Philip Bentivegna v. United States Department of Labor, and City of Los Angeles, Real Party in Interest

We review the decision of the Secretary of the Department of Labor for the United States declining to award back pay to petitioner, Philip Bentivegna. For the reasons set forth below, we reverse.

I. FACTS AND PROCEDURAL CONTEXT

The City of Los Angeles (City) hired Bentivegna as a “building repairer” in late August, 1977, through the Comprehensive Employment and Training Act (CETA) program. 29 U.S.C. §§ 801-999 (1976 & Supp. IV 1980). Bentivegna had indicated on an application form that he had diabetes mellitus. As a condition of employment, applicants were required to pass a physical examination. Applicants with diabetes were required to demonstrate “control,” meaning blood sugar test results consistently below a certain level. At Bentivegna’s physical examination, one test yielded a urine glucose reading of “4 +,” which the City’s physicians believed demonstrated, or at least raised a significant possibility of, lack of control. Consequently, Bentivegna was terminated from his position in early September.

Bentivegna petitioned the City Medical Review Board for review of his termination. After this petition was denied, Bentivegna took his case to the Los Angeles Civil Service…

dissenting:

I dissent because this case is straightforward, calling for a simple application of the standard of review. 29 U.S.C. § 817 (b) provides in part, “The findings of fact by the Secretary [of Labor], if supported by substantial evidence, shall be conclusive.... ” This standard has here been met and I would accordingly affirm the decision of the Secretary denying back pay to Bentivegna.

The Supreme Court in the leading case, Southeastern Community College v. Davis, 442 U.S. 397 , 99 S.Ct. 2361 , 60 L.Ed.2d 980 (1979), discusses the language of § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1981). The statute applies to Federal financially assisted programs and is not limited to educational establishments. Though there are differences between Southeastern and this case, those differences do not affect the application of the reasoning in Southeastern here. The Court granted certiorari “because of the importance of this issue to the many institutions covered by § 504.” 442 U.S. at 404 , 99 S.Ct. at 2366 , 60 L.Ed.2d at 987 . In my opinion, the Supreme Court intended to *624 adopt a general rule for application to § 504 suits. We should not be prone to probe for…

694 F.2d 619 30 Fair Empl.Prac.Cas. 875 , 30 Empl. Prac. Dec. P 33,211 , 1 A.D. Cases 403 Philip BENTIVEGNA, Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, Respondent, and City of Los Angeles, Real Party in Interest. No. 81-7651. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 6, 1982. Decided Dec. 13, 1982. David Pettit, Venice, Cal., for petitioner. James A. Henry, Dept. of Labor, Washington, D.C., argued, for respondent; Joanne Tierstein, U.S. Dept. of Labor, Washington, D.C., on brief. Petition for Review of Final Determination of United States Secretary of Labor. Before ANDERSON, FERGUSON, and NELSON, Circuit Judges. NELSON, Circuit Judge: 1 We review the decision of the Secretary of the Department of Labor for the United States declining to award back pay to petitioner, Philip Bentivegna. For the reasons set forth below, we reverse. I. FACTS AND PROCEDURAL CONTEXT 2 The City of Los Angeles (City) hired Bentivegna as a "building repairer" in late August, 1977, through the Comprehensive Employment and Training Act (CETA) program. 29 U.S.C. Secs. 801-999 (1976 & Supp. IV 1980). Bentivegna had indicated on an application form that he had diabetes…