Cain v. Archdiocese of Kansas City, Kan.

• Decision Date: 03 March 1981
• Docket Number: Civ. A. No. 79-1554.
• Citation: 508 F. Supp. 1021
• Parties: Cynthia E. CAIN, Plaintiff, v. ARCHDIOCESE OF KANSAS CITY, KANSAS et al., Defendants.
• Court: U.S. District Court — District of Kansas

508 F. Supp. 1021

Cynthia E. CAIN, Plaintiff, v. ARCHDIOCESE OF KANSAS CITY, KANSAS et al., Defendants.

Civ. A. No. 79-1554.

United States District Court, D. Kansas.

March 3, 1981.

Dale V. Berning, Fred W. Phelps, Chtd., Topeka, Kan., for plaintiff.

J. Nick Badgerow, McAnany, Van Cleave & Phillips, P. A., Kansas City, Kan., for defendants.

MEMORANDUM & ORDER

SAFFELS, District Judge.

This case comes before the Court for determination of defendants' motion to dismiss for failure to state a claim upon which relief may be granted and lack of subject matter jurisdiction. This case is a civil rights action brought under 42 U.S.C. §§ 1983, 1985, 1986 and 1988; the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701, et seq.; and the First, Fifth, Ninth and Fourteenth Amendments to the United States Constitution. Plaintiff is a white, American female; defendants own, operate and maintain the Assumption Parish School, a parochial elementary school located in Topeka, Kansas. A written contract was entered into on June 2, 1979, whereby defendants employed plaintiff to teach grade school classes. Defendants terminated the contract on August 23, 1979, before the actual school session began. In a note dated August 27, 1979, and signed by the Reverend Thomas Kearns, Pastor, and Sister Mary Corita Conlan, Principal of Assumption Grade School, the reason given for terminating the contract was plaintiff's "medical problem requiring medication." The note states: "At this time, medication is not maintaining the desired physical stability necessary for a full-time teaching position ..." Plaintiff claims that her medical problem is nothing more than a very mild case of petitmal epilepsy, which is medically controlled through a minimum dosage of the drug Dilantin, and which has not interfered with her duties in her three years experience as a full-time elementary school teacher. Plaintiff characterizes the termination of the employment contract as an unlawful discharge solely on the basis of the physical handicap of epilepsy.

REHABILITATION ACT

Section 504 of the Rehabilitation Act of 1979 (29 U.S.C. § 794) prohibits discrimination against any otherwise qualified handicapped individual in programs or activities receiving federal financial assistance. Defendants contend that the Court lacks subject matter jurisdiction over plaintiff's claim asserted pursuant to Section 504 because no private cause of action is authorized or implied by the statute.

While a private cause of action is not expressly created by Section 504, every United States Court of Appeals which has considered the question has implied a private right of action to enforce the Act. Leary v. Crapsey, 566 F.2d 863 (2d Cir. 1977); Halderman v. Pennhurst State School & Hospital, 612 F.2d 84 (3d Cir. 1979); Davis v. Southeastern Community College, 574 F.2d 1158 (4th Cir. 1978), rev'd. on other grounds, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979); Camenisch v. University of Texas, 616 F.2d 127 (5th Cir. 1980); Lloyd v. Regional Transportation Authority, 548 F.2d 1277 (7th Cir. 1977); United Handicapped Federation v. Andre, 558 F.2d 413 (8th Cir. 1977).

In Coleman v. Darden, 595 F.2d 533, 538, cert. denied 444 U.S. 927, 100 S.Ct. 267, 62 L.Ed.2d 184 (1979), the Tenth Circuit Court of Appeals has stated that a private right of action may have been created by Section 504, citing several cases which have so held. Although to date there have been no opinions of the Supreme Court treating the question on its merits, the Court impliedly recognized a private right of action by vacating the judgment in Kruse v. Campbell, 431 F.Supp. 180 (E.D.Va.1977), with directions to the district court to decide the claim of the private plaintiff based on Section 504 of the Rehabilitation Act. 434 U.S. 808, 98 S.Ct. 38, 54 L.Ed.2d 65 (1977). In the one case under Section 504 to reach the Supreme Court, the issue of a private cause of action was unnecessary to the ruling. Southeastern Community College v. Davis, 442 U.S. 397, 404 n.5, 99 S.Ct. 2361, 2366, 60 L.Ed.2d 980 (1979).

Several of the cases cited by defendants arose under Section 503 of the Rehabilitation Act. Rogers v. Frito-Lay, Inc., 433 F.Supp. 200 (N.D.Tex.1977); Moon v. Roadway Express, Inc., 439 F.Supp. 1308 (N.D. Ga.1977); Anderson v. Erie Lackawanna Railway Co., 468 F.Supp. 934 (D.Ohio 1979). Section 503 deals with government contractors, while Section 504 deals with recipients of government grants. A majority of courts has held that no private cause of action may be implied under Section 503, in distinction to the majority view of Section 504. See, e. g., Rogers v. Frito-Lay, Inc., 611 F.2d 1074 (5th Cir. 1980); Hoopes v. Equifax, Inc., 611 F.2d 134 (6th Cir. 1979); Moon v. The Atchison, Topeka & Santa Fe Railway Co. No. 79-4187 (D.Kan., unpublished, Mar. 10, 1980) (Rogers, J.).

This Court agrees with the majority view, and finds that a private right of action under Section 504 may be maintained by a handicapped person.

A second question which must be reached in connection with defendants' motion to dismiss is whether "exhaustion" of administrative remedies is a prerequisite to judicial consideration of plaintiff's claim. Defendants argue that plaintiff has failed to exhaust available administrative remedies and that the Court should defer to an administrative determination. Plaintiff has not alleged that she has sought formal administrative redress of her grievance. For the following reasons, the Court finds that plaintiff is under no obligation to pursue administrative remedies in her Section 504 action.

In 45 C.F.R., Part 84, the Department of Health, Education and Welfare promulgated regulations to effectuate Section 504. Section 84.61 adopted for Section 504 the same compliance procedures used to enforce Title VI of the Civil Rights Act of 1964 §§ 80.6-80.10 (1979). These are the same administrative procedures used to enforce Title IX (prohibiting discrimination on the basis of sex found in 45 C.F.R. § 86.71 (1979)). The regulations in question all provide the enforcement procedure by which the Secretary of HEW may terminate federal funding upon finding a violation of the applicable statute.

In Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), after finding an implied right of action under Title IX, the Supreme Court expressly rejected the contention that individuals must pursue administrative procedures for the termination of federal funding for violators of Title IX as a condition precedent to a private cause of action. The Court observed that cutoff of federal funds to an institution does not afford an appropriate remedy for an individual who has been discriminated against. Id. at 704-06.

Because Title IX and Section 504 were both modeled on Title VI of the Civil Rights Act of 1964, "Cannon's treatment of administrative enforcement as a remedy complementary to and independent of private civil actions is equally applicable to section 504." Medley v. Ginsberg, 492 F.Supp. 1294, 1306 (S.D.W.Va.1980). As the Court in Whitaker v. Board of Higher Education of City of New York, 461 F.Supp. 99, 108 (E.D.N.Y.1978), stated:

"While the administrative process may effectively provide, by way of the threat of a funding termination, an incentive to comply with section 504, it provides no means by which an individual can obtain personal redress for a section 504 violation."

The Third and Fifth Circuit Courts of Appeals have held that Cannon's reasoning applies to Section 504, and that recourse to HEW's administrative enforcement scheme is not a prerequisite to maintenance of a private cause of action see, N.A.A.C.P. v. Medical Center, Inc., 599 F.2d 1247 (3d Cir. 1979); Camenisch v. University of Texas, 616 F.2d 127 (5th Cir. 1980), as have several district courts see, Whitaker v. Board of Higher Education of City of New York, 461 F.Supp. 99 (E.D.N.Y.1978); Cruz v. Collazo, 84 F.R.D. 307 (D.P.R.1979); Sherry v. New York State Education Dept., 479 F.Supp. 1328 (W.D.N.Y.1979); Medley v. Ginsberg, 492 F.Supp. 1294 (S.D.W.Va.1980). Before the promulgation of regulations by HEW, the Seventh Circuit Court of Appeals held that in Section 504 actions exhaustion is not required where no administrative remedy is open to the plaintiffs. Lloyd v. Regional Transportation Authority, 548 F.2d 1277 (7th Cir. 1977). Although regulations have now been promulgated, under the Supreme Court's analysis in Cannon, there is still no appropriate administrative remedy open to private plaintiffs.

Most of those courts which have held that administrative remedies must be exhausted in Section 504 cases were decided before the Supreme Court's decision in Cannon. E.g., Drennon v. Philadelphia General Hospital, 428 F.Supp. 809 (E.D.Pa.1977); Crawford v. University of North Carolina, 440 F.Supp. 1047 (M.D.N.C.1977); Doe v. Colautti, 454 F.Supp. 621 (E.D.Pa.1978), aff'd. 592 F.2d 704 (1979); Sherer v. Waier, 457 F.Supp. 1039 (W.D.Mo.1977). We have been able to find only one case decided after Cannon which holds that a private plaintiff must pursue available administrative remedies before invoking judicial review. Hart v. County of Alameda, 485 F.Supp. 66 (N.D.Cal.1979). The Hart court reached its decision requiring exhaustion with little discussion, and this Court finds more persuasive those cases which conclude that the Cannon reasoning is analogous to Section 504 actions. Therefore, the Court finds that private individual suits to enforce Section 504 rights can be brought without previous resort to administrative remedies.

Finally, defendants assert that plaintiff's complaint is fatally defective in that it does not allege that defendants were using federal funds to employ plaintiff.

The 1978 amendments to the Rehabilitation Act provide that the remedies, procedures and rights set forth in Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq., shall be available to Section 504 litigant...