Anderson v. Erie Lackawanna Ry. Co., C78-1232Y.

• Decision Date: 08 February 1979
• Docket Number: No. C78-1232Y.,C78-1232Y.
• Citation: 468 F. Supp. 934
• Parties: James ANDERSON, Plaintiff, v. ERIE LACKAWANNA RAILWAY CO. et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

468 F. Supp. 934

James ANDERSON, Plaintiff, v. ERIE LACKAWANNA RAILWAY CO. et al., Defendants.

No. C78-1232Y.

United States District Court, D. Ohio, E. D.

February 8, 1979.

Staughton C. Lynd, NE Legal Services, Youngstown, Ohio, for plaintiff.

Thomas R. Skulina, Riemer, Oberdank & Skulina, John J. Horrigan, Cleveland, Ohio, Dennis A. Arouca, Assoc. Labor Counsel, Consolidated Rail Corp., Philadelphia, Pa., for defendants.

MEMORANDUM AND ORDER

WILLIAM K. THOMAS, District Judge.

Alleging jurisdiction under 28 U.S.C.A. § 1331 (federal question) and section 1337 (Congressional acts regulating commerce), plaintiff James Anderson brings this action under section 503 of the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq. (P.L. 93-112, 87 Stat. 357, Sept. 26, 1973, as amended) (the Act).

Plaintiff, alleging to be handicapped, sues defendants Erie Lackawanna Railway Company (Erie) and its successor the Consolidated Rail Corporation (Conrail) for violations of their obligations in contracts with the United States government to engage in affirmative action to employ handicapped individuals. These provisions are made a part of certain government contracts for the procurement of personal property and services by section 503, 29 U.S.C. § 793.¹

Alleging jurisdiction under 28 U.S.C. § 1361, "Action to compel an officer of the United States to perform his duty," Mr. Anderson names Secretary Ray Marshall of the United States Department of Labor as a defendant and seeks an order directing the Secretary to promptly investigate his complaint.

In his complaint, Mr. Anderson alleges: He was employed by Erie as a fireman in April, 1971. An Erie physician found plaintiff's "color perception to be acceptable at this time" and acceptable at two annual physical exams thereafter. In an exam performed in July, 1973, plaintiff failed a test related to being upgraded to engineer "because of an inability to perceive certain colors. . . ." On August 15, 1973, Erie disqualified Mr. Anderson from employment as either an engineer or fireman and he was laid off.

The complaint alleges various efforts on the part of plaintiff to secure employment with Erie in a capacity where visual color perception is not critical to job performance. These efforts have been to no avail. Mr. Anderson has also "brought his situation to the attention of . . . Conrail which . . . has done nothing to correct this situation."

In April, 1976, plaintiff "brought his situation to the attention" of the Department of Labor. Mr. Anderson alleges that even though he has received an "apology for the lengthy delay in processing his complaint" from the Department of Labor's Associate Director for Veterans and Handicapped Workers, he has received no further word as to action on his complaint as of September 22, 1978.

Mr. Anderson requests that the Secretary be ordered to act on his complaint or alternatively, that he be reinstated to employment with defendant Conrail and be awarded back wages and benefits.

Defendants Erie and Conrail have moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(6) on the ground that section 503 of the Act does not grant Mr. Anderson a private cause of action. The motion is now considered upon the complaint, the briefs of the parties, and the section's legislative history.

The parties are in agreement on two points. First, the language of section 503 does not explicitly grant a private cause of action to enforce its provisions. Secondly, there being no explicit grant of a private action, the test to determine whether a private right of action is implicitly granted in section 503 is enunciated in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975).² The application of Cort's test to section 503 is dispositive.

I. ESPECIAL BENEFIT

The first requirement of Cort is that Mr. Anderson be a member of "the class for whose especial benefit the statute was enacted." The Act was obviously enacted for the benefit of handicapped persons. Plaintiff has alleged to be handicapped by virtue of "a partial deficiency in color vision." On this motion to dismiss, the court accepts, as it must, the allegation that Mr. Anderson is handicapped within the meaning of the Act.³

II. LEGISLATIVE INTENT

Mr. Anderson argues that the second requirement of Cort is met because Congress intended that individuals bring private actions to enforce section 503. He argues:

First Congress has expressly stated its intent (1) that a private right of action exists to enforce section 504 of the Act, (2) that sections 503 and 504 should be administered in a "consistent" manner. This intention is set forth in Senate Reports (Labor and Public Welfare Committee) No. 93-1297, Nov. 26, 1974, 1974 U.S. Code Cong. and Admin.News, pp. 6373, 6390-91, as follows: full quotation omitted.

The language of the Senate Report No. 93-1297 relied upon by plaintiff briefly sketches the sanctions to be used by the federal government to achieve contractor compliance with section 504⁴ and concludes that section 504 will "permit a judicial remedy through a private action." The immediately following paragraph opens:

It is intended that sections 503 and 504 be administered in such a manner that a consistent, uniform, and effective Federal approach to discrimination against handicapped persons would result. Emphasis as urged by plaintiff.

1974 U.S.Code Cong. & Admin.News, pp. 6373, 6391. In support, plaintiff cites several cases permitting private suits under section 504 of the Act.⁵

The language of section 504 of the Act parallels 42 U.S.C. § 2000d⁶ in prohibiting discrimination. This prohibition of discrimination in section 504 is different in kind from section 503's requirement of contractual obligations in certain government contracts for the establishment of affirmative action programs in favor of handicapped individuals.⁷ The two sections serve different purposes; and the legislative record as it bears on Congress' intent as to section 503 should not be indiscriminately blurred into the record as to section 504.

Section 503 clearly grants an individual the non-judicial remedy of complaining to the Department of Labor when that individual believes a government contractor has violated contractual obligations of affirmative action. Under National Railroad Passenger Corp. v. National Association of Railroad Passengers, 414 U.S. 453, 458, 94 S.Ct. 690, 693, 38 L.Ed.2d 646 (1974), the statutory grant of a specific remedy indicates a congressional intent to not grant further remedies:

A frequently stated principle of statutory construction is that when legislation expressly provides a particular remedy or remedies, courts should not expand the coverage of the statute to subsume other remedies. "When a statute limits a thing to be done in a particular mode, it includes the negative of any other mode." Botany Mills v. United States, 278 U.S. 282, 289 49 S.Ct. 129, 132, 73 L.Ed. 379 (1929). This principle of statutory construction reflects an ancient maxim — expressio unius est exclusio alterius.

The statutory construction required by National Railroad does not end the inquiry, for as stated there, "even the most basic general principles of statutory construction must yield to clear contrary evidence of legislative intent." National Railroad at 458, 94 S.Ct. at 693. Thus, this inquiry must search the legislative history for "clear . . . evidence of legislative intent" to create a private right under section 503.

Neither have the parties pointed out, nor has the court's research revealed, any mention of a private right of action in the Act's legislative history other than the previously quoted Senate Report No. 93-1297 reference to the enforcement of section 504. Even this explicit reference to a private right of action has been suggested to be only a grant of a judicial review of administrative action in response to violations of section 504. See Lloyd v. Regional Transportation Authority, 548 F.2d 1277 (7th Cir. 1977); Rogers v. Frito-Lay, Inc., 433 F.Supp. 200 (N.D.Tex.1977).

On July 11, 1974 the Department of Labor issued interim regulations for its enforcement of section 503. The ensuing correspondence between the U.S. Senate Committee on Labor and Public Welfare (the Committee) and the Office of the Secretary of the Department of Labor⁸ are made an appendix to S.R.No.93-1297. 1974 U.S. Code Cong. & Admin.News, supra, at p. 6425. In its initial letter, the Committee expressed its dissatisfaction with the Secretary's regulations:

. . . In our view these regulations represent a step backward from the purposes of section 503. . . .

Thereafter, the August 21 letter lists by sections its dissatisfaction with the regulations. The numerous specific and detailed criticisms of the Committee address problems associated with the Department of Labor's internal handling of complaints and imposition of sanctions upon government contractors by that department. The letter is devoid of any suggestion that the Committee objected to the regulations' lack of any mention that the legislation created a private cause of action. Similarly, the Secretary's letter of September 24 in response and the further letter of the Committee on November 11, exhibit a concern with the practical details and workings of the mechanisms to enforce section 503. Both letters lack any suggestion that either the Secretary or the Committee contemplated a private right of action as a part of the section 503 enforcement scheme.

The present regulations of the Secretary for enforcement of section 503 contain no provisions concerning a private right of action. These regulations, having been promulgated by the agency charged with enforcing section 503, are entitled to weight in construing the intent of Congress in enacting the section. Title 41, C.F.R. Pt. 60-741 (promulgated April 16, 1976, 41 F.R. 16148), "Affirmative Action Obligations of Contractors and Subcontractors for Handicapped Workers," section...