709 F.2d 1235 (9th Cir. 1983), 81-5996, Meyerson v. State of Ariz.

Docket Nº:81-5996.
Citation:709 F.2d 1235
Party Name:Lee MEYERSON, Plaintiff-Appellant, v. The STATE OF ARIZONA; Arizona Board of Regents; Ralph M. Bilby; Rudy E. Campbell; Esther N. Capin; Earl H. Carroll; Thomas Chandler; William G. Payne; William P. Reilly; Tio A. Tachias; Renee Marler; John Schwada; Paige E. Mulhollan; Karl H. Dannenfeldt; Joyce Foster; Guido Weigand; Austin Jones; Leonard D. Goo
Case Date:May 09, 1983
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1235

709 F.2d 1235 (9th Cir. 1983)

Lee MEYERSON, Plaintiff-Appellant,

v.

The STATE OF ARIZONA; Arizona Board of Regents; Ralph M.

Bilby; Rudy E. Campbell; Esther N. Capin; Earl H.

Carroll; Thomas Chandler; William G. Payne; William P.

Reilly; Tio A. Tachias; Renee Marler; John Schwada;

Paige E. Mulhollan; Karl H. Dannenfeldt; Joyce Foster;

Guido Weigand; Austin Jones; Leonard D. Goodstein; Peter

Killeen; John Does I thru V; and Jane Does I thru V,

Defendants-Appellees.

No. 81-5996.

United States Court of Appeals, Ninth Circuit

May 9, 1983

Argued and Submitted Dec. 14, 1982.

Page 1236

Thomas E. Littler, Charles D. Roush, Treon, Warnicke & Roush, Phoenix, Ariz., for plaintiff-appellant.

Stephen K. Smith, Phoenix, Ariz., for defendants-appellees.

Appeal from the United States District Court for the District of Arizona.

Before WALLACE and FERGUSON, Circuit Judges, and GRANT, [*] District Judge.

WALLACE, Circuit Judge:

Meyerson, a handicapped psychology professor at Arizona State University (the University), charged the University with discrimination under four different statutory provisions: (1) section 504 of the Rehabilitation Act of 1973, as amended (the Act), 29 U.S.C. Sec. 794, (2) section 503 of the Act, 29 U.S.C. Sec. 793, (3) 42 U.S.C. Sec. 1983, and (4) the Revenue Sharing Act, 31 U.S.C. Secs. 1242, 1244(a). The district judge granted the University's motion for summary judgment on each statutory claim. Meyerson v. Arizona, 507 F.Supp. 859 (D.Ariz.1981); Meyerson v. Arizona, 526 F.Supp. 129 (D.Ariz.1981). Meyerson appeals the entry of summary judgment only on his claims under section 503, section 504, and section 1983. We affirm.

I

Meyerson is a professor of psychology whose hearing is impaired to the extent that he must depend upon lip reading skills. He also suffers from a hip ailment, the result of a childhood disease. The University does not contest Meyerson's handicapped status and admits that it was aware of his condition when he was hired in 1967. Meyerson charges that the University has discriminated against him in four ways: by preventing him from advancing and fostering his fields of study, by failing to provide him with sufficient resources for research and study, by impairing his opportunities for professional development, and by paying him a salary which is not commensurate with his experience or service.

After pursuing administrative remedies through the University, Meyerson filed a section 503 complaint with the United States Department of Labor (the Department). The Department found that the University had discriminated against Meyerson, and has apparently sought to alleviate some of the conditions at the University. Although the parties dispute the effect of the Department's activities, Meyerson admits that "the situation at ASU with regard to discrimination has improved" since he pursued his legal remedies.

Meyerson filed a complaint in district court asserting claims under sections 503 and 504 of the Act, section 1983, and section 1242 of the Revenue Sharing Act. The University moved for summary judgment on all four claims. The district court granted the University's motion on the section 503 claim and dismissed without prejudice Meyerson's claim under the Revenue Sharing Act for failure to exhaust administrative remedies. 507 F.Supp. at 860-62, 864. The district judge also denied without prejudice the University's motion on the section 504 claim because of an inadequate record. Id. at 862-63. He also denied the University's motion on the section 1983 claim, pending the resolution of the section 504 issue. The district judge additionally held that Meyerson could not assert a section 1983 claim based on section 503. Id. at 864.

After discovery, the parties filed cross-motions for summary judgment. The district judge granted the University's motion on the section 504 and section 1983 claims.

Page 1237

526 F.Supp. at 129. On appeal, Meyerson has abandoned his claim under the Revenue Sharing Act and his section 1983 claim based on section 504. He appeals from the summary judgment entered on his sections 503 and 504 claims, and on his section 1983 claim based on section 503.

II

Section 504 of the Act prohibits discrimination against the handicapped. It states in part that:

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....

29 U.S.C. Sec. 794. In a case decided after Meyerson filed this appeal, we stated that a private action under section 504 "cannot be maintained unless a primary objective of the federal financial assistance is to provide employment." Scanlon v. Atascadero State Hospital, 677 F.2d 1271, 1272 (9th Cir.1982) (Scanlon ). Accord United States v. Cabrini Medical Center, 639 F.2d 908 (2d Cir.1981); Carmi v. Metropolitan St. Louis Sewer District, 620 F.2d 672, 674-75 (8th Cir.), cert. denied, 449 U.S. 892, 101 S.Ct. 249, 66 L.Ed.2d 117 (1980); 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); contra Jones v. Metropolitan Atlanta Rapid Transit Authority, 681 F.2d 1376, 1378-80 (11th Cir.1982). The district court held that Meyerson failed to clear this initial hurdle.

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