Strathie v. Department of Transp.
| Decision Date | 08 September 1983 |
| Docket Number | No. 82-1698,82-1698 |
| Parties | 32 Fair Empl.Prac.Cas. 1561, 32 Empl. Prac. Dec. P 33,808, 13 Ed. Law Rep. 274, 1 A.D. Cases 486 STRATHIE, James, on behalf of himself and all others similarly situated v. DEPARTMENT OF TRANSPORTATION, Larsen, Thomas, Acting Secretary of Transportation and Secretary of Transportation Designee, individually and in his official capacity, and Gaffney, Francis, Director, Bureau of Traffic Safety, individually and in his official capacity, and McElhaney, John F., Chief, Public Transportation Division, individually and in his official capacity, and Department of Education, Commonwealth of Pennsylvania, and Scanlon, Robert G., Secretary of Education, individually and in his official capacity, and Council Rock School District, their officers and agents, including but not limited to Byrne, John, Superintendent, Council Rock School District, individually and in his own capacity. Appeal of James STRATHIE. |
| Court | U.S. Court of Appeals — Third Circuit |
Stephen F. Gold (argued), American Civil Liberties Foundation of Pennsylvania, Seth F. Kreimer, Susan Hirsch, Southeastern Pennsylvania Legal Services For The Deaf, Philadelphia, Pa., Gary Finder, Law Student, for appellant.
LeRoy S. Zimmerman, Atty. Gen., Carl Vaccaro (argued), Deputy Atty. Gen., Philadelphia, Pa., for appellees.
Before SEITZ, Chief Judge, and SLOVITER and VAN DUSEN, Circuit Judges.
James Strathie appeals an order of the district court granting judgment in favor of appellees in his civil rights, 547 F.Supp. 1367, suit after a final hearing. The district court exercised jurisdiction under 28 U.S.C. Sec. 1331 and Sec. 1343. This Court has jurisdiction under 28 U.S.C. Sec. 1291 (1976).
The district court found the following facts, which are undisputed on appeal. Appellant Strathie was hired and trained as a school bus driver by Van Trans, Inc., a private bus company which provides transportation for students in certain Pennsylvania public school districts. After completing his training, Strathie took and passed the school bus driver's license test required by the Pennsylvania Department of Transportation. Strathie was issued a Class 4 license, which authorized him to drive a school bus.
After working for Van Trans as a school bus driver for one day, Strathie was notified by the Department of Transportation that his Class 4 license was suspended indefinitely and until his competency was established. The reason for the suspension was that Strathie wore a hearing aid, in violation of one of the Department's regulations, 67 Pa.Code Sec. 71.3(b)(5). 1 This regulation provides that in order to obtain a school bus driver's license, an applicant must have "[n]o hearing loss greater than 25 decibels at frequencies of 500, 1,000, and 2,000 in the better ear, without a hearing aid." The regulation was formulated by the Medical Advisory Board of the Department of Transportation, and adopted by the Department effective July 1, 1970.
At the time his school bus driver's license was suspended, Strathie was in every respect other than his hearing, qualified under Department of Transportation regulations to continue to be licensed to drive a school bus. With the use of his hearing aid, Strathie's hearing is corrected within the decibel requirements of 67 Pa.Code Sec. 71.3(b)(5).
On February 9, 1979, Strathie filed a class action complaint in the district court, naming as defendants the Department of Transportation, the Pennsylvania Department of Education, and five named officials of those agencies. The complaint charges that defendants' suspension of the school bus driver's licenses of the class violated the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution; the Civil Rights Act of 1871, 42 U.S.C. Sec. 1983 (1976); section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794 (Supp.1983); and certain provisions of Pennsylvania law. The complaint seeks a declaration that the policies, practices and procedures of the defendants are unconstitutional and violated federal and state statutes; a permanent injunction prohibiting defendants from enforcing those policies, practices and procedures; reinstatement of Strathie's school bus driver's license at a seniority status as if his license has never been suspended; compensatory damages including back pay; and attorney's fees.
On May 12, 1979, the district court ordered that the action be maintained as a class action, and certified a class consisting of all persons who have had their Class 4 school bus driver's licenses suspended pursuant to the alleged discriminatory regulations of the defendants.
Subsequently, based on video-tape testimony, depositions and other exhibits, the district court entered judgment for defendants on all of plaintiffs' claims. 2 Strathie's appeal challenges the district court's dismissal of his individual claims under the Rehabilitation Act 3 and the Fourteenth Amendment. 3a We will not address Strathie's appeal with regard to the Fourteenth Amendment because he relies on a legal theory that was not presented to the district court. However, we reject appellees' contention that the Rehabilitation Act claim was not raised below.
In enacting and amending section 504 of the Rehabilitation Act, Congress "made a commitment to the handicapped, that, to the maximum extent possible they shall be fully integrated into the mainstream of life in America." S.Rep. No. 890, 95th Cong., 2d Sess. 39 (1978). Section 504 provides, in pertinent part, that:
No otherwise qualified handicapped individual ... 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. Section 504 creates a private right of action in favor of persons who allege to have been subjected to illegal discrimination based on handicap. NAACP v. Medical Center, Inc., 599 F.2d 1247, 1258 (3d Cir.1979). 4
In order to make out a case under section 504 of the Rehabilitation Act, a plaintiff must prove (1) that he is a "handicapped individual" under the Act, (2) that he is "otherwise qualified" for the position sought, (3) that he was excluded from the position sought solely by reason of his handicap, and (4) that the program or activity in question receives federal financial assistance. See Doe v. New York University, 666 F.2d 761, 774 (2d Cir.1981).
It is undisputed that Strathie is a handicapped person, and that his license was suspended solely by reason of his handicap. With regard to federal funding, the parties have stipulated that both the Pennsylvania Department of Transportation and the Department of Education receive federal financial assistance. Thus, the school bus driver licensing program qualifies as a recipient of federal funds for purposes of section 504, regardless of whether any of the federal funding in question is earmarked for that program. Le Strange v. Consolidated Rail Co., 687 F.2d 767 (3d Cir.1982), cert. granted, --- U.S. ----, 103 S.Ct. 1181, 75 L.Ed.2d 429 (1983). See also Grove City College v. Bell, 687 F.2d 684 (3d Cir.1982), cert. granted, --- U.S. ----, 103 S.Ct. 1181, 75 L.Ed.2d 429 (1983) (Title IX case).
Thus, the principal issue presented in this appeal is whether Strathie is "otherwise qualified" to be a school bus driver. Strathie bears the ultimate burden of proof as to this issue. See Doe v. New York University, 666 F.2d at 776-77; NAACP v. Wilmington Medical Center, 657 F.2d 1322, 1332 (3d Cir.1981). 5
In Southwestern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979), the United States Supreme Court held that an "otherwise qualified" handicapped individual is one who can meet all of a program's requirements in spite of his handicap. Id. at 406, 99 S.Ct. at 2367. In dictum, however, the Court indicated that an individual may be "otherwise qualified" in some instances even though he cannot meet all of a program's requirements. This is the case when the refusal to modify an existing program to accommodate the handicapped individual would be unreasonable, and thereby discriminatory. Id. at 412-13, 99 S.Ct. at 2370; Prewitt v. United States Postal Service, 662 F.2d at 305 (). See Simon v. St. Louis County, 656 F.2d 316 (8th Cir.1981), cert. denied, 455 U.S. 976, 102 S.Ct. 1485, 71 L.Ed.2d 688 (1982); Tatro v. State of Texas, 625 F.2d 557 (5th Cir.1980).
In Davis, the Supreme Court indicated that two factors pertain to the reasonableness of a refusal to accommodate a handicapped individual. First, requiring accommodation is unreasonable if it would necessitate modification of the essential nature of the program. See Southwestern Community College v. Davis, 442 U.S. at 410, 413, 99 S.Ct. at 2369, 2370 (); 29 C.F.R. Sec. 1613.705 (1983) () (selection criteria which screen out handicapped individuals must pertain to essential functions of the program in question). Second, requiring accommodation is unreasonable if it would place undue burdens, such as extensive costs, on the recipient of federal funds. Davis, 442 U.S. at 412, 99 S.Ct. at 2370; Nelson v. Thornburgh, at 379-382.
Notably absent from the Supreme Court's opinion in Davis, however, is any discussion of the scope of judicial review with regard to the reasonableness of a refusal to accommodate a handicapped individual. Program administrators surely are entitled to some measure of judicial deference in this matter, by reason of their experience with and knowledge of the program in question. See ...
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