914 F.2d 1330 (9th Cir. 1990), 88-4230, Smith v. Barton

Docket Nº:88-4230.
Citation:914 F.2d 1330
Party Name:Glenda SMITH and Ray Martin, Plaintiffs/Appellants, v. Howard BARTON, Larry Barnes, Jack Ugaki, and Brian Wardle, Defendants/Appellees.
Case Date:September 19, 1990
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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914 F.2d 1330 (9th Cir. 1990)

Glenda SMITH and Ray Martin, Plaintiffs/Appellants,


Howard BARTON, Larry Barnes, Jack Ugaki, and Brian Wardle,


No. 88-4230.

United States Court of Appeals, Ninth Circuit

September 19, 1990

Argued and Submitted Nov. 3, 1989.

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[Copyrighted Material Omitted]

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Frederick S. LeClercq, Knoxville, Tenn., for plaintiffs/appellants.

Richard L. Stubbs, Quane, Smith, Howard & Hull, Boise, Idaho, for defendants/appellees.

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

Before BROWNING and FLETCHER, Circuit Judges, and REED, [*] District Judge.

EDWARD C. REED, Jr., Chief District Judge:


This is an action for damages, injunctive and declaratory relief brought by Glenda Smith 1 and Ray Martin. Smith and Martin were former employees of the Idaho Commission for the Blind (the "Commission"). They contend that a restructuring of the Commission, whereby both plaintiffs lost their jobs, violated their rights under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794 (Supp.1990) (the "Rehabilitation Act"). Further, plaintiffs brought claims under 42 U.S.C. Sec. 1983 for alleged violations of their First Amendment right to free association. Plaintiffs appeal from the magistrate's decision 2 granting defendants' motion for summary judgment and dismissing plaintiffs' section 1983 claims. In addition, plaintiffs contend that the magistrate erred in denying them relief on their claims of handicap discrimination under the Rehabilitation Act, in denying them a jury trial, and in excluding a newly discovered audiotape and transcript of a meeting of the Commission.


Plaintiffs Smith and Martin, both totally blind, were former employees of the Commission. The Commission is an Idaho state agency that receives state and federal funding. Smith formerly served as Chief, Field Services; Martin was employed as Chief, Orientation and Adjustment Center. Both Smith and Martin were active members of the National Federation for the Blind ("NFB").

Defendants Howard Barton, Larry Barnes, and Brian Wardle are all former members of the Commission. Defendant Jack Ugaki is a current member of the Commission. All defendants, except Wardle, are sighted. During July of 1984, Defendant Barton spearheaded a reorganization plan that consolidated the positions held by plaintiffs and created a new position, Chief of Rehabilitation Services. Barton justified the reorganization on grounds that the new structure would be more efficient and would prevent federal and state funding cutbacks. The reorganization was approved by defendants Barnes, Ugaki, and Wardle. Plaintiffs were informed that under the reorganization they would continue to be employed at their present salary, but as staff personnel. Plaintiffs were invited to apply for the newly-created position of Chief of Rehabilitation Services, and both did, in fact, apply. Edward Easterling ultimately was appointed to fill the new position.

Plaintiffs' complaint, filed September 21, 1984, raised two basic claims for relief, both arising from the same actions of defendants. First, counts I and II alleged that the reorganization of the Commission constituted constructive discharge because of their blindness, in violation of section 504 of the Rehabilitation Act. Second,

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counts III and IV alleged that the reorganization was a retaliatory measure instituted because of their membership in the NFB. Therefore, plaintiffs' second theory was brought under 42 U.S.C. Sec. 1983, on grounds that the reorganization/constructive discharge also violated their First Amendment right of free association and their Fourteenth Amendment rights to due process and equal protection under the law. 3

The magistrate granted summary judgment dismissing plaintiffs' constitutional claims brought under 42 U.S.C. Sec. 1983, on the ground that they were precluded by the Rehabilitation Act. Denying plaintiffs' timely demand for a jury trial, the magistrate conducted a bench trial on the merits of defendants' alleged violation of section 504 of the Rehabilitation Act. By findings of fact and conclusions of law entered August 1, 1988, the magistrate found that plaintiffs had failed to establish a prima facie case of discrimination under Rehabilitation Act. The magistrate simultaneously entered an order denying plaintiffs' post-trial motion to admit a newly discovered audiotape and transcript of a Commission meeting that was conducted on September 5, 1984.



  1. Standard of Review

    A magistrate's grant of summary judgment is reviewed de novo. Hunt v. Dental Dep't, 865 F.2d 198, 200 (9th Cir.1989). The reviewing court shall view the evidence in the light most favorable to the non-moving party to determine whether the substantive law was applied correctly and whether there was any issue of material fact. Id. See also Liberty Bank of Montana v. Travelers Indem. Co. of America, 870 F.2d 1504, 1505-06 (9th Cir.1989).

  2. Analysis

    Section 504 of the Rehabilitation Act prohibits discrimination against the handicapped in any program or activity receiving federal financial assistance. It provides in pertinent part:

    No otherwise qualified individual with handicaps in the United States, as defined in section 706(8) [29 U.S.C. Sec. 706(8) ], shall, solely by reason of his or her 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 (Supp.1989).

    42 U.S.C. Sec. 1983 provides a remedy for violations of rights secured by the Constitution or federal statutes, where such violations were committed under color of state law. 4 Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir.1986), cert. denied, 479 U.S. 1054, 107 S.Ct. 928, 93 L.Ed.2d 979 (1987).

    In Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), the Supreme Court announced the general rule that a section 1983 claim could be predicated solely on a violation of a federal statute. Id. at 4-8, 100 S.Ct. at 2504-06. In Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981) the Court reiterated two exceptions to the general rule of Thiboutot. Of particular relevance here, the Court held that a section 1983

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    claim, based solely on a violation of a federal statute, does not lie where Congress has foreclosed a section 1983 remedy through a sufficiently comprehensive remedial and enforcement apparatus in the underlying federal statute. Middlesex, 453 U.S. 1, 19-20, 101 S.Ct. 2615, 2625-26, 69 L.Ed.2d 435 (1981) (citing Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 28, 101 S.Ct. 1531, 1545, 67 L.Ed.2d 694 (1981)).

    Relying on Middlesex, the magistrate found that the Rehabilitation Act provided a sufficiently comprehensive remedy to demonstrate congressional intent to supplant section 1983 claims, and therefore granted summary judgment dismissing plaintiffs' First Amendment claims. Defendants urge the same conclusion from this Court.

    1. "Could Have Been Brought "

    The magistrate's conclusion that plaintiffs' section 1983 claims were barred by the Rehabilitation Act is erroneous for two reasons. First, the doctrine of Middlesex only bars section 1983 claims that could have been brought under a separate federal statute which provides remedial devices sufficiently comprehensive to demonstrate a congressional intent to preclude section 1983 claims. Plaintiffs' First Amendment claims could not have been brought under the Rehabilitation Act because they allege violations that are unrelated to issues of handicap discrimination. 5 Indeed, plaintiffs' 1983 claims are not predicated on violations of a federal statute at all, but on alleged violations of their rights under the First Amendment.

    The alleged injuries suffered by plaintiffs are unrelated to their status as handicapped individuals. Their section 1983 claims allege that they suffered injury because of their activities, rather than because of their handicap. Indeed, plaintiffs argue that they suffered two separate injuries, arising from two distinct discriminations: discrimination on account of their blindness, in violation of the Rehabilitation Act, and discrimination on account of the exercise of their rights of free association and speech, in violation of the First Amendment. Although the NFB deals with concerns of the blind, free association and speech claims ought not to be foreclosed by the Rehabilitation Act, since the claims raise issues distinct from the right of blind people to be free from discrimination.

    Furthermore, the authority relied on by the magistrate and cited by defendants is distinguishable from the case at bar. 6 Defendants primarily rely on Tyus v. Ohio Dept. of Youth Serv., 606 F.Supp. 239 (S.D.Ohio 1985), for the proposition that plaintiffs' First Amendment section 1983 claims are precluded by the Rehabilitation Act.

    In Tyus, the plaintiff was a former employee of the Ohio Department of Youth Services, who alleged that he was terminated from his employment because he suffered from epilepsy. Id. at 241. He brought claims alleging violations of section 504 of the Rehabilitation Act, and his Fourteenth Amendment rights of due process and equal protection. Relying on Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984), the Tyus court ruled that the Rehabilitation Act is sufficiently comprehensive to preclude suits under section 1983, "on either statutory or constitutional grounds, based upon claims that could be brought under the provisions of the Rehabilitation Act." Tyus, 606 F.Supp. at 244. The court went on to point out that plaintiff's section 1983 claim, brought pursuant to the due process and equal protection...

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