640 F.Supp. 1088 (N.D.Ill. 1986), 85 C 1394, Foss v. City of Chicago

Docket Nº:85 C 1394.
Citation:640 F.Supp. 1088
Party Name:Richard FOSS, Plaintiff, v. CITY OF CHICAGO, a municipal corporation; Louis Galante, City of Chicago Fire Commissioner; Charles Pounian, Commissioner of Personnel, Defendants.
Case Date:August 01, 1986
Court:United States District Courts, 7th Circuit, Northern District of Illinois

Page 1088

640 F.Supp. 1088 (N.D.Ill. 1986)

Richard FOSS, Plaintiff,


CITY OF CHICAGO, a municipal corporation; Louis Galante, City of Chicago Fire Commissioner; Charles Pounian, Commissioner of Personnel, Defendants.

No. 85 C 1394.

United States District Court, N.D. Illinois, Eastern Division.

Aug. 1, 1986

Page 1089

Miriam N. Geraghty, Kinoy, Taren, Geraghty & Potter, Chicago, Ill., for plaintiff.

Darka Papushkewych, Victoria J. Sterling, Ass't Corp. Counsels, Chicago, Ill., for defendants.

Claire T. Hartfield, Friedman & Koven, Chicago, Ill., Council for Disability Rights, Inc., filed an amicus curiae brief in opposition to the motion.


MORAN, District Judge.

The Chicago Fire Department did not allow plaintiff Richard Foss to return to work following a blackout on the job and terminated him when his medical leave expired. Foss alleges that he is fully qualified for his job and so the Department's treatment of him is discrimination because of a handicap, in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the State and Local Fiscal Assistance Act, 31 U.S.C. § 6721. The defendants have moved to dismiss on jurisdictional grounds. The only issue for the motion is whether the alleged discrimination is sufficiently related to a program or activity which receives federal financial assistance to trigger the protections of either statute. This court finds it is not and dismisses both claims.


Plaintiff describes his handicap as a "recurrent high grade ventricular arrythmia," and his status as a handicapped person is not disputed for purposes of this motion. Taking his allegations as true, he began work as a firefighter in 1967 and was promoted to engineer in 1973. After his loss of consciousness on the job in January 1984 he was placed on medical leave. The Fire Department's medical director refused to allow him to return to work, despite two letters from his treating physician authorizing his return. He is currently receiving heart-lung disability benefits.

After discovery, the parties agreed to a stipulation on federal financial assistance, which may be summarized as follows: The City of Chicago receives federal revenue sharing funds but none of these funds is allocated to the Chicago Fire Department. The Fire Department does, however, receive Federal Community Development Block Grant Funds for a First Aid Care Team (FACT) Program. That program, administered for the Department by Hull House Association, trains unemployed low income residents of a Chicago housing project in first aid skills and employs them as emergency medical technicians in the area of their project. Also, the City's Office of Emergency Preparedness and Disaster

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Services (EPDS), which develops the City's disaster plan, is administratively part of the Fire Department. That office additionally maintains auxiliary firefighting equipment and trains volunteers to run it for use in very large fires. Its operations are 50 per cent reimbursed by Federal Emergency Management Assistance Funds. Foss had no duties relating either to FACT or EPDS. Each Chicago firefighter is covered by Federal Public Safety Officers Death Benefits, 42 U.S.C. § 3796, providing $50,000 to dependents if the fireman is killed in the line of duty. Firefighters who reach the rank of Fire Lieutenant or Paramedic Field Officer may apply to the National Fire Academy, established by 15 U.S.C. § 2206, for professional education and training. If successful, the training is provided at no cost to either the Department or the firefighter.

There are, therefore, three kinds of funding programs upon which the plaintiff relies. Through revenue sharing the City receives undesignated funds which it can commingle with its general revenues or which it, in its sole discretion, can earmark for particular programs. FACT and EPDS involve funds earmarked by the federal government and received by the City. Death benefits and education expenses are paid by federally designated funds but not to the City.


I. The Program-Specific Requirement

Section 504 of the Rehabilitation Act, codified at 29 U.S.C. § 794, provides in relevant 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 participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance....

Section 6716(b) of the State and Local Fiscal Assistance Act provides in relevant part:

The following prohibitions and exemptions also apply to a program or activity of a State government or unit of general local government when the government receives a payment under this chapter: ... (2) a prohibition against discrimination against an otherwise qualified handicapped individual under section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794).

The Rehabilitation Act, like Titles VI and IX of the Civil Rights Act, does not reach all discrimination everywhere, but rather only discrimination "by federal grant recipients." Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 626, 104 S.Ct. 1248, 1250, 79 L.Ed.2d 568 (1984). Further, the ban on discrimination does not apply to all activities of every recipient of federal funds; rather, the ban is "program-specific," i.e., the discrimination must relate to the federally funded program or activity. Id. at 635-636, 104 S.Ct. at 1255. Similarly, actionable discrimination under the Revenue Sharing Act is limited to discrimination in a program or activity that receives revenue sharing funds. Dowdell v. City of Apopka, 698 F.2d 1181, 1187 (11th Cir.1983).

These requirements are necessary because neither the Rehabilitation Act nor the Revenue Sharing Act are statutes which have as a single goal bringing an end to discrimination like, for example, Title VII of the Civil Rights Act. Rather, the antidiscrimination sections of these statutes, like those of Title VI or Title IX of the Civil Rights Act, seek to strike a balance between the federal policy against discrimination and the various policy goals which give rise to federal funding. See Iron Arrow Honor Society v. Heckler, 702 F.2d 549, 557 (5th Cir.), vacated as moot, 464 U.S. 67, 104 S.Ct. 373, 78 L.Ed.2d 58 (1983) (Titles VI and IX). As strong as the federal policy against discrimination is, Congress felt that the goals of other programs from school lunches to highway construction are also entitled to some weight.

Congress struck the balance at "an arrangement in the nature of a contract."

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United States Department of Transportation v. Paralyzed Veterans of America, 477 U.S. ----, ----, 106 S.Ct. 2705, 2711, 91 L.Ed.2d 494 (1986). An entity which wanted federal financial assistance had to accept, as a price of that aid, that it could not use the aid for discriminatory ends. Conversely, if it wanted to discriminate, it had to do so without federal money. Id. Cf. Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 1539-40, 67 L.Ed.2d 694 (1981). Ending discrimination was balanced with the needs of the "innocent beneficiaries" of the federal programs. Iron Arrow, 702 F.2d at 557; Board of Public Instruction of Taylor County v. Finch, 414 F.2d 1068, 1075 (5th Cir.1969). The result is not necessarily an end to discrimination, but it is what President Kennedy called "simple justice": "that public funds ... not be spent in any fashion which encourages, entrenches, subsidizes or results in ... discrimination." President's Second Civil Rights Message to Congress, June 19, 1963, quoted in Iron Arrow, 702 F.2d at 551.

The balance which Congress struck and the contractual nature of the arrangement explains the program-specific requirement. The statute was written to cover only situations where the federal assistance and the discrimination had a significant degree of contact with each other. Requiring a relationship between the discriminatory act and a federally funded "program or activity" was a way of ensuring that that degree of contact would be present. Finch, 414 F.2d at 1077. Under these statutes, the primary remedy for discrimination is agency action to cut off the federal funding. Cf. Pennhurst, 451 U.S. at 28, 101 S.Ct. at 1545. Congress felt that if the discrimination was unrelated or tangential to the goals of the funding, then the funding should go on. If the discrimination was in the federal program itself or supported by federal funds, or infected the federal program, then the policy against discrimination should prevail and funding should stop. See Iron Arrow, 702 F.2d at 562; Finch, 414 F.2d at 1078. The same considerations apply to the private right of action, and the definition of "program or activity" is the same whether the plaintiff is suing under § 504, Title VI or Title IX. Darrone, 465 U.S. at 636, 104 S.Ct. at 1255-56. See also Brown v. Sibley, 650 F.2d 760, 767-768 (5th Cir.1981) (similarity of anti-discrimination provisions of § 504, Title VI and Title IX).

II. Characterizing the Program

Foss argues that for purposes of his claim the Chicago Fire Department should be characterized as a federally funded program or activity. It could have received revenue sharing funds, did receive funds for FACT and EDPS and benefits from the federal programs directed to firefighters. If the entire department is a federal program, then employment discrimination by the department would have the relationship to federal funds which § 504 requires. Defendants urge however that the specific use of the federal funds governs characterization of the relevant program or activity. They point out that no revenue-sharing funds reached the Fire Department, and maintain therefore that the entire Department cannot be a federally funded program or activity. They further note that Foss was not employed in...

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