DWIGHT ROBERTS, Complainant,

VS.

IOWA BEEF PROCESSORS, INC., Respondent.

FINDINGS OF FACT

1. At the time Dwight Roberts filed his complaint (9-30-82) he was approximately 22 years of age. He had recently graduated from high school. Approximately 4 years earlier (December 1978), he had a pacemaker implantation. He was released from the hospital with the following restrictions: "stay away from microwaves and high voltage electronic motors, no heavy lifting over 80 pounds in constant patterns, and no contact sports. " Thereafter he had regular pacemaker checks which were normal. In July 1979, his spells were diagnosed as psychogenic. The next notation on his medical records (12-23-82) was as follows:

"Present for pacemaker check. He has had the same battery for the last four years. He is functioning well. He is playing basketball, etc. He has no angina or congestive heart failure symptoms." (Respondent's Exhibit 17).

2. On April 26, 1982, Roberts applied for a position with TASCO. IBP, Inc., Pork Division, had just purchased the HyGrade Food Products plant in Storm Lake, Iowa. Their subsidiary, TASCO, was in the process of converting the plant for pork processing and, therefore, seeking workers for temporary construction work. Most of the temporary construction workers, approximately 229, started in June 1982. When the construction was completed, a transition to production was made and IBP advertised for production workers. Some temporary TASCO construction workers remained as production workers for IBP. Approximately 236 additional workers were hired in September 1982 for production work. A description of the production work is found in Respondent's Exhibit 8.

3. On April 26, 1982, when Roberts applied for temporary construction work with TASCO, he was one of approximately 500 applicants. His experience as provided on his application indicated part-time computer programming from November 1978 until May 1980, a practium as a student at Iowa Lakes Community College. The application also showed work as a part-time security guard for Pinkertons. As a security guard, he was scheduled to work at HyGrade. This part-time work took place from November 1980 until July 1981. Roberts' medical history questionnaire revealed that he had 'heart disease -implanted pacemaker 1978," with date of last physician examination on April 1, 1982. The record indicates that, as part of the application process, Roberts was sent to the nurse. Roberts was not hired for one of the temporary construction positions. IBP said they did not hire him because he was not qualified to do the heavy construction work based on his 80# lifting restriction. The construction work typically included brick and block work, mixing cement, lifting, hauling, tearing walls out and putting new walls in, i.e., heavy duty work. Roberts was briefly interviewed as was customary procedure. (T.48)

4. Roberts stated that Julius, the TASCO interviewer, attempted to dissuade him from seeking employment with IBP, "telling him that he shouldn't even be applying, that he shouldn't be working but be home taking care of himself." (Brief p.2,12) The fact is that Roberts alleged that Julius said that at some unidentified time. (Tr. 15-16, and 21-22) The further fact is that Julius testified that he did not make those statements. (Tr.65-66) The testimony of Julius is the more credible. He was no longer an employee of IBP and had nothing to gain or lose from his testimony. Roberts also testified that he received a letter from IBP denying him the position. IBP stated that they do not, as a matter of policy, send out denial letters. Roberts had no documentation to prove he received such a letter.

5. When asked: "Now, with regard to construction work, why did you believe you were qualified for that position?" Roberts replied: "Well, in high school I had part of - I had some courses in woodworking and stuff, but I just thought with enough -- courses in woodworking, I might get a job in construction." (T. 16-17) Furthermore, Roberts' application only listed his college practium computer experience and the part-time security guard position. Even if "woodworking class" were considered experience for a heavy construction job, TASCO was not informed of that experience.

6. Between April 1982 and December 1982, TASCO and IBP processed 2,525 applications.

7. Complainant has not alleged that TASCO and IBP failed to hire him because he was substantially handicapped. Roberts has alleged, however, that TASCO perceived him to be substantially handicapped when he was not. TASCO believed Roberts to be unqualified for the construction job because he had a lifting restriction and was, therefore, not the most qualified of the applicants considered for the hire.

8. On August 23, 1982, Roberts again filed an application, this time with IBP. This application listed his additional experience of collator with Buena Vista Stationary starting in August 1982, and self-employment in August 1978 as a salesman of Aloe Vera products. Roberts testified he also worked two different places as a janitor. This was not part of the application and therefore, could not have been considered. In August, there was no physical examination nor interview. Roberts stated that the August application was in response to an ad for security guard. (T. 15) The purpose of the August application is not clear in the record, but it is obvious that no action was taken on it.

9. Roberts applied again on September 1, 1982. He checked that he had not previously applied for a job with IBP. It appears that this time, he again was checked by the nurse. It is not clear from the record that Roberts ever applied for production work. He only anticipated that when he applied for the temporary construction job, if hired, he would make the transition into production. (T. 16,20)

In his September 1982 application, Roberts was applying for a security position. He did have experience for this position and when he was interviewed by Bruce Anderson, Industrial Relations person who had just come on board, his application was referred to security. (T. 16) Roberts' 80# lifting restriction was noted on his 9-1-82 application, but no documentation from his doctor as to his status at the time was submitted. (T.20-21) Roberts insists he had a back x-ray in September, but there is no indication of such on either of his physical exam reports. (T. 16,22,3 1)

10. There were over 2000 applicants for the advertised work with IBP. Anderson was in charge of hiring only the production workers. That is why, when he learned of Roberts' interest and experience in a security position, he referred the application to that area. Roberts admits that security was the position for which he was applying.

11. There were three full-time positions and one part-time position in security. Floyd Carver applied for a security position on August 17, 1982. Carver was hired. Carver had many years of State Patrol experience. Kevin Metz and Ronald Petersen had been hired in June 1982, as TASCO employees and continued in security. Pat McKenna was hired in transition from her HyGrade position with Pinkertons' when HyGrade was phased out. Niehaus applied on August 31, 1982, and also started in September 1982 when Petersen left. When HyGrade phased out, the most senior people in security were continued in security with IBP. James Gaes was also hired in August but only worked a
couple weeks. He was transferred to another position because of a nepotism problem. It is noted that Gaes had heart trouble and was hired for the security position. There were no positions open at the time Roberts applied. The people hired to fill those positions were qualified and experienced. [See Respondent's Exhibit 16; Post-Hearing letter dated 9-15-88 with information requested by the All; Tr. 137-138]

12. IBP had an equal employment opportunity policy in effect with specific provisions relating to accommodating the handicapped. (Respondent's Exhibits 9 and 14)

13. During the time at issue, production workers started at $6.00 an hour and security personnel started at $4.35 an hour. (Respondent's Exhibits 12 and 16)

14. On December 2, 1982, Roberts again filed an application with IBP. This occurred after the complaint at issue was filed and will, therefore, not be considered.