Conlon v. City of Long Beach, CV 83-528 (ERK).

• Citation: 676 F. Supp. 1289
• Decision Date: 23 December 1987
• Docket Number: No. CV 83-528 (ERK).,CV 83-528 (ERK).
• Parties: James P. CONLON and Regina M. Conlon, Plaintiffs, v. The CITY OF LONG BEACH, Edwin L. Eaton, Individually and as City Manager of the City of Long Beach, the City Council of the City of Long Beach, and Harvey Weisenberg, Roy Tepper, Bruce Bergman, Frances Smith, Frances Hodson, Individually and as Members of the City Council of the City of Long Beach, Defendants.
• Court: U.S. District Court — Eastern District of New York

676 F. Supp. 1289

James P. CONLON and Regina M. Conlon, Plaintiffs, v. The CITY OF LONG BEACH, Edwin L. Eaton, Individually and as City Manager of the City of Long Beach, the City Council of the City of Long Beach, and Harvey Weisenberg, Roy Tepper, Bruce Bergman, Frances Smith, Frances Hodson, Individually and as Members of the City Council of the City of Long Beach, Defendants.

No. CV 83-528 (ERK).

United States District Court, E.D. New York.

December 23, 1987.

COPYRIGHT MATERIAL OMITTED

Pascarella Dehler Illmensee & Carra, Garden City, N.Y., for plaintiffs.

Carney & Wilson, New York City, for defendants.

KORMAN, District Judge.

In this action for damages under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1982), and 42 U.S.C. § 1983 (1982), as well as several New York statutes, plaintiffs James and Regina Conlon seek to recover for injuries suffered by Mr. Conlon, a part-time employee of the City of Long Beach, when a stall partition in a City Hall rest room collapsed on him while he was attempting to use the commode. Mr. Conlon, who relies on a wheelchair for mobility, and his wife allege that the defendants' failure to equip the City Hall lavatories so as to facilitate access by the handicapped violated federal and state law and caused the plaintiffs' injuries. The parties have moved and cross-moved for summary judgment. In addition, the defendants have made several arguments that will be treated here as cross-motions, in the alternative, for partial summary judgment. For the reasons detailed below, all motions are denied.

Defendant City of Long Beach hired plaintiff James Conlon in January 1978 to work at City Hall several mornings a week for several hours a day in the newly created position of ombudsman, in which he investigated complaints from the public.¹ At the time he was hired, Mr. Conlon was partly paralyzed from the chest down and dependent on a wheelchair and, as defendants concede, a "handicapped individual," as defined by the Rehabilitation Act, 29 U.S.C. § 706(7)(B) (1982).²

According to the plaintiffs, immediately upon assuming his new position, Mr. Conlon began to complain that the rest rooms in City Hall were inaccessible to the handicapped. Defendants dispute this account, but in any case it is clear that on March 5, 1981, Mr. Conlon sent a memorandum to the members of the City Council and to the City Manager, Edwin L. Eaton — all of whom are defendants in this action — in which he stated that, because the entrances to the toilet stalls were not wide enough for a wheelchair, the City was denying the handicapped the use of the City Hall bathrooms. He further claimed that since the City received federal aid, it was in violation of § 504 of the Rehabilitation Act, which provides 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. § 794. Mr. Conlon requested that the City reconstruct two of the building's rest rooms to make them accessible to the disabled.

Eight months after circulating the memorandum, on November 12, 1981, Mr. Conlon was injured in an accident in the sixth-floor lavatory at City Hall. In maneuvering himself from his wheelchair onto the commode, Mr. Conlon used the metal partitions of the stall to brace himself. As he was doing so, however, one of the partitions fell and pinned Mr. Conlon to the floor. The plaintiffs allege in their complaint that the partition had not been "properly secured to the floor." Complaint at 7. As a result of this incident, Mr. Conlon claims, he has suffered numerous injuries, including increased muscle spasms, sleeping difficulty, leg pains and emotional distress, and has required medical treatment; Mrs. Conlon alleges a loss of her spouse's services and consortium. Since the accident, Mr. Conlon has not returned to work.

On February 10, 1983, plaintiffs filed this complaint against the City of Long Beach, the City Council, the City Manager, and the individual members of the City Council, in both their personal and official capacities. The complaint alleged violations of § 504 of the Rehabilitation Act and 42 U.S.C. § 1983, and of three New York statutes — Executive Law § 296(1) (McKinney 1982), which prohibits employment discrimination against the disabled; Public Buildings Law § 51 (McKinney 1946 & Supp.1987), which mandates that the "reconstruction, rehabilitation, alteration or improvement" of public buildings conform to the rules of the state building construction code regarding facilities for the physically handicapped; and Public Officers Law § 103(b) (McKinney 1952 & Supp.1987), which requires "reasonable efforts" to insure that public meetings are held in facilities accessible to the handicapped.

To buttress the § 504 claim, plaintiffs noted that the City at the time received federal funds in the form of both grants and general revenue sharing. Plaintiffs' Statement Pursuant to Civil Rule 3(g) ("Pl. 3(g)") at 4. Defendants agree, but argue that revenue sharing funds were used only for police and fire salaries and street maintenance. Defendants' Statement Pursuant to Civil Rule 3(g) ("Def. 3(g)") at 3. Plaintiffs assert that the City paid Mr. Conlon from the general revenue fund into which federal revenue sharing money was deposited.

I

Plaintiffs' principal claim arises under § 504, which states 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. § 794. In the usual case where plaintiff alleges he was denied employment, or actually or constructively terminated, a plaintiff must show: (1) that he is a "handicapped person" under the Act; (2) that he is "otherwise qualified" for his position; (3) that he is being excluded from the position solely by reason of his handicap; and (4) that the position exists as part of a program or activity receiving federal financial assistance. Doe v. New York University, 666 F.2d 761, 774, 776 (2d Cir.1981). Although plaintiffs concededly meet the first two elements that must be shown to establish a prima facie case, for present purposes it is necessary to refine somewhat the third element, and discuss in some detail the fourth element, of the test established in Doe.

A

The third element of the prima facie case there outlined asks whether the plaintiff was excluded from the position solely by reason of his handicap. That formulation made sense in the context of Doe, where the plaintiff was seeking readmission to the medical school that had expelled her. Here, where plaintiffs are alleging that the failure to provide rest rooms accessible to the handicapped constituted discrimination in the "terms, conditions, and privileges of employment," the proper inquiry centers on whether, by reason of his handicap, he was "subjected to discrimination." This language is consistent with the wording of the statute itself, from which the remainder of the prima facie case set forth in Doe is doubtless directly drawn. It also better reflects the understanding of the statute expressed in the implementing regulations, which set forth "general prohibitions against discrimination" and "general prohibitions against employment discrimination," including a prohibition against discrimination in "any ... term, condition, or privilege of employment." See 28 C.F.R. §§ 41.51, 41.52 (1986).

The discrimination alleged by the plaintiffs here consists not of overt hostility or an outright double standard, but of a failure to make "reasonable accommodation" to the special needs of the disabled. In Southeastern Community College v. Davis, the Supreme Court first recognized that "a refusal to accommodate the needs of a disabled person," if "unreasonable," might "amount to discrimination against the handicapped." 442 U.S. 397, 413, 99 S.Ct. 2361, 2370, 60 L.Ed.2d 980 (1979). Department of Justice regulations similarly require that "a recipient of federal financial assistance shall make reasonable accommodation to the known physical or mental limitations of an otherwise qualified handicapped applicant or employee unless the recipient can demonstrate that the accommodation would impose an undue hardship on the operation of its program."³ 28 C.F.R. § 41.53 (1986).

Plaintiffs argue that those regulations, in conjunction with § 504, "imposed an absolute duty on the defendants to make at least one facility accessible" to Mr. Conlon. Plaintiffs' Memorandum of Law in Support of Their Motion for Summary Judgment ("Pl. Memo.") at 10-11. While plaintiffs never make explicit what an "absolute duty" entails, they suggest that the defendants have a greater obligation toward a current employee whose disability was known to the employer at the time he was hired than they would toward a mere job applicant. Id. at 7. For this assertion plaintiffs offer no authority. Indeed, the regulations expressly pertain to "applicants or employees" without drawing a distinction between them. See, e.g., 28 U.S.C. §§ 41.52(b), 41.53 (1986). Moreover, the law is clear that the burden on employers is not "absolute" in the sense that where the accommodation sought by the employee is not "reasonable," or where the employer can demonstrate "undue hardship," no accommodation is legally required.

Still, an employer must take some steps to accommodate disabled employees. The question here, as in Dopico v. Goldschmidt, 687 F.2d 644 (2d Cir.1982), is "how much accommodation is called for" by § 504 and its regulations. Id. at 653. In Dopico, the plaintiffs brought a class action to force various governmental agencies to make New York's mass transit system more accessible to the handicapped. Dopico...