Brown v. American Home Products Corp.

• Decision Date: 28 August 1981
• Docket Number: Civ. A. No. 81-2129.
• Parties: Norman C. BROWN, Plaintiff, v. AMERICAN HOME PRODUCTS CORP., Ayerst Laboratories Division, Defendant.
• Court: U.S. District Court — District of Kansas

520 F. Supp. 1120

Norman C. BROWN, Plaintiff, v. AMERICAN HOME PRODUCTS CORP., Ayerst Laboratories Division, Defendant.

Civ. A. No. 81-2129.

United States District Court, D. Kansas.

August 28, 1981.

Arthur A. Benson, II, Benson & McKay, Kansas City, Mo., Mark R. Singer, Overland Park, Kan., for plaintiff.

Thomas J. Wheatley, Timothy K. McNamara, Lathrop, Koontz, Righter, Clagett & Norquist, Kansas City, Mo., John J. Jurcyk, Jr., McAnany, Van Cleave & Phillips, Kansas City, Kan., for defendant.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

In June, 1970, plaintiff was hired by defendant as a full-time warehouseman. Plaintiff filled that position for a period of roughly nine years, but in August, 1979, defendant terminated plaintiff's employment. Plaintiff alleges in substance that his termination was precipitated by the fact that plaintiff is a diabetic, and thus a handicapped person within the meaning of the Rehabilitation Act of 1973, 29 U.S.C. § 706(6). Plaintiff further alleges that his termination occurred without efforts by defendant to accommodate plaintiff's handicap.

Plaintiff alleges that defendant is a federal contractor not exempt from the provisions of § 503 of the Rehabilitation Act, codified at 29 U.S.C. § 793, which requires certain federal contractors to "take affirmative action to employ and advance in employment qualified handicapped individuals." § 503(a). Pursuant to § 503(b), plaintiff filed a charge of handicap discrimination with the Office of Federal Contracts Compliance Programs hereinafter OFCCP. This agency found the facts to be as stated by plaintiff, and attempted to achieve a reconciliation between plaintiff and defendant, but this attempt was not successful.

Plaintiff then brought this action, alleging a violation of § 503 and praying money damages, reinstatement, back pay and other relief. Defendant has moved this Court to dismiss the complaint on the grounds that § 503 does not allow plaintiff a private cause of action.

The issue before the Court may be simply stated: Can a private cause of action be implied under § 503 of the Rehabilitation Act?

STATUTORY BASIS OF SUIT

Section 503 states, in part, as follows: "Employment under Federal contracts

"(a) Amount of contracts or subcontracts —Provision for employment and advancement of qualified handicapped individuals —Regulations. Any contract in excess of $2,500 entered into by any Federal department or agency for the procurement of personal property and nonpersonal services (including construction) for the United States shall contain a provision requiring that, in employing persons to carry out such contract, the party contracting with the United States shall take affirmative action to employ and advance in employment qualified handicapped individuals as defined in section 7(7) 29 USCS § 706(7). The provisions of this section shall apply to any subcontract in excess of $2,500 entered into by a prime contractor in carrying out any contract for the procurement of personal property and nonpersonal services (including construction) for the United States. The President shall implement the provisions of this section by promulgating regulations within ninety days after the date of enactment of this section enacted Sept. 26, 1973.

"(b) Administrative enforcement—Complaints —Investigations—Departmental action. If any handicapped individual believes any contractor has failed or refuses to comply with the provisions of his contract with the United States, relating to employment of handicapped individuals, such individual may file a complaint with the Department of Labor. The Department shall promptly investigate such complaint and shall take such action thereon as the facts and circumstances warrant, consistent with the terms of such contract and the laws and regulations applicable thereto." Id. Codified at 29 U.S.C. § 793.

On its face, § 503 is a directive to federal contractors to include affirmative action clauses in employment contracts. This section contains an administrative remedy for employees and other handicapped individuals by requiring the Department of Labor to investigate and take action as necessary upon proper complaint. Finally, § 503 directs the President to promulgate regulations concerning the affirmative action clause. There is no provision for a private cause of action for violations of the section.

Regulations were duly promulgated for administration of § 503. These may be found at 41 C.F.R. § 60-741, et seq. Section 60-741.4 contains an affirmative action clause to be inserted into every covered government contract or subcontract. Section 60-741, Subpart B, contains regulations concerning the complaint procedure and enforcement of the affirmative action clause. Section 741.26 authorizes aggrieved individuals to file written complaints with the Director of the OFCCP. Section 60-741.28 authorizes the Director to take legal action, conduct hearings, and achieve compliance by informal means, including conciliation and persuasion, whenever possible. At no place in the regulations does one find provision for a private cause of action.

In 1978, Congress amended the Rehabilitation Act to include § 505, part of which is pertinent to this action:

"(b) In any action or proceeding to enforce or charge a violation of a provision of this subchapter 29 USCS §§ 790 et seq., the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." Id. Codified at 29 U.S.C. § 794a.

This amendment, however, does not expressly authorize a private suit to enforce violations of § 503.

Notwithstanding the lack of statutory authority, plaintiff claims a private cause of action may be implied from the statute itself. The question whether a private cause of action may be implied for violations of § 503 has been before many federal courts. Slightly more than one half of them have refused to find an implied private right of action. See e. g., Moon v. Atchison, Topeka and Santa Fe Ry. Co., No. 79-4187 (D.Kan., unpublished, 1980); Doss v. General Motors Corp., 478 F.Supp. 139 (C.D.Ill.1979); Anderson v. Erie Lackawanna Ry. Co., 468 F.Supp. 934 (E.D.Ohio 1979); Wood v. Diamond State Telephone Co., 440 F.Supp. 1003 (D.Del.1977); Moon v. Roadway Express Inc., 439 F.Supp. 1308 (N.D. Ga.1977). Three Circuit Courts of Appeals have addressed the issue, and all of them have refused to imply a cause of action. Rogers v. Frito-Lay, Inc., 611 F.2d 1074 (5th Cir. 1980); Simpson v. Reynolds Metals Co., Inc., 629 F.2d 1226 (7th Cir. 1980); Hoopes v. Equifax, Inc., 611 F.2d 134 (6th Cir. 1979).

A substantial number of federal courts, however, have allowed a private cause of action for violations of § 503. E.g., Hart v. County of Alameda, 485 F.Supp. 66 (N.D. Cal.1979); Clarke v. FELEC Services, Inc., 489 F.Supp. 165 (Alas.1980); Drennon v. Philadelphia General Hospital, 428 F.Supp. 809 (E.D.Pa.1977); Duran v. City of Tampa, 430 F.Supp. 75 (N.D.Fla.1977); California Paralyzed Veterans Ass'n. v. F.C.C., 496 F.Supp. 125 (C.D.Cal.1980); Chaplin v. Consolidated Edison Co. of New York, Inc., 482 F.Supp. 1165 (S.D.N.Y.1980).

The dispositive factor in deciding whether or not a private cause of action exists is the intent of Congress to fix a private remedy for violations of § 503. Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979) hereinafter Touche Ross; Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979) hereinafter TAMA. The proper standard to be applied to determine an implied right of action under a statute not explicitly granting one is found in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26 (1975), where the Court said:

"In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. First, is the plaintiff `one of the class for whose especial benefit the statute was enacted,' —that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? ... Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? ... And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? ..." Citations omitted.

An analysis of these factors reveals that § 503 does not compel that a private cause of action be implied.

I. Is plaintiff a member of the class for whose benefit section 503 was enacted?

Even courts which deny a private right of action under § 503 recognize handicapped persons as a group singled out by Congress in the Rehabilitation Act for special treatment. Anderson v. Erie Lackawanna Ry. Co., supra; Wood v. Diamond State Telephone Co., supra; Moon v. Roadway Express, Inc., supra. The purpose of the Act is to give this class of persons special rights. 29 U.S.C. § 701(8). The setting aside of a definite group for special treatment contrasts sharply with the general prohibitory language found in a criminal statute, which does not create a private cause of action. Cannon v. University of Chicago, 441 U.S. 677, 690, 99 S.Ct. 1946, 1954, 60 L.Ed.2d 560 (1979) hereinafter Cannon. The Act does more than create a duty on the part of persons for the benefit of the public at large; it is specifically aimed at the problems of handicapped persons. Hart v. County of Alameda, 485 F.Supp. at 75. Nonetheless, it is too simplistic to end the inquiry here; the Supreme Court would have us determine whether § 503 creates any rights in the plaintiff class. Cort v. Ash, 422 U.S. at 78, 95 S.Ct. at 2087.

Section 503 creates a duty on the part of federal contractors to provide and adhere to affirmative...