Bachman v. American Soc. of Clinical Pathologists, Civ. A. No. 82-4394.

• Citation: 577 F. Supp. 1257
• Decision Date: 05 December 1983
• Docket Number: Civ. A. No. 82-4394.
• Parties: Myra Anne BACHMAN, Plaintiff, v. AMERICAN SOCIETY OF CLINICAL PATHOLOGISTS, Defendant.
• Court: U.S. District Court — District of New Jersey

577 F. Supp. 1257

Myra Anne BACHMAN, Plaintiff, v. AMERICAN SOCIETY OF CLINICAL PATHOLOGISTS, Defendant.

Civ. A. No. 82-4394.

United States District Court, D. New Jersey.

December 5, 1983.

A. Lawrence Washburn, Jr., Williston Park, N.Y., Evans, Koelzer, Osborne, Kreizman & Bassler by John P. Croake, Red Bank, N.J., for plaintiff.

Shanley & Fisher by Frank L. Bate, Newark, N.J., McKenna, Conner & Cuneo by Jeffrey P. Altman, Washington, D.C., for defendant.

OPINION

DEBEVOISE, District Judge.

I. PRELIMINARY STATEMENT

Plaintiff, Myra Anne Bachman, instituted this suit against defendant, the American Society of Clinical Pathologists (hereinafter "ASCP") on October 29, 1982, alleging that ASCP's denial of plaintiff's request for special testing conditions during an examination conducted by its Board of Registry constituted discrimination against a handicapped person in violation of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Presently before the court is ASCP's motion to dismiss the complaint or for summary judgment.

II. FACTUAL AND PROCEDURAL HISTORY

ASCP is a non-profit professional medical specialty society organized under the laws of Illinois with its principal place of business in Chicago. The society's membership includes pathologists, clinical scientists, and medical laboratory personnel. Among the various standing committees of ASCP is the Board of Registry, which is composed of twenty volunteers nominated for three year terms. The function of the Board of Registry, as set forth in ASCP's By-laws, is to "develop standards and procedures for individuals to enter, continue and/or advance in the medical laboratory, and to certify and register those individuals who meet the required level of competence." To fulfill this mandate, the Board of Registry periodically gives an examination to those persons who have completed the educational requirements established by the Board. Upon successfully passing the examination, an applicant is issued a certificate by the Board of Registry, which certificate is renewable annually.

On February 25, 1977, plaintiff applied to take the August 1977 Board of Registry examination for certification as a medical technologist. Plaintiff satisfied the educational and internship requirements for taking the examination. On March 29, 1977, however, she requested a reader and extra time for the examination due to her dyslexia, a condition which caused her difficulty in reading.

The Board of Registry denied plaintiff's request in June 1977. This decision was communicated to plaintiff by letter dated June 6, 1977. Subsequently, plaintiff informed the Board that she would not take the August 1977 examination. Upon further reconsideration of plaintiff's request for special assistance during the examination, the Board in October 1977 affirmed its original decision to deny her request.

Plaintiff filed a discrimination complaint against ASCP with the Department of Health, Education and Welfare (hereinafter "HEW") on January 20, 1978. By letter dated December 31, 1979, HEW's office for Civil Rights informed ASCP that plaintiff's complaint was dismissed since ASCP was receiving no federal funds at that time. Consequently, the Office for Civil Rights stated that it had no jurisdiction to enforce section 504 of the Rehabilitation Act of 1973 against ASCP.

The only federal assistance received by ASCP since March 1977, when the plaintiff applied to take the August 1977 Board of Registry examination, was two grants awarded by HEW. The first grant was awarded on January 7, 1977 in the amount of $40,920 to finance three seminars on alcohol abuse and alcoholism. These seminars were conducted on March 6, 1977, October 23, 1977 and March 19, 1978 at national meetings for pathologists. The second grant was awarded on June 26, 1978 in the amount of $12,420 to publish the proceedings of the seminars presented under the first grant. No further federal financial assistance has been received by ASCP in any form since 1978.

Plaintiff commenced this suit against ASCP on December 28, 1982. The court's jurisdiction over the statutory claims raised by plaintiff is conferred by 28 U.S.C. § 1331.

ASCP now moves for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) or for summary judgment pursuant to Fed.R. Civ.P. 56 on grounds that section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, is not applicable to organizations which are receiving no federal funds. Upon consideration of the affidavits and briefs of the parties and for the reasons discussed below, I find that ASCP is not subject to the Rehabilitation Act of 1973 and is, therefore, entitled to summary judgment pursuant to Fed.R.Civ.P. 56.

III. CONCLUSIONS OF LAW

In considering ASCP's motion to dismiss or for summary judgment, plaintiff's complaint must be viewed in the light most favorable to plaintiff and the allegations contained therein must be taken as true. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101, 2 L.Ed.2d 80 (1957). The following facts are alleged in the complaint: (1) plaintiff is a functionally proficient professional fully qualified as a medical technician despite her dyslexia, which impairs her recognition of the written or printed word; (2) plaintiff applied to take the August 1977 national certification examination offered by ASCP's Board of Registry but ASCP refused to make accommodations in its testing format for plaintiff's dyslexia; (3) at the time of said refusal, ASCP was receiving federal funds; (4) plaintiff's administrative complaint filed in 1977 with the HEW Office of Civil Rights was dismissed on grounds that ASCP was no longer receiving federal funds. Plaintiff seeks injunctive relief and compensatory damages in the amount of $50,000.00.

Plaintiff contends that ASCP's refusal to modify its testing conditions to accommodate her handicap constitutes a violation of section 504 of the Rehabilitation Act of 1973. This section prohibits a recipient of federal financial assistance from denying benefits to an otherwise qualified handicapped person solely on the basis of the handicap.¹ The threshold inquiry in applying section 504 is whether ASCP is a recipient of federal funds.

HEW has defined "federal financial assistance" to mean any grant, loan, contract, or any other arrangement by which the Department provides or makes available assistance in the form of funds. 45 C.F.R. § 84.3(h). The Department's regulations further define a "recipient" of federal financial assistance, stating:

(f) "Recipient" means any state or its political subdivision, any instrumentality of a state or its political subdivision, any public or private agency, institution, organization, or other entity, or any person to which Federal financial assistance is extended directly or through another recipient, including any successor, assignee, or transferee of a recipient, but excluding the ultimate beneficiary of the assistance.

45 C.F.R. § 84.3(f).

Although ASCP is presently not receiving federal financial assistance, it concedes that in 1977 and 1978, during the period when plaintiff applied to take the Board of Registry's national certification examination, it obtained two grants from HEW. (Dietrich Aff., ¶ 17). ASCP contends that these past grants do not render it subject to section 504 since this section applies only to current recipients of federal funds. Alternatively, ASCP argues that the anti-discrimination provisions of section 504 apply only to the specific program receiving federal funds. Accordingly, since the federal financial assistance ASCP received in 1977 and 1978 did not in any way relate to the examination and certification functions of the Board of Registry, ASCP asserts that it is not subject to section 504. Each of these grounds will be addressed separately below.

A. APPLICATION OF SECTION 504 IS NOT LIMITED TO CURRENT RECIPIENTS OF FEDERAL FINANCIAL ASSISTANCE.

ASCP's construction of section 504 as having applicability limited to current recipients of federal funds is incorrect. The purpose of this section is to eliminate discrimination on the basis of handicap in any program or activity receiving federal financial assistance. 45 C.F.R. § 84.1. The present tense language of the statute and implementing regulations reflects the fact that the federal funding is conditioned on the recipient's simultaneous compliance with the anti-discrimination provisions of section 504. Cf. Hupart v. Board of Higher Ed. of City of New York, 420 F.Supp. 1087, 1104 (S.D.N.Y.1976) (since biomedical program of defendant did not receive federal funds until after alleged reverse discrimination had occurred, jurisdiction of the court could not be founded on 42 U.S.C. § 2000d which prohibits discrimination on grounds of race by recipient of federal funds). Thus, the regulations promulgated by the Department of Health and Human Services pursuant to section 504 state that the recipient is obligated to comply with this section "for the period during which federal financial assistance is extended." 45 C.F.R. § 84.6(b)(3). Failure to comply with this condition for receipt of federal funds constitutes a statutory violation which is not cured merely upon discontinuance of the federal assistance.

In support of its contention that the Rehabilitation act only applies to current recipients of federal funds, ASCP argues that the remedies available to plaintiffs under section 504 are limited to an injunction requiring the recipient to end its discriminatory practices or have its federal financial assistance terminated. Consequently, if the statute is construed to apply to recipients not presently receiving federal funds but who discriminated against handicapped persons in the past while receiving federal funds, the statute provides a cause of action without a remedy since the recipients no longer receive federal funds which could...