regarded as having such an impairment.
"(2) As used in subsection (1) of this section:
"(a) ´Major life activity´ includes, but is not limited to self-care, ambulation, communication, transportation, education, socialization, employment and ability to acquire, rent, or maintain property.
"(b) ´Has a record of such an impairment´ means has a history of, or has been misclassified as having such an impairment.
"(c) ´Is regarded as having an impairment´ means that the individual:
"(A) Has a physical or mental impairment that does not substantially limit major life activities but is treated by an employer or supervisor as having such a limitation;
"(B) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitude of others toward such impairment; or
"(C) Has no physical or mental impairment but is treated by an employer or supervisor as having an impairment."
OAR 839-06-205 provides, in pertinent part:
"As used in these rules unless the context requires otherwise:
"(2) ´The attitude of others toward such impairment´ means an opinion, evaluation, or belief, held by another person or persons toward the individual´s perceived or actual physical or mental impairment.
"(5) ´Medical´ means authored by or originating with a medical * * * physician * * *.
"(7) ´Physical or mental impairment´ means an apparent or medically detectable condition which weakens, diminishes, restricts or otherwise damages an individual´s health or physical or mental activity."
Complainant was not a disabled person at times material herein.
5) Pursuant to ORS 659.060(3), the Commissioner of the Bureau of Labor and Industries shall issue an order dismissing the charge and the complaint against any respondent not found to have engaged in any unlawful practice charged.
The pivotal issue in this case is whether Complainant is a "disabled person", as defined in ORS 659.400(1) and (2), entitled to protection from discrimination by ORS 659.425. ORS 659.425 prohibits discrimination against an individual based upon an actual disability, a record of disability, or a perceived disability. The Agency has alleged that Complainant was discriminated against by Respondent because he had a record of an impairment, PTSD, or because Respondent perceived him to be disabled. The Agency charged violations of ORS 659.425(1)(b) and (c).
1. ORS 659.425(1)(b)
ORS 659.425(1)(b) prohibits discrimination because an "individual has a record of a physical or mental impairment." When ORS 659.425(1)(b) is read in light of the definitions in ORS 659.400(1) and (2), "has a record of such an impairment" means that an individual has a history of, or has been misclassified as having an impairment which substantially limits one or more major life activities. ORS 659.400 (2)(b); Devaux v. State of Oregon, 68 Or App 322, 326, 681 P2d 156, 158 (1984). The Agency did not allege that Complainant had a history of an impairment that substantially limited one or more major life activities and the record does not support a finding that he did.
The evidence established that as of January 23, 1992, Complainant was diagnosed with PTSD. As of that date, Complainant had a history of PTSD, an impairment. There was insufficient evidence that PTSD substantially limited a major life activity of Complainant at any time before or after January 1992. There was evidence establishing that Complainant was initially awarded a 10 percent VA disability rating for PTSD on May 5, 1992, and that, on appeal, the rating was upgraded to 30 percent on June 27, 1994. The fact that an individual has a record of being a disabled veteran, or of disability retirement, or is classified as disabled for other purposes does not guarantee that the individual will satisfy the definition of "disabled person" under ORS 659.400. Other statutes, regulations, and programs may have a definition of "disability" or "disabled person" that is not the same as the definition set forth in ORS 659.400. Accordingly, in order for an individual who has been classified in a record as "disabled" for some other purpose to be considered disabled for purposes of ORS 659.425 (1)(b), the impairment indicated in the record must be a physical or mental impairment that substantially limits one or more of the individual´s major life activities.
A combat veteran´s basic entitlement to compensation for disability resulting from personal injury suffered or disease contracted in line of duty, in the active military during a period of war, is set out at 38 USCA 1110 (West Supp 1991). The term "disability", as used in the basic entitlement statute, refers to impairment of earning capacity. Allen v. Brown, Vet App 1995, 7 Vet App 439. Authority to adopt and apply a schedule of ratings of reductions in earning capacity from specific injuries is delegated to the Secretary of Veterans Affairs at 38 USCA 1155 (West Supp 1991). Section 1155 mandates that the ratings be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations, and that the schedule be constructed so as to provide no more than ten grades of disability upon which payments of compensation shall be based, in graduated increments of 10 percent (i.e., 10 percent, 20 percent, etc., to 100 percent).
Pursuant to its grant of authority to adopt a schedule of ratings of reductions in earning capacity, the Secretary of Veterans Affairs adopted a schedule for rating disabilities, codified at 38 CFR Ch. 1, Part 4 (1964) (amended 1994). In the evaluation of mental disorders, the severity of disability is based upon actual symptomatology, as it affects social and industrial adaptability. 38 CFR Ch. 1, 4.130 (1994). The schedule of ratings for mental disorders is codified at 38 CFR Ch. 1, 4.132 (1994). The general rating formula for psychoneurotic disorders, which includes PTSD, contains descriptive formulas for each of six ratings -- 0 percent, 10 percent, 30 percent, 50 percent, 70 percent, and 100 percent.
The descriptive formula for a disability rating of 10 percent for psychoneurotic disorders reads: "Less than criteria for the 30 percent, with emotional tension or other evidence of anxiety productive of mild social and industrial impairment". The descriptive formula for a disability rating of 30 percent for psychoneurotic disorders reads: "Definite impairment in the ability to establish or maintain effective and wholesome relationships with people. The psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment". In contrast, the descriptive formula for 50 percent disability refers to "considerable impairment" in ability to establish or maintain relationships, and to "considerable industrial impairment" by reason of psychoneurotic symptoms. For 70 percent disability, the ability to establish or maintain relationships is described as "severely impaired"; there is "severe impairment" in the ability to obtain and maintain employment due to severe and persistent psychoneurotic symptoms. On the record herein, the forum is unable to determine the level of DVA disability rating, if any, that correlates with a substantial limitation to one or more of the Complainant´s major life activities.
As there is insufficient evidence on the record from which to conclude that Complainant has a record of a substantially limiting impairment or was misclassified in any respect, the forum finds that Complainant does not enjoy the protection of ORS 659.425(1)(b).
2. ORS 659.425(1)(c)
ORS 659.425(1)(c) prohibits discrimination because an individual is regarded as having a physical or mental impairment that substantially limits a major life activity. OSCI v. Bureau of Labor and Industries, 98 Or App 548, 553, 780 P2d 743, 746 (1989). ORS 659.400(2)(c) provides:
´"Is regarded as having [such] an impairment´ means that the individual:
"(A) Has a physical or mental impairment that does not substantially limit major life activities but is treated by an employer or supervisor as having such a limitation;
"(B) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitude of others toward such impairment;
"(C) Has no physical or mental impairment but is treated by an employer or supervisor as having an impairment."
The theory of perceived disability defined by ORS 659.400(2)(c)(C) is not applicable here, as Complainant has a mental impairment -- PTSD. The Agency has alleged those theories of perceived disability defined by ORS 659.400(2)(c)(A) and (B).
ORS 659.400(2)(c)(A) "protects the person who has a nonsubstantial impairment that the employer erroneously treats as substantial[.]" OSCI, 98 Or App 553, 780 P2d at 746. For purposes of Paragraph III.B., the Agency has pled that PTSD does not substantially limit Complainant´s major life activities. The treatment averred in this Paragraph was Respondent´s imposition of mandatory psychiatric counseling. Of necessity, it is this regimen that must reflect that Respondent treated Complainant as if his PTSD substantially limited a major life activity. This requirement was imposed by Respondent´s supervisory and management personnel, primarily by decision of John Kostenbauer.
Whether Respondent erroneously treated Complainant´s impairment as substantially limiting a major life activity is a question of fact. OSCI, 98 Or App 555, 780 P2d at 747. No evidence was presented to suggest that the major life activity in question was other than the major life activity of employment. Thus, the question to be answered is whether Respondent, by requiring psychiatric counseling, treated Complainant as substantially limited in the major life activity of employment without it. In order to be substantially limited in employment, one must be unable to perform or significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes. See, e.g., OSCI, 98 Or App 554, 780 P2d at 747; In the Matter of Oregon State Correctional Institute, 9 BOLI 7, 25-26, 35 (1990), on remand, OSCI, supra; Glenn Walters Nursery, Inc., supra, at 42; Miller v. AT & T Network Systems, 722 F Supp 633, 639-40 (D Or 1989), aff´d mem, 915 F2d 1404 (9th Cir 1990). In the present case, in order to have treated Complainant as substantially limited in employment because of PTSD, Respondent would have to have treated Complainant as if he was significantly restricted in the ability to safely and effectively perform either a class of jobs or a broad range of jobs in various classes, without ongoing, contemporaneous psychiatric counseling.
ORS 659.400(2)(c)(B) protects that individual whose impairment is substantially limiting only as a result of the "attitude of others toward such impairment." From the allegations of Paragraph III.C. and the evidence produced at hearing, the forum infers that it is the attitude(s) of Complainant´s direct supervisors and other managerial personnel, particularly that of John Kostenbauer, upon which the Agency relies. The thrust of the allegations of Paragraph III.C. is that the requirement of counseling imposed by Respondent was an action taken because of Respondent´s attitude toward PTSD, which attitude substantially limited Complainant´s major life activities. In the present case, in order to have been substantially limiting to employment, Respondent´s attitude toward PTSD would have to have been that a person suffering from it was significantly restricted in the ability to safely and effectively perform either a class of jobs or a broad range of jobs in various classes, without ongoing, contemporaneous psychiatric counseling.
The forum must examine the events, motives, and attitudes toward PTSD which resulted in the requirement of counseling, in order to determine whether Complainant was treated as if his PTSD was substantially limiting to employment, without counseling, or whether Respondent´s attitude toward PTSD rendered it substantially limiting.
A. 1993 Medical Evaluation
From the time of Respondent´s purchase of the Atlas Cylinders business in 1987 until Spring 1993, Complainant displayed intermittent periods of poor work performance. By the time of his performance evaluation on June 7, 1993 (retroactive to May 10, 1993), Complainant´s performance had deteriorated to such an extent that Respondent began to invoke disciplinary measures to change it, including withholding raises, issuing work performance guidelines, and documenting performance deficiencies. On August 12, 1993, in a work performance counseling session with his supervisor, Phil Hardman, Complainant stated that his repetitive errors were due to an inability to stay focused caused by PTSD, and that his condition was getting worse. Hardman shared this information with John Kostenbauer on the same date. During the same conversation with Kostenbauer, Hardman shared a concern about potential workplace violence by Complainant. At the time of this conversation with Hardman, Kostenbauer was aware that Complainant, in complaining of harassment and intimidation by a co-worker, Rick Lawson, had expressed a concern that he might do something to Lawson he might regret if Kostenbauer did not remedy the situation.
On notice of Complainant´s claim of PTSD, poor work performance allegedly attributable to a worsening of that condition, and a concern that Complainant could potentially become violent in the workplace, Kostenbauer, in consultation with Geri Comstock, decided to have a psychiatric examination performed to confirm that Complainant suffered from PTSD and the extent thereof, to ascertain whether Complainant was a danger in the workplace, to determine whether Complainant was able to perform his job, and to determine whether PTSD was affecting Complainant´s job performance. Under the circumstances existing in August 1993, a decision to require a psychiatric evaluation of Complainant for the reasons given was entirely appropriate. OAR 839-06-225 (1) and 839-06-235. The purpose of the medical examination was job related and the scope consistent with business necessity.
Following Complainant´s initial evaluation appointment with Dr. Kjaer on September 13, 1993, Comstock and Kostenbauer learned from Dr. Kjaer that Complainant had been unwilling to discuss PTSD as it related to the workplace. In response, Kostenbauer informed Complainant of the need for Complainant´s cooperation in the evaluation and warned Complainant that he faced corrective action if he failed to cooperate. A second appointment was scheduled for continuation of the evaluation. Pursuant to OAR 839-06-235(3)(a), an employee must cooperate in a medical inquiry or evaluation relating to the employee´s ability to perform the work involved. An employer may exact an employee´s cooperation by the means utilized by Respondent. Prior to the second appointment, Kostenbauer documented for Dr. Kjaer Respondent´s continuing concern with Complainant´s job performance, workplace conflicts, and with the possibility that Complainant could become violent in the workplace.
Following the second appointment, Dr. Kjaer issued a report concerning his evaluation of Complainant. Dr. Kjaer confirmed the diagnosis of PTSD, opined that Complainant was under a moderate level of stress due to difficulties at work and at home, and indicated that Complainant was functioning at a moderate level of symptom- atology. Dr. Kjaer recommended that Complainant be seen on a regular basis and suggested that a mild dose of medication might assist Complainant. Unable to determine from the report whether Complainant represented a danger at the workplace, Kostenbauer sought the advice of Geri Comstock. After consulting with her supervisor, Comstock concluded that there was no indication that Complainant was potentially violent. Following this determination, the record is devoid of any evidence of behavior by Complainant that would have caused management personnel at Respondent to again fear workplace violence at Complainant´s hand. Complainant´s job performance, however, continued to be a concern to management. On November 8, 1993, Kostenbauer reviewed Dr. Kjaer´s report and recommendation with Complainant. Complainant indicated that he was content with the Vet Center support group and did not want additional counseling. Kostenbauer advised Complainant to follow the recommendation of counseling as Complainant´s work performance had to improve.
B. 1994 Counseling Requirement
Complainant did not, however, avail himself of the counseling opportunity. His performance continued to deteriorate in early 1994, and Respon- dent continued to document Complainant´s performance problems. On May 19, 1994, Kostenbauer and Complainant´s then-supervisor, Steve Jaques, met with Complainant to discuss his performance. Complainant was provided with a written warning, which documented his unsatisfactory performance and the steps taken by Respondent to correct it. In addition to other conditions and corrective actions, including the loss of profit sharing, Complainant was required to commence regular psychiatric visits to Dr. Kjaer and to execute a release of information such that Kostenbauer could receive regular reports on Complainant´s progress. Complainant was informed that a failure to follow the conditions of the corrective action would result in further disciplinary action.
Within the written warning there is a recital which reads: "Butch has been evaluated by a psychiatrist, which indicated a need for counseling, but no relevant impairment in his ability to do his job..." From this statement, it is apparent that Respondent did not interpret Dr. Kjaer´s report as expressing an opinion that Complainant was unable to perform his job because of his PTSD. According to Kostenbauer, this statement meant that Complainant should have been able to do his job. Despite his ability to perform, Complainant´s work performance had continued to deteriorate. Dr. Kjaer´s report had confirmed the presence of workplace difficulties and stress upon Complainant, as well as occasional home stresses, and, in consideration of the interconnection between stress and the underlying condition, had indicated the need for counseling. Complainant had not taken advantage of counseling on his own. Because there had been no positive change in work performance, and because Kostenbauer felt Complainant needed counseling to help reduce the workplace stressors, as recommended by Dr. Kjaer, such counseling was made a requirement in order to improve Complainant´s job performance by removing all known or potential barriers to it.
As Complainant had not fulfilled the counseling and release conditions of the corrective action taken on May 19, 1994, Respondent again issued a warning on September 26, 1994. Complainant was directed to begin psychiatric counseling by a date certain, or face disciplinary action. Further disciplinary measures were being suspended on the condition that Complainant fulfill the two requirements earlier imposed by the date indicated.
Following substantial documentation by Complainant´s supervisor of abysmal performance by Complainant between September 15 and 29, 1994, Respondent placed Complainant on 90 days probation on October 18, 1994. At that time, Complainant was provided a last chance agreement, which he signed, to improve his performance or be subject to suspension pending termination. Complainant was given specific work guidelines, weekly work performance counseling sessions with his supervisor, and required to commence and maintain psychiatric counseling sessions with Dr. Kjaer until released by Dr. Kjaer. Complainant was informed that his job was on the line -- that he now must improve his performance or lose his job. Complainant admitted that he was not doing all of his job, that he "slithers" away from his tasks without knowing why. At hearing, Complainant testified that his PTSD had affected his accuracy at work at times, including the period of time he filled in at the front desk in 1994 (September 15 to 29, 1994).
Complainant was off work with cellulitis between October 21 and December 5, 1994. During that time discussions were had with Complainant concerning the feasibility of his leaving the company on long term disability. Financially, this would require 100 percent disability. At that time, Complainant had a total disability of 80 percent, when the physical disabilities were combined with PTSD. Ultimately, Dr. Kjaer was consulted in this regard. Dr. Kjaer told Kostenbauer that Complainant did not have a debilitating mental illness, that mental health was not a problem. Without an increase in the overall disability rating, long term disability was not a viable option.
Toward the end of the time Complainant was on leave with cellulitis, Respondent began to look for a job within the company that Complainant could do successfully. Respondent created a job as tool crib attendant for Complainant. Respondent determined that success was likely in such a position as it was a position with duties Complainant could do, and a position with insular responsibility, which would remove Complainant from a centralized function, depended upon by co-workers, and distractions provided by co-workers. Complainant was to be paid his former wage, although the duties of the position called for a lesser rate.
On December 2, 1994, Complainant notified Respondent that he was released to come to work as of December 5, 1994. During that conversation, Complainant was told he would be transferred to the tool crib upon his return. On this same date, Respondent received a copy of the present civil rights complaint. Complainant was not again required to attend counseling.
On December 5, 1994, Complainant returned to work and met with Phil Hardman and John Kostenbauer. Complainant was provided with a list of job responsibilities for his new position. His probation was extended to March 1, 1995, due to his intervening medical leave. During this interval of probation, Complainant was evaluated bi-monthly by his supervisor, Phil Hardman. On February 3, 1995, Kostenbauer sought an evaluative update from Dr. Kjaer. After a rocky start, Complainant´s performance had improved somewhat by his probation performance review of March 1, 1995. Because his performance was not yet satisfactory, Complainant was continued on probation for another 90 days. By June 1, 1995, Complainant´s performance level was satisfactory. On that date, Complainant received a merit increase in pay and profit sharing was reinstated. Complainant´s performance continued at a satisfactory level until the date of hearing herein.
C. Motivation of Respondent
Beginning on April 14, 1994, and continuing thereafter, Complainant was being disciplined for poor work performance. Despite the documented absence of an inability to perform his job, Complainant continued to flounder; his work performance continued to deteriorate. Respondent was taking serious disciplinary actions; Complainant was not responding. Respondent knew of Complainant´s impairment, knew that Complainant had earlier attributed his declining job performance to his worsening PTSD and the impact of increased stress upon it, and knew that Complainant did not understand and could not explain his lack of improvement as late as October 18, 1994. Respondent also knew that Dr. Kjaer had recommended counseling to ameliorate the impact of workplace stressors. The forum finds that the requirement of counseling was intended to assist Complainant with his performance problem by eliminating all known, potential barriers to improvement.
Respondent did not treat Complainant as if he were substantially limited in employment without counseling. Complainant was not treated as unable to perform a class of jobs or broad range of jobs without counseling; indeed, he was not treated as unable to perform even one job -- his own current job -- without counseling. Following Dr. Kjaer´s evaluation and recommendation of ongoing psychiatric counseling in October 1993, Complainant continued his employment with Respondent until May 1994 without a counseling mandate. Further, Complainant´s employment was continued after Respondent learned of Complainant´s failure to abide by the counseling requirement between May and September 1994. Finally, Complainant´s employment was continued without a counseling requirement between December 5, 1994, and the present. For the same reasons, it has not been demonstrated that Respondent had an attitude toward PTSD which resulted in a substantial limitation to employment for Complainant in the absence of counseling. Counseling was imposed as a condition of employment in May 1994, and thereafter, because of Complainant´s performance problems, which Complainant had tied to his PTSD, and at the recommendation of the psychiatrist who had evaluated Complainant on Respondent´s behalf.
As Respondent did not treat Complainant as substantially limited in employment because of his PTSD and did not have an attitude toward PTSD which substantially limited Complainant´s major life activity of employment, Respondent did not regard Complainant as having a substantially limiting impairment. Complainant is not protected from discrimination by ORS 659.425(1)(c).
As Complainant did not have a record of a substantially limiting impairment, and was not regarded by Respondent´s management personnel as having a substantially limiting impairment, Complainant was not a member of a class of persons protected by ORS 659.425(1)(b) or (c).
3. Agency´s Exceptions
The Agency excepts, primarily, to the legal standard utilized by the forum to determine whether Respondent perceived Complainant to be substantially limited in the major life activity of employment, and to the legal conclusions flowing from the use of that standard. The Agency also excepts to certain of the proposed ultimate findings of fact, to which the legal standard was applied. Finally, the Agency excepted to material in a footnote that described both the "Hobsen´s choice" faced by employers like Respondent in a situation where a mental condition impacts, but does not impair, job performance; and the absence of discriminatory intent motivating Respondent´s actions toward Complainant.
The Agency argues that the correct legal standard for determining whether an individual is substantially limited in employment, based on Winnett v. City of Portland, 118 Or App 437, 847 P2d 902 (1993), requires only that an impaired individual be substantially limited in the performance of a single, particular job to be considered substantially limited in "employment." In deciding Winnett, however, the Oregon Court of Appeals did not utilize or announce the standard attributed to it by the Agency. In Winnett, the City of Portland appealed the trial court´s refusal to give a jury instruction that would have defined a substantial limitation to employment as requiring limitation to employment in the work place at large -- to employment in its broadest sense. Winnett, 118 Or App at 444-45, 847 P2d at 906. Finding that its earlier opinion in Quinn v. Southern Pacific Transportation Co., 76 Or App 617, 711 P2d 139 (1985), rev den 300 Or 546, 715 P2d 93 (1986), ruled out the City´s position, the court went on to affirm a more balanced standard. Citing E.E. Black, Ltd. v. Marshall, 497 F Supp 1088 (D Haw 1980), the court observed that the US District Court for the District of Hawaii had "weighed and rejected contentions that the term ´employment´ meant ´employability generally´ and ´the employment of one´s choice with [a particular employer].´" Winnett, 118 Or App at 446, 847 P2d at 907. In following E.E. Black, Ltd., the Winnett majority stated: "We are similarly persuaded that the meaning of the term ´employment´ in ORS 659.400(2)(a) is not at either end of the spectrum." Winnett, 118 Or App at 446, 847 P2d at 907. In concluding that preclusion from the "work involved", firefighting, was a substantial limitation to employment, the Winnett court again cited, with approval, Quinn, supra, and E. E. Black, Ltd., supra. In both of these cases, a substantial limitation to employment was found because an individual was precluded from, or substantially limited in relation to, a class of jobs encompassing the individual´s chosen field. Quinn, 76 Or App at 626, 711 P2d at 139; E. E. Black, Ltd., 497 F Supp at 1099.
Regarding the particular exception presented, it is of particular significance that, in deciding Winnett, the Oregon Court of Appeals did not recant its earlier rejection of the standard now advanced by the Agency. In OSCI, supra, the Oregon Court of Appeals stated:
"The Bureau asks us to read Quinn v. Southern Pacific Transportation Co., supra, as holding that an employer treats a person as having an impairment that limits a major life activity, employment, whenever the employer refuses the person one job because of the impairment or alleged impairment. * * * The Bureau´s reading would be inconsistent with ORS 659.400(2). It also is inconsistent with the federal cases under the regulations on which the Oregon statute is based." 98 Or App at 554, 780 P2d at 747.
The correct legal standard was applied by the forum. In order to be substantially limited in employment, an individual must be unable to perform or significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes. The inability to perform, or a significant restriction in the ability to perform, a single, particular job does not constitute a substantial limitation in the major life activity of employment.
In an alternative argument, the Agency suggests that, even under the standard used by the forum, Respondent perceived Complainant to be substantially limited in employment. The Agency bases its argument upon a factual conclusion that Respondent continued to perceive that Complainant´s PTSD made him a potential danger in the workplace as late as February 1995. Because danger to oneself and others is substantially limiting in any job that involves working with others, the argument goes, Respondent´s perception that Complainant´s PTSD caused him to be a potential danger was necessarily a perception that Complainant was substantially limited in performing nearly all jobs. Without addressing other components of this argument, the failure of the factual premise alone defeats the argument. The factual premise for the argument is contrary to the facts as found by the forum, which findings were not challenged by the Agency. See Findings of Fact -- The Merits, 27 and 62. The forum has revised Finding of Fact -- The Merits, 55, to clarify the forum´s view of the evaluative request made in February 1995.
As further evidence of its theory that Respondent perceived Complainant´s PTSD as a substantially limiting impairment, the Agency cites Kostenbauer´s telephone call to Dr. Kjaer concerning long term disability in November 1994. The Agency suggests that the purpose of the call was to see if Complainant had enough mental illness to qualify for long term disability. In part, this comports with the evidence; it is however, taken out of the context of the pertinent evidence. At the time of the call, Complainant was away from work on short term disability for cellulitis. In the discussions that preceded the call to Dr. Kjaer, it was determined that, financially, 100 percent disability would be required for Complainant to leave employment on long term disability. In November 1994, Complainant had a DVA rating of 80 percent disability when the physical disability was combined with the PTSD disability rating. Kostenbauer called Dr. Kjaer to learn if any additional disability could be ascribed to PTSD to enable Complainant to go out on long term disability. When placed in context, there is no reason to believe that Kostenbauer perceived Complainant to be so impaired from PTSD that he could qualify for long term disability because of it alone. Similarly, there is no reason to believe that Kostenbauer perceived that Complainant´s PTSD, considered alone, substantially limited his ability to perform his job, a class of jobs, or a broad range of jobs. The forum has revised Finding of Fact -- The Merits, 47, and its discussion of this point in the Opinion section at p. 268, to clarify the forum´s view of the circumstances surrounding the discussion of the long term disability leave and the role Complainant´s PTSD played in that discussion.
The Agency identifies changes it would have the forum make to Ultimate Findings of Fact -- 8, 9, and 10, and proposes inclusion of an additional Finding of Ultimate Fact. In each instance, the proposed changes fail to comport with the forum´s findings of basic fact and the inferences to be drawn therefrom. The Agency has not excepted to any of the forum´s findings of basic fact. The Findings of Ultimate Fact are based on the forum´s findings of basic fact, supported by the record. The inferences drawn from those findings of fact are permissible and reasonable; they will not be disturbed.
Next, the Agency contends that the mere fact that Respondent continued to employ Complainant does not establish, in and of itself, that Respondent did not perceive Complainant as being substantially limited in employment. This, of course, is true. That Respondent continued to employ Complainant without in any way treating him as substantially limited is also true. Imposing counseling upon an employee who is experiencing severe and intractable performance problems is a permissible strategy for managing such a problem. This is so even in the case of a poorly-performing employee with an impairment which, while not substantially limiting, has some impact on performance. This strategy is particularly prudent where the psychiatrist called upon to evaluate the employee´s impairment has noted the workplace stressors and has recommended counseling. Respondent´s incorporation of Dr. Kjaer´s counseling recommendation into its performance management strategy does not mean that Respondent must have regarded Complainant as substantially limited without it, as argued by the Agency. If the Agency´s argument were accepted, an employer could do nothing to manage the performance of a poorly-performing employee with an impairment which, while not substantially limiting, has some impact on performance, because such performance management would automatically convert that individual into a disabled person under ORS 659.425(1), and make any further performance management an unlawful discriminatory act. Other than the imposition of counseling, no other act by Respondent has been identified by the Agency as reflecting treatment of Complainant´s impairment as substantially limiting or an attitude toward that impairment which renders it substantially limiting.
The Agency next disagrees with the forum´s characterization of the double bind encountered by an employer in Respondent´s situation. See Opinion, second footnote (**) on p. 269. While it is generally true that the accommodation process is initiated by an employee´s request for accommodation, an awareness of a disabling impairment by the employer, substantiated by the employee, can trigger a duty to accommodate. See Braun v. American Intern. Health, 315 Or 460, 473 n.17, 846 P2d 1151, 1159 n.17 (1993). When considered in the light of the scenario posed in the footnote, this could be such a case.
Finally, the Agency excepts to the forum´s observation, in the same footnote, that even had Complainant been a "disabled person," entitled to protection by ORS 659.425(1), the forum would have been compelled to find that ORS 659.425(1) had not been violated by Respondent, as ORS 659.425(1) requires an act of discrimination accompanied by discriminatory intent for a violation to occur. Ammann v. Multnomah Athletic Club, 141 Or App 546, 554, 919 P2d 504, 508 (1996). The Agency argues that the showing of discriminatory intent required by Amman was made by the Agency by way of evidence demonstrating Respondent´s perception that Complainant had an impairment that substantially limited his ability to work, absent counseling, after April 1994. The Agency is mistaken. The forum has found, and the findings have not been challenged, that the Complainant was sent to counseling in 1994 because of performance problems partially attributable to PTSD. At no time following the receipt of Dr. Kjaer´s report did Respondent perceive Complainant to be a danger in the workplace, or act on such a perception. At no time did Respondent perceive erroneously that Complainant was substantially limited in employment because of PTSD, or act on such a perception. In sending Complainant to counseling, Respondent was not motivated by a discriminatory intent. See Findings of Fact -- The Merits, 26 through 62; Opinion, pp. 267-70
As the exceptions are not well taken, the ultimate findings of fact, conclusions of law, opinion, and order will stand.
NOW, THEREFORE, as Respondent has not been found to have engaged in any unlawful practice charged, the Complaint and the Amended Specific Charges filed against Respondent are hereby dismissed according to the provisions of ORS 659.060(3).
The combined evaluation of disability for all service-connected conditions is not arrived at by adding percentages of the disabilities, but is determined by reference to a combined rating table.
No evidence was submitted concerning the reason for reversion to storeroom clerk between March and May of 1993. Due to the short time frame and absence of an entry in Complainant´s personnel file, the forum infers it was merely a title reversion.
No evidence was submitted concerning the responses of Dr. Kjaer, if any, to the questions posed in Kostenbauer´s letter of February 3, 1995. The forum infers that this request was made by Kostenbauer in connection with Complainant´s probationary performance review under the terms of the last chance agreement. Complainant was in a different job, his performance was unsatisfactory, and one and one-half years had elapsed since Dr. Kjaer´s last evaluation.
ORS 659.425(1), when read in conjunction with ORS 659.400(1) and (2).
There is no evidence that Respondent was aware of this diagnosis until August 1993.
Even if the level of disability rating ascribed to Complainant was sufficient to establish that Complainant had a history of an impairment that substantially limited one or more of his major life activities, Respondent did not become aware of Complainant´s diagnosis until August 1993, when Respondent´s concern was with Complainant´s current behavior and work performance, in relation to present effects from the impairment. There is no evidence in the record that Respondent had access to the actual DVA record at any time. Respondent had Complainant evaluated independently in October 1993, and relied upon that record -- that diagnosis, evaluation of current functioning, and accompanying recommendations -- in responding to the concerns of management personnel. In this instance, when the gravamen of Complainant´s allegations concern his current condition, the better theory of protected class membership is ORS 659.400(2)(c), protected from discrimination by ORS 659.425(1)(c). See, e.g., In the Matter of Glenn Walters Nursery, Inc., 11 BOLI 32, 41 (1992).
Clearly, it is not preclusion from or significant restriction in the ability to perform just any class of jobs that is significant; the individual must have some relevant connection to the identified class of jobs. One such connection might be to a class of jobs encompassing the individual´s chosen field. E.E. Black, Ltd. v. Marshall, 497 F Supp 1088 (D. Haw. 1980). For an individual without a clear career direction or who is changing career paths, the connection could be to a class of jobs encompassing the type of labor sought or obtained (i.e., manual labor requiring heavy lifting).
OAR 839-06-205(2) reads: "The attitude of others toward such impairment" means an opinion, evaluation, or belief, held by another person or persons toward the individual´s perceived or actual physical or mental impairment."
There is no evidence that this determination was relayed to Kostenbauer; nonetheless, this conclusion is attributable to Respondent.
No evidence of Dr. Kjaer´s response, if any, was introduced.
Once Complainant relied upon his worsening PTSD to explain his deteriorating job performance, and Respondent, in connection with a medical evaluation confirming the diagnosis, received the recommendation for counseling, Respondent was, essentially, in a double bind. If, as time passed after October 1993, the worsening PTSD was impairing Complainant´s ability to perform his job, as Complainant initially asserted, and Respondent did not accommodate with the recommended counseling, Respondent could be in violation of ORS 659.425(1)(a); if, on the other hand, the worsening PTSD was not impairing Complainant´s ability to perform the job as time passed after October 1993, as it apparently was not at the time of Dr. Kjaer´s report in October 1993, Respondent could face a possible violation of ORS 659.425(1)(c) by requiring the counseling recommended in the same report. Respondent was presented with a Hobsen´s choice. Nothing in the statutes or the legislative history indicates that the legislature intended employers to face that kind of dilemma in seeking to comply with the provisions of ORS 659.425(1). See, e.g., Braun v. American Intern. Health, 315 Or 460, 472-73, 846 P2d 1151, 1158-59 (1993). In choosing to assist Complainant to keep his job, at a time when Complainant was not assisting himself, Respondent´s acts should not be draped automatically in the cloak of discrimination. Indeed, the record is replete with evidence that Respondent went to great lengths to assist Complainant, even beyond the time he lawfully could have been fired. Even had Complainant been a "disabled person", entitled to protection by ORS 659.425(1), the forum would have been compelled to find that ORS 659.425(1) had not been violated by Respondent. ORS 659.425(1) requires an act of discrimination accompanied by discriminatory intent for a violation to occur. Ammann v. Multnomah Athletic Club, 141 Or App 546, 554, 919 P2d 504, 508 (1996).
For the purpose of determining whether there is a substantial limitation to employment, the Agency suggests that it is Agency policy, based upon Winnett, supra, to construe "employment" to mean the particular job performed by the individual. Winnett does not support such a policy. Agency policy on this issue is better reflected by the OSCI Final Order on Remand, In the Matter of Oregon State Correctional Institute, 9 BOLI 7, 35 (1990), on remand, OSCI, supra, and, following March 12, 1996, by the adoption of OAR 839-006-0205(4).
In OSCI, supra, the Oregon Court of Appeals had already interpreted Quinn as rejecting an interpretation of "employment" which would equate the inability to perform (or significant restriction in the ability to perform) a single, particular job with a substantial limitation in the major life activity of employment. 98 Or App at 554, 780 P2d at 747.
Confusion over the meaning of Winnett may be the result of the court importing the language "the performance of the work involved" into its discussion of the meaning of a substantial limitation to employment for perceived disabilities. When the language "the performance of the work involved" is taken out of the context in which it was used by the court, it may mistakenly be understood to mean a single, particular job.
After observing that ORS 659.400 had been interpreted as a unit in OSCI, supra, such that "regarded as having a physical or mental impairment", in ORS 659.400(1), was construed to mean "the person must be regarded as having an impairment that substantially limits a major life activity," the court turned to ORS 659.425 to discern the limitation which must be present when the major life activity is employment. After observing that the provisions of ORS 659.425 also must be construed as a unit, despite minor variations in wording, the court engrafted the operative language of ORS 659.425(1)(a), concerning actual disability, onto the language of ORS 659.425(1)(c), to flesh out a parallel construction for perceived disabilities when the major life activity is employment. Winnett, 118 Or App at 447, 847 P2d at 907. ORS 659.425(1)(a) provides, in pertinent part, that an employer may not discriminate because an individual has a physical or mental impairment which does not prevent the performance of the work involved. ORS 659.425(1)(c), as written, provides that an employer may not discriminate because an individual is regarded as having a physical or mental impairment. Put into language parallel to ORS 659.425(1)(a), paragraph (c) would provide that an employer may not discriminate because an individual is regarded as having a physical or mental impairment which does not prevent the performance of the work involved. Put another way, into the context of substantial limitation to employment, which is what the court was aiming for, an individual who is regarded as having a physical or mental impairment that substantially limits the performance of the work involved is a person who is regarded as having an impairment that substantially limits employment. Winnett, 118 Or App at 447, 847 P2d at 907.
The court´s intended purpose -- arriving at a definition for substantial limitation to employment for perceived disabilities which was parallel to a definition for substantial limitation to employment in cases of actual disabilities -- was met. Unfortunately, the court´s reference to "the performance of the work involved" in its analysis has resulted in mistaken interpretations of Winnett.
The Agency bases its premise on the fact that, as late as February 1995, Kostenbauer directed evaluative questions to Dr. Kjaer, which included one question about the existence of underlying mental or emotional issues which could cause Complainant to be a danger to himself or others. The Agency overlooks the central purpose of Kostenbauer´s request for information. In February 1995, Complainant was nearing the end of a last chance probationary period. One and one-half years had elapsed since Dr. Kjaer´s evaluation. Complainant was working in a different job, but was continuing to perform poorly. Prudently, Respondent was ruling out a change in Complainant´s condition which may have required accommodation prior to judging and taking action on Complainant´s probationary status. If such a change were present, termination, without exploration of the possibility of a reasonable accommodation, would have violated ORS 659.425(1)(a).
That a question concerning dangerousness was included in 1995 does not mean that Respondent regarded Complainant as a danger or potential danger at that time. Given employer liability for workplace violence and the mixed reasons prompting the initial evaluation, inclusion of such a question at a time of renewed evaluation does not seem unusual. The information sought in 1995 was parallel to that sought in the initial evaluation. See Findings of Fact -- The Merits, 23.
A violation of ORS 659.425 could occur with the imposition of a negative term or condition of employment even though the impaired employee was not suspended or terminated. One example would be removal of a job duty from an impaired employee because of a misperception of the existence or extent of limitation. It is also worth noting that not all protection from onerous or intrusive terms and conditions of employment for impaired employees reposes in ORS chapter 659. For example, privacy rights may be implicated in the requirement of counseling and disclosure, by report, of the contents of the counseling sessions. See, e.g., Pettus v. Cole, 57 Cal Rptr 2d 46, 1996 WL 518068 (As Modified on Denial of Rehearing Oct. 15, 1996).