Consolidated Rail Corporation v. LeStrange Darrone Joint Appendix

    No. 82-862

IN TH E

SUPREME COURT OF THE UNITED STATES

October Term, 1982

Consolidated Rail Corporation,
Petitioner

v.
Lee Ann LeStrange Darrone, as Administratrix 

of the Estate of Thomas LeStrange,
Respondent

On Writ of Certiorari to the 
United States Court of Appeals 

for the Third Circuit

JO INT A P P E N D IX

Petition for Certiorari filed November 22, 1982 
Certiorari granted February 22, 1983

JO SEPH  P. LENAHAN* 
P.O. Box 234
Scranton Electric Building 
507 Linden Street 
Scranton, PA 18503 
(717) 346-2097

Attorney for R espondent 
Thom as LeStrange

HARRY A. RISSETTO* 
THOMAS E. REIN ERT 
D. M ICHAEL U N D ERH ILL 
1800 M Street, N.W. 
W ashington, DC 20036 
(202) 872-5084

D EN N IS J. MORIKAWA 
K EN N ETH  D. KLEINMAN 
2100 The Fidelity Building 
123 S. Broad S treet 
Philadelphia, PA 19109

D EN N IS ALAN AROUCA 
1138 Six Penn C enter 
Philadelphia, PA 19104

Attorneys for Petitioner
Consolidated Rail Corporation

Counsel of Record



No. 82-862

IN TH E

SUPREME COURT OF THE UNITED STATES

October Term , 1982

C O N SO LID A TED  RAIL CO RPORATION,
Petitioner

v.
Lee Ann Le Strange Darrone, as Administratrix 

of the Estate of Thomas LeStrange
Respondent

On Writ of Certiorari to the 
United States Court of Appeals 

for the Third Circuit

JO INT A P P E N D IX

TABLE OF CONTENTS
Page

Chronological List of Relevant Docket Entries . . A-4
Plaintiffs Amended Complaint, filed October 26,

1979 .............................................................................. A 5

D efendant’s Answer, filed Decem ber 11, 1980 . . A-10
D efendant’s Motion for Sum m ary Judgm ent, filed 

Septem ber 11, 1981 ...............................................A-13

A-l



TABLE OF CONTENTS—(Continued)

Affidavit of Richard Semerad, dated Septem ber 10, 
1981, attached to D efendant’s Motion for Sum ­
mary Judgm ent ........................................................

Plaintiff’s Exhibit A — Conrail 1980 seniority ros­
ter for Engine Service, Seniority District G — at­
tached to Plaintiffs Brief in Opposition to Motion 
for Sum m ary Judgm ent, filed Septem ber 15, 
1981 .............................................................................

P laintiffs Exhibit B — Conrail 1979 seniority ros­
ter for Engine Service, Seniority District G — at­
tached to Plainitff s Brief in Opposition to Motion 
for Sum m ary Judgm ent .......................................

Plaintiff’s Exhibit C — Conrail Engineer Roster for 
Hoboken second and third subdivision — at­
tached to Plaintiff s Brief in Opposition to Motion 
for Sum m ary Judgm ent .......................................

P laintiffs Exhibit D — Affidavit of Thomas 
LeStrange, dated Septem ber 25, 1981 — at­
tached to Plaintiffs Brief in Opposition to Motion 
for Sum m ary Judgm ent .......................................

Affidavit of Jam es P. Leach, dated October 2, 1981, 
attached to D efendant’s Response to Plaintiff’s 
Brief in Opposition to Motion for Summary 
Judgm ent, filed October 5, 1981 .......................

D efendant’s A ttachm ent No. 1 — Notice of Con­
tinuation of Em ploym ent — attached to Defen­
dan t’s Response to Plaintiffs Brief in Opposition 
to Motion for Sum m ary Judgm ent .....................

D efendant’s A ttachm ent No. 2 — ICC W age Sta­
tistics form B for April 1976 — attached to De­
fendan t’s Response to Plaintiffs Brief in Opposi­
tion to Motion for Sum m ary Judgm ent ...........

Page 

A-15

A-18 

A-20 

A-22 

A-23 

A-24 

A-27 

A-30

A-2



TABLE OF CO NTEN TS—(C ontinued)

Page
D efendant’s A ttachm ent No. 3 — ICC W age Sta­

tistics form B for 1980 — attached to D efen­
d an t’s Response to Plaintiff’s Brief in Opposition
to Motion for Sum m ary Judgm ent ..................... A-31

Opinion of the Court of A p p e a ls .............................. A-32

The following opinions, decisions, judgm ents, and 
orders have been om itted in printing this appendix be­
cause they appear on the following pages in the appen­
dix to the printed Petition for a W rit of Certiorari:
Opinion of the District Court denying D efendant’s 

Motion to Dismiss ...................................................... A-53
Order of the District Court dated November 4,

1980 ................................................................................ A-64
Opinion of the District Court, granting Defen­

d an t’s Motion for Sum m ary Judgm ent ................ A-25
Order of the District Court, dated October 20, 1981 A-52
Amended Judgm ent of the District Court, entered 

on O ctober 26, 1981 ................................................. A-65
Judgm ent of the Court of Appeals, entered on Sep­

tem ber 1, 1982  A-66



A-4

CHRONOLOGICAL LIST OF 
RELEVANT DOCKET ENTRIES

Septem ber 22, 1978 — Plaintiff LeStrange’s com­
plaint filed in United States District Court for the Middle 
District of Pennsylvania.

October 26, 1979 — Plaintiffs Amended Complaint 
filed.

D ecem ber 3, 1979 — Motion to Dismiss filed by De­
fendant Consolidated Rail Corporation.

November 4, 1980 — Order of Judge Rambo en ­
tered, granting D efendant’s Motion to Dismiss Plaintiff s 
claims based upon the Equal Protection Clause of the 
Fourteenth Am endm ent and the Civil Rights Act, 42 
U.S.C. §1983, and denying Defendant’s Motion to Dis­
miss Plaintiffs claim based upon §504 of the Rehabilita­
tion Act of 1973, 29 U.S.C. §794.

Decem ber 11, 1980 — D efendant’s Answer to Plain­
tiff’s Amended Complaint filed.

Septem ber 11, 1981 — D efendant’s Motion for 
Summ ary Judgm ent filed.

October 20, 1981 — Order of Judge Rambo entered, 
granting D efendant’s Motion for Summ ary Judgm ent on 
the issue of Plaintiff’s standing to bring a private action 
under Section 504 of the Rehabilitation Act of 1973.

October 26, 1981 — Amended Judgm ent of District 
Court entered.

November 19, 1981 — Plaintiff’s notice of appeal 
filed.

Septem ber 1, 1982 — Opinion and Judgm ent of the 
Court of Appeals for the Third Circuit.



A-5

IN TH E UNITED STATES DISTRICT COURT 
FOR TH E M IDDLE D ISTRICT OF PENNSYLVANIA

Thomas LeStrange, :

P la in tiff

v.

Consolidated Rail Corp.,

Defendant

CIVIL ACTION 
No. 78-944 
Jury Trial 
Demanded

AMENDED COMPLAINT
Now comes Plaintiff by his attorneys, Lenahan, 

Dempsey & Piazza, and for his Amended Complaint 
states the following:

1. Plaintiff, Thom as LeStrange is a handicapped in­
dividual, who resides at 1422 Olive Street, Scranton, 
Pennsylvania.

2. Defendant, Consolidated Rail Corporation 
(Conrail) is a railroad corporation duly organized and ex­
isting under and by virtue of the laws of the United 
States of America, specifically 45 U.S.C. Section 701, et. 
seq., and 45 U.S.C. Section 801, et. seq.; Conrail is pres­
ently doing business within the jurisdiction of this Court 
as an interstate Common Carrier with its local office lo­
cated at 613 North Elm er Avenue, Sayre, Pennsylvania;

3. This aciton [sic] is based upon a violation of the 
equal protection clause of the Fourteenth Amendment 
to the Constitution of the United States, 42 U.S.C. Sec­
tion 1973, and 29 U.S.C. 794, commonly referred to as 
the “Rehabilitation Act of 1973” (as am ended)

4. Subject m atter jurisdiction is conferred upon 
this Court by virtue of 28 U.S.C. Section 1343(3), 28 
U.S.C. Section 1331(a) and 42 U.S.C. Section 1983.



A-6

Conrail, as a recipient of Federal financial assistance, is 
subject to the jurisdiction of the “Rehabilitation Act of 
1973”, as aforesaid.

COUNT ONE
5. The plaintiff incorporates by reference all of the 

allegations contained in paragraphs one through four, 
inclusive, as though the sam e were fully set forth at 
length herein.

6. On M arch 17, 1971, plaintiff suffered the am pu­
tation of his left hand and a portion of his left forearm. 
Prior to that time, the plaintiff had been employed as a 
Locomotive Engineer with the Erie Lackaw anna 
Railroad.

7. On April 17, 1971, plaintiff reported for work as 
an engineer with the Erie Lackaw anna Railroad but was 
refused em ploym ent w ithout a medical evaluation or a 
hearing.

8. D uring 1973, Conrail becam e a successor in in ­
terest to the Erie Lackaw anna Railroad and the defend­
ant refused to employ the plaintiff w ithout medical eval­
uation or hearing.

9. From 1973 to April 4, 1978, the defendant re­
fused to employ the plaintiff in any capacity and said re­
fusal was m ade w ithout benefit of m edical evaluation or 
hearing, even though the plaintiff was at all times ready, 
willing and able to work as an engineer.

10. On April 4, 1978, Conrail authorized a medical 
exam ination for the plaintiff to determ ine his employ- 
ability. On May 2, 1978, the defendant, w ithout a hear­
ing, classified the plaintiff as not qualified for the occu­
pation of engineer.

11. From 1973 to the present, the plaintiff has re­
peatedly requested  to be re-employed as a Locomotive 
E ngineer and has. in the alternative, requested that a 
hearing be held to determ ine his fitness for the aforesaid 
position. All of said requests have been summarily de­



A-7

nied by the defendant. At the present time, the plaintiff' 
rem ains ready, willing and able to return  to work.

W HEREFORE, plaintiff dem ands judgm ent 
against the defendant as follows:

1. Enjoining the defendant from continuing in 
its discriminatory hiring practices of refusing to hire 
qualified handicapped individuals;

2. Reinstatem ent of plaintiff in his former em ­
ployment position or the equivalent thereof;

3. For a sum  of money equal to plaintiffs full 
back pay, including regular periodic increases allot­
ted to his position;

4. Attorney’s fees, costs, and such other relief 
as the Court believes proper.

COUNT TWO
12. Plaintiff incorporates by reference all of the al­

legations contained in Paragraphs One through Eleven, 
inclusive, as though the same were fully set forth at 
length herein.

13. On February 15, 1979, Conrail scheduled a 
field test for the plaintiff in order to determ ine w hether 
the plaintiff could perform the duties of a yard engineer.

14. The field test created by ConRail to determ ine 
Plaintiffs employability as a yard engineer was willfully 
and purposely prepared in such a m anner so as to insure 
Plaintiffs failure, in that the test:

(a) contained duties which were rarely or 
never performed by a yard engineer;

(b) contained duties which were performed 
with the assistance of other railroad em ­
ployees;

(c) was created with special duties which 
could only be performed by an individual 
with full use of both hands.



A-8

15. N otw ithstanding the unusual duties included 
in the field test as aforesaid, the plaintiff was able to per­
form substantially all of these duties and particularly, 
those duties w hich are normally perform ed by a yard en ­
gineer.

16. Due to the num erous irregularities of the first 
field test, a second, revised, field test was to exclude 
those duties not normally perform ed by a yard engineer 
and it was to be adm inistered by different ConRail offi­
cials. F urther, the second test was to be adm inistered on 
a yard engine and not on the locomotive used outside of 
the yard.

17. The second field test was willfully and pu r­
posely created in order to disqualify the plaintiff as a yard 
engineer in that:

(a) the test was to be adm inistered by the same 
individuals who adm inistered the first test;

(b) certain  railroad equipm ent, to be used in 
the test, was concealed or placed in inac­
cessible areas;

(c) plaintiff was inform ed that his failure to 
com plete all of the duties in the first test 
would insure his failure on the second test;

(d) plaintiff was to be tested on three different 
locomotives, ra ther than  on the locomotive 
normally used in the railroad yard.

18. By virtue of all of the foregoing irregularities, 
plaintiff refused to subm it to the second test created by 
the defendant.

19. The defendant has since 1973 willfully and m a­
liciously delayed the scheduling of medical exam ina­
tions for the plaintiff and has also ignored the various 
m edical reports w hich released the plaintiff for work.

20. The defendant has maliciously, willfully and 
purposely discrim inated against the plaintiff since 1973. 
solely because the plaintiff is handicapped. Despite the 
fact that the plaintiff has at all times been ready, willing



A-9

and able to re tu rn  to gainful employment with Conrail, 
the defendant has refused to rehire the plaintiff as an en ­
gineer.

W H EREFO RE, the plaintiff, Thom as LeStrange, 
requests that This Court m ake an award of punitive 
dam ages in addition to the relief sought in Count One.

Lenahan, Dempsey & Piazza

B y ----------------------------------------------
William J. Dempsey



A-10

IN THE UNITED STATES DISTRICT COURT 
FOR TH E M IDDLE D ISTRICT OF PENNSYLVANIA

Thom as LeStrange :

Plaintiff, :

CIVIL ACTION

CO N SO LID A TED  RAIL  
C o r p o r a t i o n

No. 78-944

Defendant

ANSWER OF DEFENDANT 
CONSOLIDATED RAIL CORPORATION 

TO PLAINTIFF’S AMENDED COMPLAINT
Comes now defendant Consolidated Rail Corpora­

tion (hereinafter “C onrad”) and answers plaintiffs 
am ended com plaint as follows.

FIRST DEFENSE
1. Denied.
2. Admitted.
3. Admitted that plaintiff purports to bring this ac­

tion under statutes referred to In paragraph 3 but denied 
that said action is properly brought under those statutes.

4. Admitted that plaintiff purports to bring this ac­
tion under statu tes referred to in paragraph 4 but denied 
that said action is properly brought under those statutes.

5. D efendant Conrad incorporates the answers to 
paragraphs 1 through 4 above, as if fudy set forth herein.

6. Admitted that plaintiff was formerly employed 
by the Erie-Lackaw anna Radroad. Defendant Conrad 
lacks knowledge to respond to the balance of the aver­
m ents in this paragraph.



A l l

7. D efendant Conrail lacks knowledge to respond 
to the averm ents in  this paragraph.

8. Denied.
9. Denied.

10. Denied.
11. Denied.
12. D efendant Conrail incorporates the answers to 

paragraphs 1 through 11 above, as if fully set forth 
herein.

13. Admitted.
14. Denied.
15. Denied.
16. Denied.
17. Denied.
18. Denied.
19. Denied.
20. Denied.

SECOND DEFENSE
This court lacks subject m atter jurisdiction over 

p laintiffs complaint.

THIRD DEFENSE
Plaintiffs am ended complaint fails to state claim 

upon w hich relief can be granted by this court.

FOURTH DEFENSE
Plaintiff has failed to exhaust administrative rem e­

dies under the Railway Labor Act, 45 U.S.C.A. 
§151-188.

FIFTH DEFENSE
D efendant Conrail is not a successor in interest to 

the Erie-Lackaw anna Railroad by virtue of the Regional 
Rail Reorganization Act of 1973, 45 U.S.C.A. §701 et 
seq., and other applicable law.



A-12

SIXTH DEFENSE
Plaintiff has failed to join a person, the Erie-Lacka- 

w anna Railroad, in whose absence complete relief can­
not be accorded to plaintiff.

Respectfully submitted,

Dennis Alan Arouca 
1138 Six Penn Center 
Philadelphia, PA 19104 
215-977-4996

Lorraine C. Staples 
1138 Six Penn Center 
Philadelphia, PA 19104 
215-977-4996

Cody H. Brooks 
H enkelm an, Krader,

O ’Connell & Brooks 
200 Bank Towers 
Spruce Street & W yoming Ave. 
Scranton, PA 18501 
717-346-7922



A-13

UNITED STATES DISTRICT COURT 
FOR T H E  M IDDLE DISTRICT OF PENNSYLVANIA

Thomas LeStrange, :

P la in tiff

v.

Consolidated Rail 
Corporation,

CIVIL ACTION 

No. 78-944

Defendant

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
P ursuan t to Rule 56 of the Federal Rules of Civil 

Procedure, defendant Consolidated Rail Corporation 
moves the Court for sum m ary judgm ent in its favor on 
the issue of plain tiff s standing to bring a private action 
under Section 504 of the Rehabilitation Act of 1973. 
Summ ary judgm ent in Conrail’s favor is appropriate be­
cause, as set out in the accompanying M emorandum of 
Law, plaintiff cannot show either that (1) the primary 
objective of federal financial assistance to Conrail is to 
provide employm ent or (2) that he is a primary benefi­
ciary of a federally funded program which has a primary 
objective of providing employment.

Respectfully submitted,

Lorraine C. Staples 
1138 Six Penn Center Plaza 
Philadelphia, PA 19103
(215) 977-1854



A-14

Cody H. Brooks 
H enkelm an, Kreder, O ’Connell & 

Brooks
200 Bank Towers 
Spruce Street & Wyoming Avenue 
Scranton, PA 18501 
(701) 346-7922 

A ttorneys fo r  Defendant 
Consolidated Rail 

Corporation

OF COUNSEL:

Morgan, Lewis & Bockius



A-15

COM M ONW EALTH OF PENNSYLVANIA

C o u n t y  o f  P h i l a d e l p h i a
ss

I, RICHARD SEMERAD, being duly sworn, depose 
and say as follows:

1. 1 am the D irector-Investm ents and Collec­
tions for Consolidated Rail Corporation with offices 
at 1300 Six Penn C enter Plaza, Philadelphia. Penn­
sylvania.

2. In this capacity, I am responsible for prepara­
tion of forecasts used in periodic requests to the 
United States Railway Association (USRA) for dis­
bursem ents under the Regional Rail Reorganization 
Act of 1973 (the Rail Act) and am familiar with the 
use to w hich funds received are put.

3. I have held my present position since Octo­
ber, 1977 and have been directly or indirectly re­
sponsible for the preparation of such forecasts since 
April, 1976. Prior to that time, I was an employee of 
Penn Central working on loan as controller of a 
company under contract with Penn Central to liqui­
date non-rail properties of the railroad.

4. U nder the Rail Act, Conrail has received the 
following sum s of money from the USRA:

(a) $317,800,000.00 under Title V; and
(b) $3.28 billion under §216.

5. All money received under Title V was a reim ­
bursem ent to Conrail for money paid out by Conrail 
pursuan t to the employee protective benefits im ­
posed on Conrail by Title V.

6. Federal funds received under §216 were 
used to update Conrail’s facilities and equipm ent, to 
pay principal and interest on outstanding debt 
obligations and to cover the operating expenses not 
m et by operating revenues.



7. Exhibit A, attached hereto, sets forth the use 
of §216 money received by Conrail as of M arch 31. 
1981.

8. All §216 money received by Conrail since 
M arch 31 has been spent in the same general cate­
gories.

9. Money received to reim burse Conrad’s loss 
on Operations, along with cash generated by Oper­
ations, is used to m eet day-to-day operating ex­
penses. A specific accounting of the final use of 
each federal dollar allocated to that category would 
therefore be impossible.

RICHARD SEMERAD

Sworn to and subscribed be­
fore me this 10th day of 
Septem ber, 1981.

Notary Public



A-17

EXHIBIT A

•  CONRAIL BORROW ED $3,200,000 FROM USRA 
THROUGH 3/31/81.

•  FROM TH ESE BORROWINGS, TH E FOLLOWING 
EXPENDITURES W ERE MADE:

THROUGH
3/31/81

TRACK REHABILITATION .............................$1,453
A&I WORK ........................................................  463
INSTALLM ENT OF EQUIP. D E B T ...........  610
EQ U IPM EN T IM PROVEM ENTS ..............  197
CASH LOSS ON O PE R A T IO N S................... 631
PROPERTY SALES & OTHER ITEMS . , . __ (154)

TOTAL BORROWINGS ..........................$3,200



A-18

CONSOLIDATED RAIL CORPORATION 
SENIORITY ROSTER 1980 

ENGINE SERVICE — SENIORITY DISTRICT “G”

Exhibit A

E m p lo y e e  
Rank N am e

E m p lo y e e
N u m b e r

P r io r
R R

P r io r
R ig h ts
R o s te r

P r io r
S e n io r i ty

D a te

Conrail
F ire m a n

D a te

C o n ra il
E n g in e e r

D a te

937 K linger BF 066066 PC 0028 11/04/42 4/01/76 4/01/76
938 Z eig ler BH 066624 PC 0028 11/04/42 4/01/76 4/01/76
939 M iller JP 864561 RDG 0002 11/10/42 4/01/76 4/01/76
940 W ells HJ 864563 RDG 0002 11/10/42 4/01/76 4/01/76
941 M arter CA 066151 PC 0028 11/11/42 4/01 7 6 4/01 76
942 Casey JJ 022847 PC 0029 11/18/42 4/01/76 4/01/76
943 L inds trom JH 025310 PC 0029 11/18/42 4/01/76 4/01/76
944 Jones TE 087391 PC 0012 11/21/42 4/01/76 4/01/76
945  O w ens W F 046201 PC 0013 11/24/42 4/01/76 4/01/76
946 H arrison W E 087293 PC 0012 12/02/42 4/01/76 4/01/76
947  C am pbell j 024839 PC 0029 12/04/42 4/01/76 4/01/76
948 Patterson FG 853453 LV 0003 12/12/42 4/01/76 4/01/76
949 M itchell JS 087619 PC 0012 12/14/42 4/01/76 4/01/76
950  Jefferies JW 066000 PC 0028 12/16/42 4/01/76 4/01/76
951 I’errasi u 023161 PC 0029 12/21/42 4/01/76 4/01/76
952 Boyd LJ 086907 PC 0012 12/22/42 4/01/76 4/01/76
953  S choffner RE 864566 RDG 0001 12/23/42 4/01/76 4/01/76
954 M ignanelli A 023024 PC 0029 12/23/42 4/01/76 4/01/76
955  W alter PE 025838 PC 0029 12/28/42 4/01/76 4 /0 1'76
956 K rout DB 087465 PC 0012 12/28/42 4/01/76 4/01/76
95 7 Kasson TD 025220 PC 0029 12/28/42 4/01/76 4/01/76
958 W arrenfe ltz MG 087999 PC 0012 12/31/42 4/01/76 4/01/76
959 C layton RO 024880 PC 0029 1/11/43 4/01/76 4/01/76
960 C om inski W E 024894 PC 0029 1/14/43 4/01/76 4/01/76
961 Sw isher W D 066514 PC 0028 1/14/43 4/01/76 4/01/76
962  W icks SW 876533 C N J 0002 1/15/43 4/01/76 4/01/76
963 S c h u s te r s 023132 PC 0029 1/22/43 4/01/76 4/01/76
964 D ressier GH 853435 LV 0003 1/30/43 4/01/76 4/01/76
965 H averty AP 082180 PC 0011 2/02/43 4/01/76 4/01/76
966  F ran ch in o D 896770 EL 0488 2/03/43 4/01/76 4/01/76
967 M aguire RT 046022 PC 0013 2/11/43 4/01/76 4/01/76
968 Sipple JP 892343 EL 0488 2/11/43 4/01/76 4/01/76
969 Lobichusky, Sr. JJ 025316 PC 0029 2/12/43 4/01/76 4/01/76
970 Jobes FC 031043 PC 0014 2/16/43 4/01/76 4/01/76
971 Pepper G 882142 EL 0487 2/19/43 4/01/76 4/01/76
972 E n sm in g e r HR A00830 PC 0028 2/24/43 4/01/76 4/01/76
973 A rm strong, Jr. ES 065515 PC 0028 2/24/43 4/01/76 4/01/76
974 F u ller RD 897035 EL 0488 2/27/43 4/01/76 4/01/76
975 Donley WB 045713 PC 0013 3/03/43 4/01/76 4/01/76
976 Lillibridge LS 010003 EL 0494 3/03/43 4/01/76 4/01/76
977 R uss CH 025631 PC 0029 3/06/43 4/01/76 4/01/76
978 Su lzbach HC W 00226 EL 0494 3/08/43 4/01/76 4/01/76



A-19

979 Gore CE W 00227 EL
980 D urvea EH W 00228 EL
981 M agee J 046018 PC
982 Post RT 025571 PC
983 H ow ell RH W 00229 EL
984 H eins WA 022949 PC
985 Ross FR W 00230 EL
986 Brosky M 876614 C N J
987 Hollow ay RL 031035 PC
988 M artin SS 864574 RDG
989 R ead inger CE 864473 RDG
990 P ardee D 025528 PC
991 M ullen RJ 864978 RDG
992 T u n n e y J F 896791 EL
993 M ulrooney JG 897030 EL
994 R eu th e r EG 896788 EL
995 C hickello A 010004 EL
996 W etm ore H 897022 EL
997 K arabin G 010005 EL
998 M illard. Jr. CY 896776 EL
999 L es tran g e TJ W 00231 EL

1000 O lexv SF 895682 EL
1001 B u rk h a rt JS 895680 EL
1002 Evans VVD 010006 EL
1003 Scott AC 882061 EL
1004 Preston JR 895681 EL
1005 V anslooten H 882062 EL
1006 Kellogg RL 895671 EL
1007 Balas, Jr. PG 024748 PC
1008 K eister. Jr. JL 066030 PC
1009 Bailey GC 300102 PRSL
1010 Sullivan . Jr. JJ 882063 EL
1011 B oshek JA 895580 EL
1012 S tarling W D 882064 EL
1013 H rvn JJ 025176 PC
1014 G alanot EL 025063 PC

0494 3/09/43 4/01/76 4/01/76
0494 3/16/43 4/01/76 4 /01/76
0013 3/16/43 4/01 76 4/01 76
0029 ? 23 43 4/01/76 4/01/76
0494 3/23/43 4/01/76 4/01,76
0029 3/25/43 4/01/76 4/01/76
0494 3/25/43 4/01/76 4/01/76
0002 3/28/43 4/01/76 4/01/76
0014 3 30 43 4 01/76 4 /01/76
0003 3/30/43 4 01/76 4 /01/76
0002 4/21/43 4/01/76 4/01,76
0029 4/26/43 4/01/76 4/01/76
0003 5 01/43 4 /01/76 4/01/76
0493 4/01/43 4 01/76 4/01 76
0493 4/03/43 4/01/76 4 01/76
0493 5/07/43 4/01/76 4 /01/76
0493 5/08/43 4/01/76 4/01/76
0493 5/15/43 4/01/76 4/01.76
0493 5/16/43 4 0 1 76 4/01/76
0493 5/20/43 4 01/76 4 01 76
0493 6/04/43 4/01/76 4/01/76
0493 6/09/43 4/01/76 4/01/76
0493 6/19/43 4/01/76 4 /01/76
0493 6 25/43 4 0 1 7 6 4 01 76
0487 7 14/43 4 01/76 4 01 76
0493 7/14/43 4/01,76 4/01 76
0487 7/22/43 4/01/76 4-01 76
0493 8/04/43 4/01/76 4/01 76
0029 8 05 43 4 01/76 4 01,76
0028 8/10/43 4 01/76 4 01 76
0003 8/10 13 4/01/76 4/01 7 6
0487 8/11/43 4/01/76 4/01 76
0488 8/11/43 4/01-76 4/01 76
0487 8 13 43 4/01 76 4 01 76
0029 8/16/43 4 01 76 4 01 76
0029 8/17/43 4 0 1  76 4 01 76



A-20

CONSOLIDATED RAIL CORPORATION 

SENIORITY ROSTER 1978 
ENGINE SERVICE — SENIORITY DISTRICT “G”

Exhibit B

E m p lo y e e  
R a n k  N a m e

E m p lo y e e
N u m b e r

P r io r
R R

1249 M illard Jr. cv 896776 EL
1250 L eS trange TJ W 00231 EL
1251 Olexy SF 895682 EL
1252 B urkhart JS 895680 EL
1253 Evans W D C 10006 EL
1254 C ohn HS 024850 PC
1255 Scott AC 882061 EL
1256 Preston JR 895681 EL
1257 V anSlooten H 882062 EL
1258 D im arino HJ 087082 PC
1259 Kellogg RL 895671 EL
1260 Balas Jr. PC 014748 PC
1261 K eister Jr. JL 066030 PC
1262 Bailey GC 300101 PR SL
1263 H oran FJ 867571 RDG
1264 Sullivan  Jr. JJ 882063 EL
1265 B oshek JA 895580 EL
1266 S ta te ja JJ 031089 PC
1267 S tarling W D 882064 EL
1268 H ryn JJ 025176 PC
1269 G alanot EL 025063 PC
1270 Pedlock J C 10007 EL
1271 Sm ith GC 066442 PC
1272 S ta tkev icus J 852621 LV
1273 T h u rs to n W S 025802 PC
1274 Jo h n sto n RM 066004 PC
1275 W illiam s RE 864437 RDG
1276 R egan TG 895685 EL
1277 D eprim o CA 895666 EL
1278 T om pkins AR 852622 LV
1279 B aginski EF 022811 PC
1280 A dam s WB W 00232 EL
1281 B urke JJ 024824 PC
1282 Latin i MB W 00233 EL
1283 Latin i GJ W 00234 EL -
1284 B ottum GL 864595 RDG
1285 G anser R 876491 C N J
1286 K unkle KH 852257 LV
1287 C rane R 885296 EL
1288 R en n VS 864597 RDG
1289 V anderm ark CE 885286 EL
1290 D on ah u e  J r D 851665 CN J

Prior
Rights
Roster

Prior
Seniority-

Date

Conrail
Fireman

Date

Conrail
Engineer

Date

0 4 9 3 5 /2 0 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 4 9 3 6 /0 4 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 4 9 3 6 /0 9 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 4 9 3 6 /1 9 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 4 9 3 6 /2 5 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 0 2 9 7 /1 4 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 4 8 7 7 /1 4 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 4 9 3 7 /1 4 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 4 8 7 7 /2 2 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 0 1 2 7 /2 2 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 4 9 3 8 /0 4 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 0 2 9 8 /0 5 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 0 2 8 8 /1 0 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 0 0 3 8 /1 0 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 0 0 3 8 /1 0 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 4 8 7 8 /1 1 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 4 8 8 8 /1 1 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 0 1 4 8 /1 3 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 4 8 7 8 /1 3 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 0 2 9 8 /1 6 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 0 2 9 8 /1 7 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
051 1 8 /2 3 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 0 2 8 8 /2 4 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 0 0 3 8 /3 0 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 0 2 9 8 /3 1 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 0 2 8 9 /0 7 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 0 0 2 9 /0 8 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 4 9 3 9 /0 9 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 4 9 3 9 /0 9 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 0 0 3 9 /1 5 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 0 2 9 1 0 /1 1 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 4 9 4 1 0 /1 1 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 0 2 9 1 0 /1 2 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 4 9 4 1 0 /2 0 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 4 9 4 1 0 /2 2 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 0 0 3 1 0 /2 5 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 0 0 2 1 0 /2 7 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 0 0 1 1 0 /2 8 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 4 8 7 1 1 /0 3 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 0 0 3 1 2 /0 1 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 4 8 7 1 2 /0 2 /4 3 4 /0 1 /7 6 4 /0 1 /7 6
0 0 0 2 1 2 /0 4 /4 3 4 /0 1 /7 6 4 /0 1 /7 6



A-21

1291 Z ech m an AA 864600 RDG 0003 12/21/43 4/01/76 4/01/76
1292 H artley DC 853442 LV 0003 12/29/43 4/01/76 4/01/76
1293 Batz RN 024766 PC 0029 12/31/43 4/01/76 4/01/76
1294 L utzko  J r J 876612 CN J 0002 1/06/44 4/01/76 4/01/76
1295 B rom m er C F 865146 RDG 0002 1/06/44 4/01/76 4/01/76
1296 M urray JM 025459 PC 0029 1/07/44 4/01/76 4/01/76



A-22

CONSOLIDATED RAIL CORPORATION 
ROSTER OF ENGINEERS 

(Former Erie-Susquehanna 2nd Sub Divn.) 
HOBOKEN 3RD SUB DIVISION

Exhibit C

R a n k
N o. N a m e

A c c ’t .
N o .

B i r th
D a te

E n te re d
S e rv ic e

D a te
P ro m o te d
E n g in e e r

1 . FA G. H azle ton , Jr. 10/30/19 8/24/41 12/11/56
2. D. T. M altby 882158 10/02/19 8/28/41 12/13/56
3. FA E. J. R uefer 10/20/15 10/29/41 12/14/56
4. W. R. O lver 884651 6/22/22 7/27/42 3/27/57
5. A. H. M aillet, Jr. 883361 10/08/17 10/27/42 4/01/57
6 . FA H. C. S u lzbach 10/25/14 3/08/43 4/03/57
7. C. E. Gore 885381 6 /15/17 3/09/43 10/24/60
8. FA F. R. R oss 882161 11/12/13 3/25/43 10/28/60
9. FA W . B. A dam s 885880 7/02/16 10/11/43 11/08/60

10. M. B. Latin i 882163 11/13/19 10/20/43 11/09/60
11. G. J. L atin i 882162 6/07/18 10/22/43 11/10/60
12. R. A. M oureaux 882160 10/14/12 1/15/44 11/11/60
13. D. W. M osher 885093 1/20/25 6/28/45 11/14/60
14. D. C. E n g e lh a rt 883365 1/26/26 5/12/59 3/14/64
15. J. W. B ogach 882038 8/01/36 5/15/59 3/14/64
16. E. D. M osher, Jr. 888755 10/16/34 7/10/59 3/14/64
17. 0 .  R. Sw ingle 882940 4/19/28 10/01/59 3/14/64
18. J. G. Davis 884599 12/05/32 12/18/59 3/14/64
19. T. H. M cK eeby 882942 4 /19/38 5/07/60 2/27/65

ROSTER OF ENGINEERS 
FORMER LACKAWANNA — SCRANTON DIVN.

HOBOKEN 2ND SUB. DIVN.

R a n k
N o. N a m e

A c c ’t.
N o.

E n te re d
S e rv ic e

D a te
P ro m o te d
E n g in e e r

S e n io r i ty  
D el. D ivn .

20. J. F. T u n n e v 896791 5/01/43 8/05/55 10/17/60
21. E. J. R u e th er 896788 5/07/43 8/09/55 10/17/60
22. H. W etm ore 897022 5/15/43 8/11/55 10/17/60
23. C . V. M illard 896776 5/20/43 10/04/55 10/17/60
24. FA T. J. L es tran g e 6/04/42 10/04/55 10/17/60
25. S. F. O lexv 895682 6/09/43 10/04/55 10/17/60
26. J. R. P reston 895681 7/14/43 12/07/55 10/17/60
27. T. R egan 895685 9/09/43 12/19/55 10/17/60
28. C. D ePrim o 895666 9/09/43 12/19/55 10/17/60



A-23

Commonwealth of Pennsylvania 

County of Lackaw anna

Exhibit D

ss

I, THOM AS J. LeSTRA N G E, hereby swear and affirm 
the following:

1. In 1970, I took a leave of absence from the Erie 
Lackaw anna Railroad.

2. Prior to that time, and subsequent to that leave of 
absence, I was part of the collective bargaining agree­
m ent m ade by the Erie Lackaw anna and my union.

3. From 1976 through 1981, I have been on the 
seniority rosters of ConRail.

4. To the best of my knowledge, I am now subject 
to the collective bargaining agreem ent between ConRail 
and my union.

Thomas J. LeStrange
Sworn to and subscribed 
before me this 25th day 
of September, 1981.

Notary Public



A-24

Com m onw ealth of Pennsylvania 

County of Philadelphia
ss:

AFFIDAVIT OF JAMES P. LEACH
I, JA M ES P. Le a c h , having been duly sworn accord­

ing to law, depose and say:
1. I am Director — Title V Administration for Con­

solidated Rail Corporation with offices at 1234 Six Penn 
C enter Plaza, Philadelphia, a position I have held since 
D ecem ber, 1979. In  that capacity I am responsible for 
the im plem entation and m onitoring of the labor protec­
tion program  established by Title V of the Regional Rail 
Reorganization Act, as am ended.

2. Prior to becom ing Director, I was Acting Director 
beginning in August, 1978. During 1977 I functioned as 
M anager — Title V Administration. I have spent 40 
years actively involved in labor relations in the railroad 
industry. From  my background I am generally familiar 
with the m anner in w hich Conrail has im plem ented Ti­
tle V.

3. In accordance w ith the requirem ents of Section 
502(b) of the Regional Rail Reorganization Act of 1973 
Conrail extended an offer of continuity of the employ­
m ent relationship effective April 1, 1976 to each em ­
ployee of “a railroad in reorganization in the region,” as 
defined in Section 102(14) and (15) of the Rail Act (and 
including the Erie-Lackaw anna Railroad), who had not 
already accepted em ploym ent with the United States 
Railway Association. Conrail construed these offers to be 
accepted unless rejected  in writing. Attached is an accu­
rate copy of the notice of continuation of employment 
sent to people absent because of disability or on leave of 
absence. A copy of this letter was sent to Thom as 
LeStrange,



A-25

4. Conrail construed these offers as an offer of an 
em ploym ent relationship rather than an offer of active 
em ploym ent because the num ber of employees of the 
railroads in reorganization greatly exceeded the num ber 
of positions available with Conrail. Basically, these offers 
did not change any employee’s status on April 1, 1976 — 
active employees rem ained as active employees, fu r­
loughed employees continued in that status, and em ­
ployees absent due to disability or leave of absence con­
tinued in their respective states. Statistically this m eant 
that Conrail had 149,498 employees as of April 1, 1976. 
However, a ttachm ent 2 to this Affidavit, I.C.C. Wage 
Statistics Form B which Conrail is required to subm it to 
the I.C.C., shows that only between 94,000 and 100,429 
employees were actively employed in April of 1976.

5. Subsequent to April 1, 1976. as Conrail began to 
consolidate its workforce, active employees were put into 
surplus status, that is they did not work. Statistically, 
this is reflected in attachm ent 3 to this Affidavit which is 
a copy of I.C.C. W age Statistics Form B which shows 
that in calendar year 1980, Conrail had between 79,574 
and 85,182 active employees.

6. Conrail received no money from the Federal 
Governm ent pursuan t to Section 509 of the Rail Act for 
costs of adm inistration of Title V. Nor has Conrail used 
any money potentially available under title  V for train­
ing costs referred to in Section 509. Such funding for 
training was only available as of October 1, 1980, w hen 
the Staggers Rail Act was passed and shortly thereafter 
it becam e apparent that Title V would be repealed. This 
repeal was effective Septem ber 1, 1981, The money



available under Tide V was used to reim burse Conrail for 
benefits paid to or for the benefit of employees pursuant 
to Section 505 of the Rail Act.

James P. Leach
Sworn to and subscribed 
before me this 2nd day 
of October, 1981.

Notary Public



A-27

February 26, 1976

NOTICE
TO: Employees represented by labor organizations on 

the following properties:
Ann Arbor Railroad Company, The Central 

Railroad Company of New Jersey, Chicago River 
and Indiana Railroad Company, Dayton Union Rail­
way Company, Erie Lackaw anna Railway Com­
pany, Indianapolis Union Railway Company, Iron- 
ton Railroad Company, Lehigh and Hudson River 
Railway Company, Lehigh and New England Rail­
way Company, Lehigh Valley Railroad Company, 
The New York and Long Branch Railroad Com­
pany, Penn Central Transportation Company (ex­
cept employees of Canada Southern), 
Pennsylvania-Reading Seashore Lines, Peoria and 
Eastern Railway Company, Raritan River Railroad 
Company, Reading Company, Union Depot Com­
pany, Columbus, Ohio.

Effective April 1, 1976, rail properties of railroads in re­
organization and certain of their subsidiaries as desig­
nated in the United States Railway Association’s Final 
System Plan will be conveyed to Consolidated Rail Cor­
poration (hereinafter referred to as “ConRail”). ConRail 
will assum e jurisdiction over the operation and control of 
certain properties conveyed in accordance with the pro­
visions of the Regional Rail Reorganization Act of 1973 
(PL 93-236), as amended.
As provided for in Section 502(b) of the Regional Rail 
Reorganization Act and Article 11(a) of the Single Im ple­
m enting Agreem ent dated July 23, 1975, between 
ConRail and participating labor organizations, all em ­
ployees actively employed on the above nam ed proper­
ties, who have not accepted employment with a railroad 
acquiring property pursuan t to the Final System Plan, 
are hereby offered employment with ConRail to become



A-28

effective on the date of conveyance, April 1, 1976. This 
offer of em ploym ent is in the same class or craft in 
w hich you are actively employed, and you will not lose 
any seniority held in any other craft or class on the 
ConRail System.

This offer of em ploym ent will be considered as hav­
ing been automatically accepted unless you specifically 
decline by w ritten notice to Mr. A. E. Egbers, Vice 
President-Labor Relations, Consolidated Rail Corpora­
tion, 1818 M arket Street, Fifteenth Floor, Philadelphia, 
Pennsylvania 19103 not later than M arch 15, 1976.

Unless otherwise advised, employees who accept 
em ploym ent with ConRail and who are working on rail 
properties being conveyed to ConRail shall be assigned 
to the same positions on the day of conveyance, April 1, 
1976, that they held immediately prior to such date, and 
will report at the same time and same location and work 
under their respective collective bargaining agreements.

If employees’jobs are to be abolished incident to the 
conveyance or discontinuance of service under the pro­
visions of the Act, or otherwise will not be available to 
them , fu rther notice will be given to such employees and 
they may exercise seniority under the rules in effect for 
the class or craft in w hich they are working.

Richard D. Spence 
President and Chief 
Operating Officer

Form Title V-l



A-29

February 26, 1976

Enclosed is a copy of my notice dated February 26, 
1976 offering employm ent to all employees of railroads 
in reorganization and certain of their subsidiary proper­
ties which are being conveyed to the Consolidated Rail 
Corporation (ConRail) under the Final System Plan is­
sued by the United States Railway Association in accor­
dance with the Regional Rail Reorganization Act of 
1973, as amended.

The records indicate that you are presently on an 
authorized leave of absence, or absent because ol dis­
ability.

This is to advise that your employment relationship, 
including seniority, will be automatically transferred to 
ConRail as of the date of conveyance, unless you accept 
an offer of employm ent with an acquiring railroad or do 
not desire to establish an employment relationship with 
ConRail and so advise, in writing, Mr. A. E. Egbers, Vice 
President-Labor Relations, 1818 Market Street, Fif­
teenth Floor, Philadelphia, Pennsylvania 19103.

Very truly yours,

Richard D. Spence 
President and Chief 
Operating Officer

Form Title V-4



tO-ROISS

MONTHLY REPORT OF EMPLOYEES, SERVICE, AND COMPENSATION-Continued
-C .a . n . R m L . ............. ....................... ............. ................ I ...............................................................................................Full nam# o f reporting company ..

M o n th  o f  .
For calendar year .

( I n a i  0*1 Ora)

A P .L '.L ., 19 2L  
________, 19__

S la v ic s  ROOM

■ irOSTIKQ DIVISION

tu

W Du * * " u " ar*4* . ____ D**v

t* m

Weses*

Ul un (« m m
N*.

Y1 (b). T a s N sro a rsn o a  (m am  anb BHOiaa)
193 3i £ . 7.03 s i ? 77 ! M S .. .7.9 S / a A S d . 7.6 2 / d I l l

Assistant road passenger conductors and ticket sxrileetora—  
Road freight conductor* (through freight)............ .... . . . . . . . . . .

. . 7 70  A 7 /8 798 22 / 02 9 .31 730 3 3 8 7 / 2 97 l i t

197,
9 1 9

........ / L  7/ 239. .1 2 . . . / f 7J L 7.3 (p. 782 U S H O l i t
111 . 721. c l .  \ 7.72 n s .3 8 873. .3 L 7 7 / 21 7 111

‘ 8 7 f a / o A M (  ? (-97 l 270 / U S J t? 7  79 118
n s * ._ L .„ ,n ,nrt fl, I S  7 2 L S 3 2 c U 7 8 057 ...7 / . 9.7 . . . .? 99o. 838 . u e
p j  \  i a .V  ,  ,  a n . , ___ ,f h #a.l( M) . . 3 5 / 7 ... 3 992 729 M S

72 /
L 09 :w o 2 t>3 2 L L 9.7.0 S / i 117

......J 9p 7 ..... / 92o 297 H / 8 . . u 1 7 . v  d 97.0 5 9 3 11B
.3 . S 7S ......3. i . s i f ' / / L /C , S2 / t 737 .7 2 11° 298 . 7 ? 7 87 9 l i t

y  1 ^ j.____ A , .  .  | n t 7 ■\77 979 1, 8 / n i I L L v w / U 2A A / 17  (c o / L __ I22
O ^ .  a _. . T l 887 287 /■9H 93 / 2  Ci r / 8 .2 7 390 . 77.3 ( p s y 131
Road freight engineers and motormen (through freight)........ - j . 8 S 7.

9 8 2
2 o.7 l

991
277
(9 2

7 9 i 3 8 9
79,2

O P l
3S 3

A S 77 9 .
M l

777 S L l 779
929 J ! e M 7 1 2 9 2 /1.0 P H I 128

. . .3 . ... .3 37.0 171 7  93 <3S H ...7.2 391 . 9.9. 797 6 .6.6 1 8 IU
r ____  , _____ || | | f  h l |( ||f t 1/ J f 7  7 '< 77 m /L 'C . 9 i , /9 72 7 9 9 s c -7 U S 1M

Road freight Bremen and helpers (through freight).................. . . . / 773
53 3 .

.... / . 7. 7.9 /  M 732 7 9 * / 3 V. 7 7 / fc.9 L o 8 27.7. 0.83 . n e

8.77 .2 / (a 93 8 o 372 n a s p / ? 8.7.3. /  77 76 ' / m

Yard Bremen and helper*.......— — .............................................. ! 171 - / 7 /7 n ¥ J o f t 9/7 % 775 792 O b  2 128
R < H 7 / . / < ?

... ^
799 <170 ( M l 6 /7 / V k 2 7 8 7 12L s v z

TOTAL. ALL CROUPS (DI«lelone SOI .  SOS) 1 1 2 L M l / A t v J ' / " " "
XXX XXX XXX x x x x x x XXX x x x x x x XXXXXX VXXX (909)

■ r n i T n t o  division

oi« a)—ContinuedVI (b). T u n r o m n o s  (train

Road passenger conductor*............. .............................................
Assistant rood passenger conductor* sod ticket collectors......
Road freight conductor* I through freight).................................
Road freight conductor* (local and wag freight) ..................
Road passenger baggageman ............... ........................................
Road passenger brakemen and flagman . ............... .......  ...
Road freight brakaman and Bagmen (through freight)..........
Road freight brakaman and flagmen (local and era , freight)
Yard conductor* and yard foreman............................................
Yard brakemeo and yard helper*.................................... ...........
Road passenger engineers and motor-men..................................
Road freight engineer* and motormen (through freight)......
Road freight engineers and motormen (local and way freight).
Yard engineers and motormen....................................................
Road passenger firemen and helpers.................. .......................
Road freight Bremen and helpers (through freight).................
Road freight Bremen and helpers (local and »ay freight)__
Yard Bremen and helpers___ _____ ____ ____ ___ __________

T orsi. (trensporlstton—train and eogiue)...................

j i n .
3/3
o .3 <r

:V'. U 3 
(3 /  S/S. 
?S S S f> (

dA

m .

CJtS.
853
6.S7.
8o2
2LA

p p 9
£1 °
370

/ S i -
9eX

l '„ o  l

S 3  3jU

/R i
S c 3
3M
o t f  S

7 ? 2

2 8 . ,
£98
7/8
/ / / . .
M L .
2 3 2 .
IL L

123
J.79 
183  
3.S3 

1
.31

(MR

3& .
M l
0.73
q 3 !
£13
<723
7 9 /
o /2

397

£ & .
Vi

/ ( /
A LL

S3.1J.7S
H J l l S C
J i S  /// 
233 3 7 /

*7 1
S .S ./JU

2J I
W /
& o S
1 1 1

‘lA A lJLh

A IL
2 3 /
878,

3 3 2
31

. 1 2
111 .
3 7 9

13.<*
S l< ]
3 q 9
8.90
7HL
3 p1

m

123,

0 5 /
3 o 2 ‘
283
- 2L
1M .
121.
M L
■LI

112 7A.L
IL L
813
182 
32 L 

lA l\
8/7
82.0.
L /.2
L il

(a 7  S I  
038 
(aROt
n s

<i
S\337 

953 
S % 2 3  
<? 779

9o 2
' 213 .

Q c &
'13
'L l

1  7.33

i l l

'if;
S. 227

2L L

m u

5o7
233.
2/7

9  Q Q .l 
. 1.1 22  

M l
.7.73
3.13.

3 . ]A S 3

771

m / ,
h a
S  QO

‘JM .
O I L ~ £ L

7.2L
1.72

271.
7.73
0 /7 .
23.9.
IL L

.7/2
2/7.
7.83

213 7.
738.

~5T \

JU 3  379

0.1 u  
7.32 
8.7S \

? L
727.
<7/3

5.58 
8o7. 
1,8 (

192.
977.

Is  b

5<?5
S o c i

7.3S
7.22
/3?>

...1 3 3  872. 

....372 292.

AM

L/7.
1.83

228
721

739 HAS 
37.7 L/2 
565 .7 8 1

ALL

2 9  9.73. 
1 9  013

. . . 1 .
..18.
.37 .
2 9
M l

? .8o..
.0/3.

22L
9 3 2 .
5 1 5 . .  
Q2 Q
7. 0.  ..
I l l
S 3  7  
7.89. 
7.9.1 
1.70.. 
1 1 2
7 2 7
7.P.7.

2 2 - 1 1 1
ilL

_ i a
(VOB)

d basis for oompuling pay on reepondsnt'e road i .
M  P *

m .

A
-30



Farm tponr-cd     _ I. C. O. If AO
Buirati No. 80-R01 J l  g

MONTHLY REPORT OF EMPLOYEES, SERVICE, AND COMPENSATION-Continued

is-
v



A-32

UNITED STATES COURT OF APPEALS
FOR TH E  TH IRD  CIRCU IT

No. 81-2943

T h o m a s  L e  S t r a n g e ,

v.
Appellant

C o n s o l i d a t e d  R a il  C o r p o r a t i o n ,
Appellee

Appeal from the U nited States District Court for the 
Middle District of Pennsylvania

(D.C. No. 78-0944)

Subm itted June  8, 1982

Before: ADAMS and WEIS, Circuit Judges 
and BLOCH*, D istrict Judge

* T he H onorable Alan Bloch, U nited States D istrict Judge for 
the W estern  D istrict of Pennsylvania, sitting by designation.

OPINION ANNOUNCING THE JUDGMENT 
OF THE COURT

BLOCH, D istrict Judge.

Plaintiff brought suit, pu rsuan t to §504 of the Reha­
bilitation Act of 1973, claiming he was denied employ­
m ent by the defendant because he is handicapped. Sec-



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tion 504, 29 U.S.C. §794, provides: “No otherwise 
qualified handicapped individual . . . shall . . .  be ex­
cluded from the participation in, be denied the benefits 
of, or be subjected  to discrim ination under any program 
or activity receiving Federal financial assistance. . . . ” Al­
though the lower court dism issed plain tiffs action be­
cause he lacked standing to bring his suit, we think the 
question posed by this appeal is, in fact, w hether §504’s 
prohibition against discrim ination by federal grantees 
encom passes a ban against em ploym ent discrimination.

I
The lower court concluded plaintiff did not have 

standing to sue defendant for em ploym ent discrim ina­
tion “unless 1) providing em ploym ent is a prim ary objec­
tive of the federal aid received by the defendant, or 2) 
discrim ination in em ploym ent necessarily causes dis­
crim ination against prim ary beneficiaries of the federal 
aid.” LeStrange v. Consolidated Rail Corp., No. 78-0944 
(M.D. Pa. Oct. 20, 1981). The court fu rther refined the 
first prong of its standing test to require the plaintiff to 
show he is a prim ary beneficiary of the federal aid re­
ceived by the defendant, and that the primary objective 
of the federal aid be to create new jobs, and not merely to 
m aintain em ploym ent or to com pensate for lost jobs. 
Plaintiff could not m eet either of the two prongs of the 
lower court’s standing test.

This standing test had its genesis in the case of 
Trageser v. Libbie Rehabilitation Center, Inc., 590 F.2d 
87 (4th  Cir. 1978). The Trageser analysis has since been 
adopted by the Eight Circuit in Carmi v. M etropolitan 
St. Louis Sewer D istrict, 620 F.2d 672 (1980), the Sec­
ond Circuit in United States v. Cabrini Medical Center, 
639 F.2d 908 (1981), and the N inth Circuit in Scanlon v. 
Atascadero State H ospital, No. 80-5201 (May 24, 1982). 
Trageser and its progeny rely on § 505(a)(2) of the R eha­



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bilitation, Com prehensive Services, and Developmental 
Disabilities Act of 1978, am ending the Rehabilitation 
Act of 1973, which provides:

“The remedies, procedures, and rights set forth 
in title VI of the Civil Rights Act of 1964 shall be 
available to any person aggrieved by any act or fail­
ure to act by any recipient of Federal assistance or 
Federal provider of such. . . . ”

29 U.S.C. §794a(a)(2).
Title VI served as the model for §504 of the Reha­

bilitation Act. Section 601 of Title VI provides:
“No person . . . shall, on the ground of race, color, 

or national origin, be excluded from participation in, 
be denied the benefits of, or be subjected to discrimi­
nation under any program or activity receiving Fed­
eral financial assistance.”

42 U.S.C. §20Q0d.
Section 602 of Title VI authorizes federal 

departm ents and agencies to prom ulgate regulations to 
enforce §601’s prohibition against discrimination, in ­
cluding regulations providing for the term ination of fed­
eral funding in the event of non-compliance, id., 
§2000d-l. Flowever, §604 provides:

“Nothing contained in this subchapter shall be 
construed to authorize action under this subchapter 
by any departm ent or agency with respect to any em­
ployment practice of any employer . . , except where a 
primary objective of the Federal financial assistance is 
to provide employment.”

Id., §2000d-3.
Trageser concludes, first, that §604 limits not only 

agency action, but also the actions of private litigants. It 
then concludes that the remedies, procedures and rights 
of Title VI extended to the victims of handicap discrimi­
nation by the 1978 am endm ents to the Rehabilitation



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Act includes §604’s lim itation on the right to bring an 
action for em ploym ent discrimination.

The lower court reform ulated the Trageser holding 
into a test for standing, peculiar to §504 actions. We see 
no reason to form ulate any test for standing for §504 ac­
tions other than  that prom ulgated by the Suprem e Court 
for general application, that is (a) does the plaintiff al­
lege “that the challenged action has caused him  injury 
in fact, economic or otherw ise”; and (b) “[is] the interest 
sought to be protected by the com plainant . . . arguably 
w ithin the zone of in terest [sought] to be protected or 
regulated by the statu te  or constitutional guarantee in 
question.” Association o f Data Processing Sendee Or­
ganization v. Camp, 397 U.S. 150, 152-53 (1970). The 
relevant question on this appeal would then  be w hether 
p lain tiffs in terest in being free from employment dis­
crim ination falls w ithin the zone of interests sought to 
be protected by §504. However, the correct formulation 
of the test for standing for §504 actions is not the crucial 
issue presented by this appeal. For however the test is 
form ulated, the crucial issue is w hether §504, as 
am ended in 1978, covers employment discrim ination 
against the handicapped by federal grantees.

II
The Suprem e Court recently confronted this same 

issue w ithin the context of Title IX of the Education 
A m endm ents of 1972, and we believe its approach in 
North Haven Board o f Education v. Bell, 50 U.S.L.W. 
4501 (May 17, 1982), dictates our approach in this case.

Section 901(a) of Title IX, like §504 of the Rehabili­
tation Act, is modeled after §601 of Title VI of the Civil 
Rights Act. It provides:

“No person . . . shall, on the basis of sex, be 
excluded from participation in, be denied the bene­
fits of, or be subjected to discrim ination under any



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education program or activity receiving Federal fi­
nancial assistance. . . . ”

The D epartm ent of Education prom ulgated regula­
tions pursuan t to Title IX, prohibiting federally funded 
education program s from discrim inating in employment 
on the basis of gender. Two Connecticut public school 
boards brought separate suits challenging its authority 
to issue the regulations, arguing Title IX was not m eant 
to reach the employment practices of educational insti­
tutions.

The Suprem e Court began its analysis by focusing 
on the statutory language, concluding first that “[A] fe­
male employee who works in a federally funded educa­
tion program is ‘subjected to discrimination under’ that 
program if she is paid a lower salary for like work, given 
less opportunity for promotion, or forced to work under 
more adverse conditions than are her male colleagues,” 
id ., at 4503, and, therefore, that, “Because §901(a) nei­
ther expressly nor impliedly excludes employees from its 
reach, we should in terpret the provision as covering and 
protecting these ‘persons’ unless other considerations 
counsel to the contrary,” id. To determ ine w hether 
“other considerations counsel to the contrary,” the Su­
prem e Court looked to the legislative history “for evi­
dence as to w hether Congress m eant somehow to limit 
the expansive language of §901,” id. The Court found no 
such evidence and held, “Title IX proscribes employ­
m ent discrim ination in federally funded education pro­
gram s,” id. at 4507.

I l l

The statutory language of §504 of the Rehabilitation 
Act and §901 of Title IX being virtually identical, we are 
bound to conclude, like the Suprem e Court in North H a­
ven, that because §504 “neither expressly nor impliedly



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excludes employees from its reach, we should interpret 
the provisions as covering and protecting these ‘persons’ 
unless other considerations counsel to the contrary.” For 
like female employees, handicapped employees are 
“subjected to discrimination under” a federally funded 
program if they are paid lower salaries, given less oppor­
tunity for promotion, or forced to work under more 
adverse conditions than  are their non-handicapped col­
leagues. Similarly, a handicapped individual is certainly 
“subjected to discrimination under” a federally funded 
program if, as alleged in our case, he is not hired at all, 
solely because of his handicap.

Of course, Trageser and the courts which have fol­
lowed it, including the lower court in this case, find 
counsel to the contrary7 in §505(a)(2) of the 1978 
am endm ents to the Rehabilitation Act, extending the 
remedies, procedures and rights of Title VI to victims of 
handicap discrimination. Title IX contains no provision 
similar to § 505(a)(2). Trageser would also argue that 
§ 505(a)(2) should be read together with § 505(a)(1), 29 
U.S.C. §794a(a)(l), extending the remedies, procedures 
and rights of Title VII to victims of handicap discrim ina­
tion by the federal government. The failure of Congress 
to extend Title VII to victims of discrimination by federal 
grantees indicates to the Trageser court its intention to 
limit the scope of § 504 to discrimination other than em ­
ployment discrimination. We do not believe that the stat­
utory language of § 505(a)(2), even w hen read in the 
context of § 505(a)(1), indicates a desire to narrow the 
scope of §504. For this reason, we would nonetheless 
find §504 prohibits employment discrimination by fed­
eral grantees unless anything in  the legislative history of 
either §504 or § 505(a)(2) counsels to the contrary.

Section 505(a)(2) extends the remedies, rights and 
procedures of Title VI to (1) persons; (2) aggrieved by 
any act or failure to act by either a recipient or a provider 
of federal funds. Title VI consists of six provisions,' and

1. T he first provision of Title VI, §601, 42 U.S.C. §2000-d, is 
the declaration prohibiting discrim ination on the basis of race, color 
or national origin by federal grantees. The second provision, §602,



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the only one w hich extends to persons any rights or rem ­
edies is §603, 42 U.S.C. §2000d-2, providing for judicial 
review of agency action.

The plain words of §604 limit its application to 
departm ents or agencies. Given the statutory schem e of 
w hich Title VI is a part, it is not illogical to assum e Con­
gress in tended precisely w hat it said and no more. Title 
VI is, of course, a part of the 1964 Civil Plights Act. The 
1964 Civil Rights Act also has a Title VII which deals ex­
clusively w ith em ploym ent discrimination. In 1964, it 
prohibited em ploym ent discrim ination on the basis of 
race, color or national origin by any  employer with 15 or 
more employees working each working day for at least 
20 weeks. Obviously, the sweep of Title VII is far broader 
than  Title VI. Clearly, Title VI was never m eant to be a 
prim e tool for the enforcem ent of em ploym ent rights.

Title VII created a new federal agency, the Equal 
Em ploym ent Opportunity Commission, to battle em ­
ploym ent discrim ination. W ithout the lim iting language 
of §604, Title VI threatened to engage every other de­
partm ent and agency in the sam e battle, with the poten­
tial danger of varying rules, regulations and strategies.

The question of w hether §604 also limited the 
rights of private litigants was unlikely to even occur to 
the Congress. The only reason for a private litigant to 
sue for em ploym ent discrim ination under Title VI is that

id. §2000d-l, authorizes federal departm ents and agencies to issue 
rules, regulations and orders to effectuate the initial prohibition 
against discrim ination. Section 602 also provides that com pliance 
with the regulations may be effected by the term ination of federal 
funding. It fu rther provides for a num ber of procedures clearly de­
signed, not to protect the victim of discrim ination, but the federal 
grantee. Section 603, id . §2000d-2, provides for judicial review of 
agency action. Section 604, id . §2000d-3, prohibits any departm ent 
or agency from term inating  funds for em ploym ent discrim ination 
unless a prim ary goal of the federal program  involved is to provide 
em ploym ent. Section 605, id . §2000d-4, exem pts from the scope of 
Title VI program s w hich receive federal financial assistance by way 
of a contract of in su rance  or guaranty.



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he failed to m eet the administrative requirem ents to 
bringing suit under Title VII. Even then, an action 
brought pursuan t 42 U.S.C. §1983 may provide a wider 
range of rem edies than a Title VI action.2

As to the implications raised by § 505(a)(1), extend­
ing the remedies, procedures and rights of Title VII to 
victims of discrim ination by the federal government, 
closer analysis underm ines the Trageser argum ent that 
this too indicates Congressional in ten t to limit §504 to 
discrim ination other than employment discrimination.

Section 505(a)(1) extends particular provisions of 
Title VII to individuals aggrieved by the final disposition 
of a complaint brought pursuant to §501 of the Rehabili­
tation Act. Section 501 requires federal departm ents, 
agencies and instrum entalities, including the Postal Ser­
vice, to develop an affirmative action plan for the hiring, 
placem ent and advancem ent of handicapped individu­
als. Handicapped employees or prospective employees 
aggrieved by agency action or inaction may file a com­
plaint with the agency. The particular provisions of Title 
VII referred to in § 505(a)(1) extend to complaining indi­
viduals the right to appeal an adverse agency decision to 
the EEOC and then to bring a civil action in court. The 
various provisions prescribe various time limitations on 
agency action and the filing of appeals and civil suits. 
They fu rther proscribe various court procedures.

Section 505(a)(1) refers alleged victims of employ­
m ent discrim ination on the basis of handicap in the fed­
eral government to the very sections of Title VII dealing 
with employm ent discrimination on the basis of race, 
color, religion, sex or national origin in the federal gov­
ernm ent. Section 505(a)(1) asks the EEOC to do what it

2. Some courts have decided tha t a Title VI litigant is entitled to 
declaratory and in junctive relief only, and not m onetary damages. 
D ra y d e n  v. N e ed v ille  In d e p e n d e n t  Schoo l D is t., 642 F.2d 129 (5th 
Cir. 1981); C o n cern ed  T e n a n ts  A s s ’n . v. I n d ia n  T ra ils  A p a r tm e n ts ,  
496 F. Supp. 522 (N.D. 111. 1980).



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is already doing for victims of em ploym ent discrim ina­
tion on one basis for victims of em ploym ent discrim ina­
tion on another basis. The question before the EEOC in 
either case is the same: was this person discrim inated 
against in the m aking of some em ploym ent decision? 
O nce the EEOC has m ade its determ ination, the alleged 
discrim inatee, if dissatisfied, may go to court.

In contrast, extending Title VII rights, rem edies 
and procedures to victims of discrim ination by federal 
grantees would p resen t a host of new  issues to the 
EEOC. First, it would take it beyond the realm  of em ­
ploym ent discrim ination for the first time, to discrim ina­
tion in housing, access, education, etc. Second, it would 
ask it to resolve the issue of w hat is a federally-funded 
program  or activity, a question with w hich it has no fa­
miliarity.

The failure of Congress to extend Title VII to vic­
tims of §504 discrim ination was obviously intended sim ­
ply to short-circuit the EEOC, and for obvious reasons. 
Reading into the statutory framework of §505 an in ten ­
tion to drastically narrow  the scope of §504 is a strained 
interpretation of an otherwise reasonably constructed 
provision. Support should be found in the legislative h is­
tory before we should stretch so far.

IV

In order to be certain  that Congress intended what 
the broad sweep of its language in §504 indicates, we 
m ust undertake a two-step analysis of legislative history. 
Section 504 should be read to prohibit employment dis­
crim ination “unless other considerations counsel to the 
contrary.” Considerations counselling to the contrary 
may be found in the legislative history of §504 of the Re­
habilitation Act of 1973 or the legislative history of the 
1978 am endm ents, w hich introduced § 5 0 5 (a /2 ) to the 
Act. We begin with the 1973 legislative history. Because 
we believe nothing in that historv indicates Congress in ­



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tended anything less than  it said, we then turn  to the 
history of the 1978 am endm ents to determ ine it Con­
gress, at that point, in tended to narrow the scope of its 
prior enactm ent.

The legislation which would eventually become the 
Rehabilitation Act of 1973 was considered and passed by 
the Congress three times before it was finally signed into 
law by President Nixon on Septem ber 26, 1973. Sen. 
Rep. No. 93-318, 93d Cong., 1st Sess., reprinted  in 1973 
U.S. Code Cong. & Ad. News 2076, 2086-2090 
[hereinafter cited at Sen. Rep. No. 93-318], A provision 
prohibiting discrim ination against the handicapped by 
federal grantees was part of all three m easures, id. at 
2078-2082, although it was not part of the original reso­
lution passed in 1972 by the House. Comm, of Conf. 
Rep. H.R. 8395, 92d Cong., 2d Sess. reprinted in 118
Cong. Rec. 35141, 35163.

All versions of the legislation were lengthy, the first 
two even lengthier than the third. Certainly, the primary 
purpose of the legislation was to extend the 53-year-old 
vocational rehabilitation program, for another period of 
years, with a new' m andate, in the original two bills, to 
give priority to the severly handicapped. In addition, the 
bills as originally subm itted to the President authorized a 
program  which, for the first time, would have piovided 
rehabilitation services to severly handicapped individu­
als with no feasible vocational goals. In addition, the 
original two bills would have created a series of other 
new program s concentrating on particular sub-groups of 
the handicapped, such as older deaf and blind individu­
als with spinal cord injuries and individuals with 
end-stage renal disease. Finally, the bills would have 
m andated certain research and created a num ber of fed­
eral bodies to deal with particular problems of the handi­
capped. Sen. Rep. No. 93-318, 1973 U.S. Code Cong. & 
Ad. News at 2078-2079.



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The first bill was pocket vetoed by the President on 
October 27, 1972. 118 Cong. Rec. 37203. The second 
bill was vetoed on M arch 27, 1973, 119 Cong. Rec. 9307, 
and the Senate failed to override the veto a week later, 
id. at 10794. Serious negotiations between the Adminis­
tration and, primarily, the Seriate then began. Sen. Rep. 
No. 93-318, 1973 U.S. Code & Ad. News at 2082. [sic].

The President’s prim ary objection to the original 
two bills was that they authorized what he considered to 
be an excessive and inflationary am ount of money to 
fund the proposed programs. He also objected to what 
he saw as a change of focus in the highly successful vo­
cational rehabilitation program by requiring priority be 
given to the severely handicapped. He also opposed the 
proliferation of categorical grants to fund the new pro­
grams and the proliferation of federal commissions, 
councils and divisions. 118 Cong. Rec. 5880 (first veto 
m em orandum ); 119 Cong. Rec. 24570 (second veto 
m em orandum ). The final bill that was to become Jaw 
was trim m ed from seven titles to five. It required only 
that vocational rehabilitation program s give equal, not 
priority, treatm ent to the severely handicapped, elimi­
nated all the proposed new programs, including the 
non-vocational rehabilitation program, eliminated most 
of the new federal bodies which would have dealt with 
the problems of the handicapped, and, of course, signifi­
cantly lowered the am ount of money authorized to fund 
the rem aining legislation. Sen. Rep. No. 93-318, 1973 
U.S. Code Cong. & Ad. News at 2079-2082.

At no time was there any dispute between the Ad­
m inistration and the Congress over the wisdom of the 
non-discrim ination provision w hich would eventually be 
codified in §504. N either was it ever a m atter of contro­
versy between the Senate and the House. Although it 
was not part of the first House resolution, the Senate 
version was accepted in conference with no more than 
the notation, “The House recedes.” 118 Cong. Rec. 
35163.



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It is not surprising, therefore, that despite the pages 
of legislative history generated by an act debated and 
passed three times by Congress, that there is little refer­
ence to §504. There is no direct reference indicating that 
§504 was not m eant to cover employm ent discrim ina­
tion. However, there are several both direct and indirect 
references indicating the contrary.

The Rehabilitation Act was born in the Senate in 
the newly constituted Subcom m ittee on the H andi­
capped of the Committee on Labor and Public Welfare. 
The subcom m ittee was charged with exam ining all is­
sues related to the handicapped, not ju s t those raised by 
the vocational rehabilitation program. 119 Cong. Rec. 
5882. The expanded focus of the bill which was reported 
by the subcom m ittee was certainly due, in part, to the 
wide focus of the subcom m ittee’s m andate. The legisla­
tive history indicates one of the problems of the handi­
capped addressed by the subcom m ittee was the problem 
of em ploym ent discrimination.

Senator Cranston, who chaired the subcom m ittee 
for the purpose of considering the legislation extending 
the vocational rehabilitation program, com m ented du r­
ing debate on various criticisms of the program which he 
felt could not be handled simply by am ending the Voca­
tional Rehabilitation Act itself. “Such problems, as un­
founded discrim ination in em ploym ent in housing, 
difficulties of access to places of work and treatm ent 
centers, and duplication and fragm entation of services 
across program  lines were voiced repeatedly to the com­
m ittee,” he noted. (Em phasis added). Id. 3

Discrimination in employm ent has a particularly 
detrim ental im pact on the vocational rehabilitation pro­
gram, Senator C ranston noted:

3. See a lso , the rem arks of Senator Stafford, the ranking m i­
nority m em ber of the subcom m ittee, 119 Cong. Rec. 5893; and Sen. 
Rep. No. 93-318. 93d Cong. 1st Sess., r e p r in te d  in  1973 U.S. Code 
Cong. & Ad. News 2076, 2078.



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“[D iscrim ination in placem ent, hiring and ad­
vancem ent continue to limit the vocational rehabili­
tation program ’s ability to effect successful 
rehabilitations . . . The expenditure of money on vo­
cational rehabilitation program s is not well spent if 
we do not at the same time take m eaningful steps to 
elim inate architectural barriers and provide sub­
stantial accom plishm ents in employment for handi­
capped individuals.”

Id.
These sentim ents of Senator Cranston expressed 

during debate on the second incarnation of the act were 
echoed by Senator Taft during debate on the third incar­
nation of the act:

The basic purpose of vocational rehabilitation 
continues to be to help physically and mentally 
handicapped individuals achieve the ability to work, 
earn, and live independently in their communities. 
Yet in spite of the relatively high success of this pro­
gram, we still have a long way to go . . . Too many 
handicapped Americans are not served at all, too 
m any lack jobs, and too m any are underemployed
— utilized in capacities well below the levels of their 
training, education, and ability.

However, if we are to assure that all handi­
capped persons may participate fully in the rewards 
m ade possible by the vocational rehabilitation pro­
gram, we m ust devote more of our energy toward 
the elimination of the most disgraceful barrier of all
— discrimination.

Id. at 24587.
And, clearly, the Rehabilitation Act addressed the 

problem of em ploym ent discrimination. As described by 
Senator Javits, co-sponsor of the act, a m em ber of the 
subcom m ittee and ranking minority m em ber of the par­
ent Committee on Labor and Public Welfare, “This



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m easure draws upon the experience of the past half cen­
tury and provides new em phasis on the severely handi­
capped, the hom ebound, client services and participa­
tion, opportunities fo r  em ploym ent o f the handicapped 
and adm inistration im provem ents.” (Em phasis added). 
Id. at 5887. The bill as originally reported and ultimately 
enacted into law provided, in sections immediately pre­
ceding §504, for affirmative action program s to encour­
age the hiring of the handicapped by the federal govern­
m ent, 29 U.S.C. §791(b) and federal contractors, 29 
U.S.C. §793. It is hard to imagine, in an Act whose pri­
mary goal is to enhance the vocational capabilities of the 
handicapped, that if the legislature had intended to limit 
the reach of a provision which immediately follows two 
sections whose express purpose is to encourage the h ir­
ing of the handicapped, that someone somew'here in the 
legislative history would not have said so. On the con­
trary, several m em bers indicated the opposite.

During debate on the original bill, Senator Javits 
highlighted several new areas of federal responsibility 
recognized by the legislation: “I refer, for example, to . . . 
provisions for encouraging hiring of the handicapped 
under Federal contracts and Federal grants.” 118 Cong. 
Rec. 32305. Senator Hum phrey reviewed those provi­
sions requiring affirmative action by federal contractors 
and prohibiting discrim ination by federal grantees and 
found they embodied the in ten t of bills he had intro­
duced earlier w hich would have am ended both Iitles VI 
and VII of the 1964 Civil Rights Act to include the 
handicapped. Id. at 32310. Finally, Senator Williams, 
chairm an of the full Committee on Labor and Public 
Welfare, during debate on the third version of the bill, 
reviewed provisions retained from the first two versions, 
including, “prohibitions against discrimination in em ­
ployment in programs assisted with Federal funds.” 119 
Cong. Rec. 24588.

These few direct references to §504 support the 
conclusion that the in ten t of Congress m atched the



A-46

broad sweep of its language. We tu rn  now to the 
question of w hether Congress intended to narrow the 
scope of §504 by the 1978 am endm ents, specifically 
§ 505(a)(2).

B

Section 505(a)(2) originated in the Senate and was 
adopted by the Com m ittee of Conference assigned to 
reconcile the Senate and House versions of the 1978 
am endm ents to the Rehabilitation Act. House Conf. 
Rep. No. 95-1780, 95th Cong. 2d Sess., reprinted in 
1978 U.S. Code Cong. & Ad. News 7375, 7404. Al­
though the Joint Explanatory Statem ent of the Commit­
tee of Conference offers no assistance in interpreting the 
provision, noting only that the House receded in its op­
position to §505(a)(2), id., the report of the Senate Com­
m ittee on H um an Resources accom panying the original 
Senate bill discusses the purpose of the provision.

The Senate Com m ittee notes that the then Depart­
m ent of Health, Education and W elfare had recently is­
sued regulations enforcing the prohibition against 
handicap discrim ination by federal grantees embodied 
in §504. These regulations are particularly noteworthy 
because HEW  was assigned the task, by executive or­
der, of coordinating the issuance of regulations enforc­
ing §504 by all federal departm ents and agencies. These 
regulations, subsequently codified at 45 C.F.R. §84.1 et 
seq., prohibited discrim ination in employment practices, 
id. at §84.11. N onetheless, the Committee stated:

It is the com m ittee’s understanding that the 
regulations prom ulgated by the D epartm ent of 
Health, Education, and Welfare with respect to pro­
cedures, rem edies, and rights under section 504 
conform with those prom ulgated under title VI. 
Thus, this am endm ent codifies existing practice as 
a specific s ta tu to ry  requirement.



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Sen. Rep. No. 95-890, 95th Cong. 2d Sess., p. 19. (E m ­
phasis added).

The com m ittee fu rther stated that applying the pro­
visions of Title VI to §504 of the Rehabilitation Act 
would assure “adm inistrative due process, and provide 
for adm inistrative consistency within the Federal Gov­
ernm ent.” Id.

The com m ittee report contains nothing that would 
indicate it felt HEW  exceeded its statutory authority by 
prohibiting employm ent discrim ination in its recently 
prom ulgated regulations. Similarly, no one during the 
debate in the Senate or House suggested HEW  had gone 
too far. In fact, the only Congressm an who directly m en­
tioned the regulations during debate, Representative 
Dodd, “strongly supported the long-delayed issuance of 
the section 504 regulations believing then, as now, that 
the protections they establish for the handicapped are 
very m uch needed.” 124 Cong. Rec. 13905.

Several proposed am endm ents to the act, and the 
debate on them , fu rther indicate that Congress under­
stood §504 to reach employm ent discrimination, when 
enacted and as amended. For example, Senator Cannon 
proposed during debate an am endm ent which, for the 
purpose of §503 and §504 of the Rehabilitation Act, 
would exclude from the definition of handicapped indi­
vidual an alcoholic or drug abuser “whose condition of 
alcoholism or drug abuse renders that individual not 
qualified for employm ent . . . ” The purpose of Senator 
C annon’s am endm ent, which was eventually passed and 
codified at 29 U.S.C. §707(7)(A), was: “To exclude alco­
holics and drug abusers from certain employment provi­
sions of the Rehabilitation Act . . 124 Cong. Rec.
30322. Its scope was considerably narrower than a simi­
lar m easure proposed in the House which would have 
excluded alcoholics and drug abusers from the defini­
tion of handicapped individuals altogether, regardless of 
w hether their condition im pacted on their employability 
or not.



A-48

Clearly, Senator C annon believed §504 reached em ­
ployment discrim ination, and nobody during the debate 
on his argum ent suggested otherwise. More specifically, 
nobody suggested that if §504 had at one time reached 
em ploym ent discrim ination, the proposed § 505(a)(2) 
would have the effect of elim inating it from its scope. 
Senator Williams, chairm an of the Committee on H u­
m an Resources, spoke in support of Senator C annon’s 
am endm ent, w hich he felt necessary “because of m isun­
derstandings and distortions concerning employm ent 
rights of alcoholics and drug dependent persons.” Id. at 
30323. Senator Williams felt the am endm ent “would re ­
assure employers that it is not the in ten t of Congress to 
require any employer to hire a person who is not quali­
fied for the position or who cannot perform competently 
in his or her job .” Id.

Senator H athaway also spoke in support of the 
am endm ent because he felt it would protect those many 
alcoholics and drug addicts who hold jobs and perform 
them  satisfactorily. “Sections 503 and 504 of the R eha­
bilitation Act protect such persons employed by agencies 
w hich receive Federal funds or employers which have 
Federal contracts from being fired solely because of their 
alcoholism or drug addiction.” Id. at 30324.

Another am endm ent proposed during debate would 
have am ended § 505(a)(1) to limit a court in an action 
brought against the federal governm ent to equitable and 
affirmative action rem edies proportionate to actual dam ­
ages.4 124 Cong. Rec. 30576. Its sponsor, Senator Mc­
Clure, described the am endm ent’s function as insuring 
“that m am m oth affirmative action rem edies involving

4. A com prom ise was reached  later in debate, w hich resulted  in 
the following language being inserted  in  §505(a)(l): “In  fashioning 
an equitable or affirm ative action rem edy . . .  a court may take into 
account the reasonableness of the cost of any necessary  work place 
accom m odation, and the availability of alternatives therefor or other 
appropriate relief in  order to achieve an equitable and appropriate 
rem edy.” 29 U.S.C. §794a(a)(l).



A-49

substantial construction could not be compelled in in ­
stances in w hich actual dam ages were comparatively 
sm all.” Id.

Senator M cClure’s am endm ent was vehem ently op­
posed by Senator C ranston, a sponsor of the 1978 act, on 
the basis that the federal governm ent should be required 
to do no less than  private employers. Senator Cranston 
argued:

The am endm ent offered by the Senator from 
Idaho would create an unw ise and unrealistic dis­
tinction with respect to em ploym ent between the 
obligations of the Federal Governm ent and the 
obligations of Federal contractors and grantees. 
Ironically, the Senator’s am endm ent would limit — 
with a financial test — the Federal G overnm ent’s 
obligation of being an equal opportunity employer. 
Federal contractors and grantees would — appropri­
ately — continue to be required to be equal opportu­
nity employers.

Id. at 30577-30578.
Finally, we would note the rem arks of R epresenta­

tive Jefford, a m em ber of the Subcom m ittee on Select 
Education, w hich reported the House version of the act, 
com m enting on the creation of the Architectural and 
Transportation Barriers Compliance Board in §118 of 
the am endm ents:

[W]e gave this board new and expanded re­
sponsibilities fo r  this one aspect o f §504. It is our 
thought that by separating only the “physical” bar­
riers . . . from actual discrim ination in jobs, educa­
tion, housing, and health, we have taken a signifi­
cant step forward.

Id. at 13901. (Em phasis added).
None of the above-quoted references to employ­

m ent discrim ination brought forth any objections from 
the speakers’ colleagues in the House and Senate. In ­



A-50

deed, they did not bring forth so m uch as a question or 
request for clarification.

Combining the legislative history looking for the in ­
tent of Congress is often a frustrating chore. Often the 
in ten t of Congress hinges on the rem arks of one or two 
individuals. See North Haven, supra  at 4504. Here our 
task has not been so difficult. Clearly, the legislative his­
tory to the 1978 am endm ents dem onstrates a wide­
spread understanding on the part of Congress that §504, 
even as am ended, proscribed employment discrim ina­
tion against the handicapped.

C

Post-enactm ent pronouncem ents provide confirma­
tion of Congressional in ten t to cover employment dis­
crimination in §504. The Senate Committee on Labor 
and H um an Resources, whose predecessors reported 
both the 1973 Rehabilitation Act and its 1978 am end­
m ents, stated unequivocally one year after Trageser, 
supra:

[Trageser] is not consistent with Congress’ 
original and continuing in ten t that handicapped in­
dividuals be empowered to bring suit in Federal Dis­
trict Court for alleged employment discrimination in 
violation of, [section 504] regardless of the desig­
nated use of the Federal funds received by the em ­
ployer in question.

In 1980, responsibility for coordinating enforce­
m ent of §504 by federal departm ents and agencies was 
transferred to the Attorney General. In his analysis of 
rules prom ulgated pursuan t to this authority, the Attor­
ney General took note of HEW ’s earlier regulations pro­
hibiting employment discrimination,. Trageser and 
Carrni, the legislative history of both the 1973 Act and 
the 1978 am endm ents, and concluded, “[T]he Depart­



A-51

m ent believes that the employment practices of recipi­
ents of Federal financial assistance are covered by sec­
tion 504 regardless of the purpose of the assistance . . . ” 
Nondiscrim ination Based on Handicap in Federally As­
sisted Programs — Im plem entation of Section 504 of the 
Rehabilitation Act of 1973 and Executive Order 11914, 
45 Fed. Reg. 37620, 37628 (1980).

y

U nder the holding of the district court, Conrail is 
prohibited from discrim inating against handicapped 
passengers, but is free to discrim inate against the handi­
capped in employment. Such an analysis of §504, unless 
supported by the words of the relevant statutes or their 
legislative history, is absurd.

T hus far, the handicapped have not been extended 
the broad protections against discrimination extended 
women and m em bers of other minority groups. Federal 
law protects the handicapped only if employed by the 
federal government, or federal contractors or grantees. 
To elim inate protection against discrimination in em ­
ployment by federal grantees would eliminate a substan­
tial portion of the small am ount of protection afforded 
the handicapped. W hat is a commonsensicle approach 
to Title VI, thus, becomes a devastating blow within the 
context of the Rehabilitation Act. “In the context of §504 
of the Rehabilitation Act, applied Trageser-style, §604 
operates as a blunderbuss.” Scanlon, supra  at 2163 (Fer­
guson, J., dissenting). See also, Carmi, supra at 679 
(McMillan, J., concurring). N either the words of the 
statutes, nor legislative histories, dictate such a result.

For this reason, the order of the district court is re­
versed, and the case rem anded for further consideration 
and ultim ate disposition on the merits.



A-52

ADAMS, C ircuit Judge, concurring in the judgm ent.
Had this appeal been presented for resolution sev­

eral m onths ago, I m ight well have joined the other four 
courts of appeals in concluding that the Act was not in ­
tended to cover discrim ination against the handicapped 
by private employers. After all, the statute m akes no di­
rect reference to private employment, and it certainly is 
not unreasonable to read the restrictions contained in 
section 604 of Title VI into the Rehabilitation Act.

N onetheless, I have concluded that the result 
reached by the Court in this case is consonant with, and 
perhaps even compelled by, two recen t decisions, one by 
the Suprem e Court, North Haven Board o f Education v. 
Bell, 50 U.S.L.W. 4501 (U.S. May 17, 1982), and the 
second by this Court, Grove C ity College v. Bell, No. 
80-2383, slip op., (3d Cir. Aug. 12, 1982). And w hatever 
I m ight th ink of the wisdom of these two decisions, I am 
bound to apply them  unless they are overruled.

In North H aven,1 supra, the Suprem e Court con­
cluded that the D epartm ent of Education had sta tu ­
tory authority to regulate em ploym ent discrim ination in 
education — even though Title IX of the Education Act 
m akes no direct reference to employment, and even 
though Title IX, w hich was patterned after Title VI, 
m ight be thought to incorporate the employment- 
regulation restrictions of section 604 of Title VI. Never­
theless, the Justices reasoned that the broad-sweeping 
language of Title IX, w hich did not explicitly rule out the 
regulation of em ploym ent discrim ination, w hen coupled 
with a strong legislative and postenactm ent history, con­
stituted a sufficient basis from which to infer a congres­
sional in ten t to bring employees within the protection of 
Title IX. The North Haven analysis, w hen applied to the

1. N o r th  H a v e n  involved claim s of y n d e r  discrim ination com ­
m itted by two public school districts in C onnecticm . TA  Suprem e 
C ourt noted that one of those districts. North Haven, “devoted be­
tw een 46.8% and 66.9% of its federal assistance to the salaries of its 
employees.” 50 U.S.L.W . at 4502.



A-5 3

words of the Rehabilitation Act — which for all relevant 
purposes are identical to the words of Title IX — and 
w hen considered in connection within the strong legis­
lative history of section 504, would appear to compel a 
similar conclusion. The theory and analysis underlying 
North Haven, then, would suggest that LeStrange pre­
vail on this appeal.

In addition to North H aven , I am persuaded that it 
would be difficult to arrive at a contrary' result in this 
m atter after the recent opinion in Grove C ity, supra. In 
Grove C ity, also decided under Title IX of the Education 
Act, a panel of this Court concluded that an entire edu­
cational institution is brought within the definition of 
“program ,” and therefore subject to regulation under Ti­
tle IX, if it receives any federal aid, and that aid is gen­
eral or indirect and not specifically earm arked for a par­
ticular educational function w ithin the institution. The 
logic of Grove C ity  would appear to be irreconcilable 
with the analysis employed in Trageser v. Libhie Reha­
bilitation Center, Inc., 590 F.2d 87 (4th Cir. 1978), cert, 
denied, 442 U.S. 947 (1979), where an employer was 
deem ed to fall within the purview of the Rehabilitation 
Act only if federal funds were received specifically for 
em ploym ent purposes.

For these reasons I join the judgm ent of the Court 
in return ing  this m atter to the district court for further 
proceedings.



A-54

WEIS, Circuit Judge, concurring.
I join in the judgm ent of the court because I believe 

the case on which the district court relied, Trageser v. 
Libbie Rehabilitation Center, Inc., 590 F.2d 87 (4th Cir. 
1978), cert, denied, 442 U.S. 947 (1979) was errone­
ously decided. I agree that the issue in this case is not 
one of standing, as that term  is ordinarily used, see, e.g., 
Valley Forge C hristian College v. Americans United for  
Separation o f Church and State, 50 U.S.L.W. 4103, 
4105-06 (Jan. 12, 1982), but is the more direct question 
of the scope of §504.

Trageser held that the prohibition against handicap 
discrim ination in §504 of the Rehabilitation Act is 
limited by the reference in § 505(a)(2) to the provisions 
of Title VI of the Civil Rights Act of 1964. That is, a claim 
of employm ent discrim ination against the handicapped 
is subject to §604 of Title VI: “Nothing contained in this 
subchapter shall be construed to authorize action . . .  by 
any departm ent or agency with respect to any employ­
m ent practice of any employer . . . except where a prim a­
ry objective of the Federal financial assistance is to pro­
vide em ploym ent.” 42 U.S.C. §20Q0d-3.

Although it recognized that Ҥ604 expressly curtails 
the authority of federal departm ents and agencies,” the 
Trageser court concluded that “it also restricts private 
su its.” 590 F.2d at 89. The court cited no authority for its 
conclusion and I am persuaded that it erred in applying 
§604 to private suits. The language of §604 confines its 
application to “action . . .  by any departm ent or agency” 
and does not refer at any point to suits brought by a pri­
vate individual or entity.

The Rehabilitation Act’s reference to Title VI was 
not intended to restrict the rem edies of handicapped in ­
dividuals but ra ther to limit the sanctions which govern­
m ent agencies could take against an offending recipient 
of federal financial assistance. Congress enacted §604 
because it feared that w hen an employment violation oc­
curred, an overzealous federal agency m ight threaten



the very existence of im portant program s by invoking 
the rem edy of w ithholding funds.1 The reference to Title 
VI in § 505(a)(2) of the Rehabilitation Act m ust therefore 
be interpreted with the understanding that §604 was 
drafted to prevent administrative overkill. Viewed in this 
light, it is clear that the incorporation of §604 narrows 
not the rights of victims, but only the coercive m easures 
w hich a “departm ent or agency” can apply against an of­
fender.

The dissenting opinion of Judge Ferguson in 
Scanlon v. Atascadero State Hospital, No. 80-5201 (9th 
Cir. May 24, 1982), analyzes the errors of the Trageser 
opinion at length. I agree with Judge Ferguson and see 
no need to repeat here the reasoning which underlies 
the conclusions we both reach. See also, Carmi v. M etro­
politan St. Louis Sewer D istrict, 620 F.2d 672, 676 (8th 
Cir.), cert, denied, 449 U.S. 892 (1980), McMillian, J. 
(cone.).

It is worth noting that in NAACP v. W ilmington  
Medical Center, Inc., 599 F.2d 1247, 1258 (3d Cir. 
1979), this court concluded that there is a private right 
of action under §504. Our holding today is wholly con­
sistent with that case.

Of course, I intim ate no views on the merits of this 
case and concur in the rem and to the district court.

A-55

A True Copy:
Teste:

Clerk o f the United States Court
o f Appeals fo r  the Third Circuit

1. D uring congressional debates, Title VI was commonly re­
ferred to as the “cut-off-the-funds title.” See Com m ent, E m p lo y m e n t  
D is c r im in a tio n  A g a in s t  th e  H a n d ic a p p e d :  C a n  T ra g e se r  R ep ea l th e  
P r iv a te  R ig h t  o f  A c t io n ,  54 N.Y.U.L. Rev. 1173, 1186 n. 69.