620 F.2d 672 (8th Cir. 1980), 79-1325, Carmi v. Metropolitan St. Louis Sewer Dist.

Docket Nº:79-1325.
Citation:620 F.2d 672
Party Name:Paul D. CARMI, Appellant, v. METROPOLITAN ST. LOUIS SEWER DISTRICT, a Municipal Corporation; Lawrence J. Banes; Richard A. Meyer; Henry W. Lee, Jr.; Phelim O'Toole, Individually and in official capacity as members of Board of Trustees of Metropolitan St. Louis Sewer District; Peter F. Mattei, Exec. Director; Mary Hayslett, Personnel Officer, Indivi
Case Date:May 06, 1980
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 672

620 F.2d 672 (8th Cir. 1980)

Paul D. CARMI, Appellant,

v.

METROPOLITAN ST. LOUIS SEWER DISTRICT, a Municipal

Corporation; Lawrence J. Banes; Richard A. Meyer; Henry W.

Lee, Jr.; Phelim O'Toole, Individually and in official

capacity as members of Board of Trustees of Metropolitan St.

Louis Sewer District; Peter F. Mattei, Exec. Director; Mary

Hayslett, Personnel Officer, Individually and in official

capacities, Appellees.

No. 79-1325.

United States Court of Appeals, Eighth Circuit

May 6, 1980

Submitted Nov. 6, 1979.

Rehearing and Rehearing En Banc Denied May 29, 1980.

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James W. Sherby, St. Louis, Mo., argued for appellant; Stuart R. Berkowitz, Legal Services of Eastern Missouri, St. Louis, Mo., on brief.

Donald J. Stohr, Thompson & Mitchell, St. Louis, Mo., argued for appellees; Michael H. Wetmore and Robert G. Olson, St. Louis, Mo., on brief.

Before LAY, Chief Judge, [*] and BRIGHT and McMILLIAN, Circuit Judges.

LAY, Chief Judge.

Paul D. Carmi appeals the denial of injunctive, declaratory and monetary relief for alleged discrimination in employment on the basis of handicap in violation of 29 U.S.C. § 794 (§ 504 of the Rehabilitation Act of 1973), 42 U.S.C. §§ 1983, 1985(3), and the equal protection and due process clauses of the fourteenth amendment.

Paul Carmi has a rare, hereditary, physical disability known as Progressive Peroneal Atrophy or Charcot-Marie-Tooth Disease. This condition results in deterioration of the muscles and nerves of the hands and feet.

On April 1, 1976, Carmi applied for employment with Metropolitan Sewer District (MSD), a municipal corporation and political subdivision of the State of Missouri. Following a series of interviews, he was chosen as the preferred applicant for the job of storekeeper at MSD's Bissel Treatment

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Plant. 1 As the last step in the hiring process, he was required to submit to a pre-employment physical, and referred to the Sutter Clinic for that purpose. 2 He was briefly examined by Dr. Vernon Balster, an employee of the Sutter Clinic. Upon observation of the degree of muscle deterioration in Carmi's hands and feet, Dr. Balster determined that Carmi was not capable of regularly lifting 60 pounds or safely driving a fork lift, and concluded Carmi would be unable to successfully perform the duties of a storekeeper. His recommendation that Carmi not be hired was followed by MSD. Carmi's employment application was kept on file, and he was subsequently considered for one other position which was awarded to a more experienced man. Since June 1978, Carmi has been employed as a parts clerk with the Gusdorf Corporation.

The district court held that Carmi failed to prove he was an "otherwise qualified" handicapped individual as required by 29 U.S.C. § 794, or that his constitutional rights had been violated, and that he had therefore failed to establish a claim under 42 U.S.C. §§ 1983 and 1985(3).

I. Rehabilitation Act.

The initial question before us is whether Carmi has standing to bring an action under 29 U.S.C. § 794 for discrimination in employment.

29 U.S.C. § 794 provides in part:

No otherwise qualified handicapped individual in the United States, as defined in section 706(7) of this title, shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . . (emphasis added).

Section 794a(a)(2), makes available to persons aggrieved under section 794 the rights, remedies and procedures of title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq. 3 Section 2000d provides:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

This provision is limited by § 2000d-3 which states:

Nothing contained in this subchapter shall be construed to authorize action under this subchapter by any department or agency with respect to any employment practice of any employer, employment agency, or labor organization except where a primary objective of the Federal financial assistance is to provide employment.

It is true section 2000d-3 expressly limits only agency enforcement to situations where a primary objective of the federal financial assistance is to provide employment. Nevertheless, the legislative history of title VI lends strong support to our conclusion that Congress did not intend to extend protection under title VI to any person other than an intended beneficiary of federal financial assistance. 4 Thus, in

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suits charging employment discrimination under title VI, one of the purposes of the federal financial assistance must be to provide employment. Since section 794 was modeled after, and intended to be enforced in the same manner as title VI, 5 the limitations on private judicial enforcement of title VI apply to private suits brought under section 794. 6 The Fourth Circuit reached the same conclusion in Trageser v. Libbie Rehabilitation Center, Inc., 590 F.2d 87, 89 (4th Cir. 1978), cert. denied, 442 U.S. 947, 99 S.Ct. 2895, 61 L.Ed.2d 318 (1979).

The district court found that the federal financial assistance MSD received during 1976, was in the form of construction and engineering grants for the Lemay Treatment Plant from the Environmental Protection Agency. Since Carmi was not an intended beneficiary of the federal assistance, he lacks standing to bring suit under section 794. 7

II. Constitutional Claims.

We agree with the district court's finding that Carmi does not have a liberty or property interest sufficient to invoke the protections of the due process clause.

Property interests encompassed by the due process clause of the fourteenth amendment are not created by the Constitution, but by rules or understandings stemming from an independent source sufficient to support a claim of entitlement to the benefit. See Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972). Carmi relies upon no statutory entitlement to employment with MSD, and, although his expectation of employment was somewhat encouraged by MSD, he does not allege the existence of a binding understanding.

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His interest in employment, therefore, did not rise to the level of a constitutionally protected property interest. See Board of Regents v. Roth, 408 U.S. at 577, 92 S.Ct. at 2709; Coleman v. Darden, 595 F.2d 533, 538 (10th Cir.), cert. denied, --- U.S. ----, 100 S.Ct. 267, 62 L.Ed.2d 184 (1979); Thompson v. Link, 386 F.Supp. 897, 899 (E.D.Mo.1974). Carmi does not claim any infringement of a liberty interest such as reputation or free speech, nor impairment of his ability to obtain another job. We conclude that Carmi has no interest necessitating due process protection. 8

We do not agree with Carmi that MSD's reliance on Sutter Clinic recommendations is arbitrary and capricious so as to violate his right to equal protection. The classification of prospective employees into those who pass the physical examination and those who do not, is rationally related to MSD's asserted goal of insuring the employment of individuals who can perform their jobs without endangering themselves or others. 9

Carmi does not challenge the district court's finding, supported by the evidence, that all prospective employees are required to submit to a pre-employment physical. 10 The record indicates that job applicants are individually examined by physicians who are experienced in giving such physical examinations and treating occupational injuries and diseases.

Dr. Balster testified his recommendation that Carmi could not perform the responsibilities of storekeeper was based upon his knowledge of the general duties of a storekeeper, including the lifting and moving of very heavy objects, his observation of the degree of muscle deterioration in Carmi's hands and feet, and his knowledge of the significance of that degree of deterioration. We note that Dr. Balster has had 17 years of experience in the field of industrial medicine. While we express some reservation regarding the thoroughness of Dr. Balster's examination of Carmi, we cannot say his opinion was rendered arbitrarily. Under these circumstances, MSD's reliance upon his evaluation was not arbitrary and capricious, and its classification of those who pass the examination and those who do not is not "patently arbitrary." Frontiero v. Richardson, 411 U.S. 677, 683, 93 S.Ct. 1764, 1768, 36 L.Ed.2d 583 (1973).

Because Carmi has not established a violation of any federal statutory or constitutional right, he has failed to establish a claim under 42 U.S.C. §§ 1983 and 1985(3).

The judgment of the district court is affirmed.

McMILLIAN, Circuit Judge, concurring.

I join in Judge Lay's opinion except part I. I do not think we need to address the difficult issue of whether §§ 504 and 505 of the Rehabilitation Act, 1 29 U.S.C. §§ 794,

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794a(a)(2) cover employment practices of recipients of federal grants. The district court determined that appellant was not an "otherwise qualified handicapped individual" who suffered discrimination "solely by reason of his handicap," 29 U.S.C. § 794, and in my view that finding was not clearly erroneous. Therefore appellant cannot prevail even if the Act is applicable to discrimination in employment by recipients of federal grants. See Southeastern Community College v. Davis, 442 U.S. 397, 404-405 n.5, 99 S.Ct. 2361,...

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