Davis v. United Air Lines, Inc.

• Citation: 662 F.2d 120
• Decision Date: 17 September 1981
• Docket Number: No. 1346,D,1346
• Parties: 26 Fair Empl.Prac.Cas. 1527, 60 A.L.R.Fed. 312, 27 Empl. Prac. Dec. P 32,125, 29 Cont.Cas.Fed. (CCH) 81,898 Thomas DAVIS, Plaintiff-Appellee, v. UNITED AIR LINES, INC., Defendant-Appellant. ocket 81-7093.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 120

662 F.2d 120

26 Fair Empl.Prac.Cas. 1527, 60 A.L.R.Fed. 312,

27 Empl. Prac. Dec. P 32,125,

29 Cont.Cas.Fed. (CCH) 81,898

Thomas DAVIS, Plaintiff-Appellee, v. UNITED AIR LINES, INC., Defendant-Appellant.

No. 1346, Docket 81-7093.

United States Court of Appeals Second Circuit.

Argued May 12, 1981.

Decided Sept. 17, 1981.

Michael A. Katz, New York City, for defendant-appellant.

Norman Spiegel, New York City, for plaintiff-appellee.

Before KAUFMAN, OAKES, and NEWMAN, Circuit Judges.

OAKES, Circuit Judge:

This case involves the issue whether section 503 of the Vocational Rehabilitation Act of 1973, as amended, 29 U.S.C. § 793, ¹ gives an employee a private right of action against an employer contracting with the federal government for alleged discrimination in employment on the basis of physical handicap. The question has been answered contrarily by a number of district courts, ² with differing views among the district judges in the Second Circuit, ³ but the only courts of appeal passing on the question, the Fifth, ⁴ Sixth, ⁵ and Seventh, ⁶ Circuits, have held that there is no such private judicial remedy. We agree with the extended analysis of this question by Judge Alvin Rubin for the panel majority in the Fifth Circuit in Rogers v. Frito-Lay, Inc., 611 F.2d 1074 (5th Cir. 1980), and our examination of the cases decided in the Supreme Court and in our own court since Rogers was handed down reenforces the conclusion in Rogers that no private right of action may be inferred from section 503. Accordingly, we reverse the judgment of the United States District Court for the Eastern District of New York, Jack B. Weinstein, Chief Judge, which found the reasoning of courts upholding a private right of action "persuasive" in light of the factors identified by the Supreme Court in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). We do not reach the question whether Thomas Davis, the appellee, had failed to exhaust his administrative remedies in this case, or the question whether this case was within the primary jurisdiction of the Department of Labor.

The facts as alleged in the complaint may be very briefly stated. Thomas Davis had worked for United Air Lines, Inc. ("United") since 1966 as a ramp serviceman, servicing aircraft and loading and unloading cargo. In 1969 he was diagnosed as having epilepsy and from time to time until mid-September 1974, he experienced seizures that did not interfere with his satisfactory performance of duties as a ramp serviceman. After he experienced a seizure in mid-September 1974, he was placed on restricted duties, and he was ultimately confined to working in the bag room. In June 1977, he was placed on "extended illness status" because of his epilepsy; he was officially discharged on February 15, 1980.

In December 1978 Davis filed a complaint with the Department of Labor as provided by section 503(b), note 1 supra, charging that United had discriminated against him on the basis of his physical handicap. The Department of Labor has not acted on his complaint. In October 1979, he filed a private suit against United in the Eastern District of New York claiming that United had violated his rights under section 503. Judge Weinstein denied United's motion for judgment on the pleadings, and certified his order for appeal in accordance with 28 U.S.C. § 1292(b). It is assumed for purposes of this appeal that Davis is physically "handicapped" within the meaning of the Act, see 29 U.S.C. § 706(6), that United holds government contracts subject to the requirements of section 503, and that Davis was discharged because of his handicap.

The law may be briefly stated as follows. Under section 503(a), any contract in excess of $2,500 entered into by the federal government must "contain a provision requiring that ... (the contractor) shall take affirmative action to employ and advance in employment qualified handicapped individuals...." 29 U.S.C. § 793(a). Section 503(b) provides that if any handicapped individual "believes any contractor has failed or refuse(d) to comply with the provisions of his (federal) contract," that "such individual may file a complaint with the Department of Labor" which shall "promptly investigate" and "take such action ... as the facts and circumstances warrant...."

Because section 503 creates no explicit private judicial remedy against federal contractors charged with employment discrimination against the handicapped, the federal courts have had to determine whether a private right of action may be inferred. The starting points for our analysis must be the four factors set out in Cort v. Ash, whether we view these factors as "a part of our law," California v. Sierra Club, --- U.S. ----, ----, 101 S.Ct. 1775, 1783, 68 L.Ed.2d 101 (U.S.1981) (Stevens, J., concurring), or as "merely guides in the central task of ascertaining legislative intent," id. at ----, 101 S.Ct. at 1783 (Rehnquist, J., concurring in the judgment). See Texas Industries v. Radcliff Materials, Inc., --- U.S. ----, ----, 101 S.Ct. 2061, 2066, 68 L.Ed.2d 500 (U.S.1981). Analysis of the Cort factors is the "preferred approach" for determining whether an implied private right of action exists. See Transamerica Mortgage Advisors v. Lewis, 444 U.S. 11, 26, 100 S.Ct. 242, 250, 62 L.Ed.2d 146 (1979) (White, J., dissenting); Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979).

Under Cort the initial consideration is whether the plaintiff is a member of a class for "whose especial benefit the statute was enacted." Cort v. Ash, 422 U.S. at 78, 80-82, 95 S.Ct. at 2087, 2089. See Touche Ross & Co. v. Redington, 442 U.S. 560, 569-70, 99 S.Ct. 2479, 2484-85, 61 L.Ed.2d 82 (1979). Although section 503 was generally intended to benefit handicapped persons, that alone does not establish that Congress intended to "create a federal right in favor of the plaintiff." Cort v. Ash, 442 U.S. at 78, 95 S.Ct. at 2088. See Rogers v. Frito-Lay, Inc., 611 F.2d at 1079.

The Supreme Court has suggested that a private right of action may be more readily implied when the language of a statute is "right-creating" rather than merely "duty-creating." See Cannon v. University of Chicago, 441 U.S. at 690 n. 13, 99 S.Ct. at 1954. Statutory language has been found right-creating when it focuses explicitly on the benefited class. See, e. g., id. at 682 n. 3, 99 S.Ct. at 2487 ("no person ... shall, on the basis of sex, be excluded ...," 20 U.S.C. § 1681); Allen v. State Board of Elections, 393 U.S. 544, 554-55, 89 S.Ct. 817, 825-26, 22 L.Ed.2d 1 (1969) ("no person shall be denied the right to vote ...," 42 U.S.C. § 1973c).

Section 504 of the Vocational Rehabilitation Act of 1973, 29 U.S.C. § 794, which is not at issue in this case, invokes just such right-creating language: "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." Accordingly, a number of courts have held that section 504 creates a private cause of action for handicapped persons. ⁷

By contrast, section 503 contains only duty-creating language, directing federal departments and agencies to provide in all federal contracts that contractors are obligated to take affirmative steps to employ and advance handicapped persons. Nowhere does section 503 confer an express right upon the handicapped, nor impose a direct duty on federal contractors. See Rogers v. Frito-Lay, Inc., 611 F.2d at 1079-80. As Judge Rubin noted in Rogers, the use of duty-creating rather than right-creating phrases, though "not conclusive," makes "inference of a private cause of action more difficult." Id. at 1080. Indeed, the Supreme Court has stated that language such as that contained in section 503 militates against inferring a private right of action:

There would be far less reason to infer a private remedy in favor of individual persons if Congress, instead of drafting Title IX with an unmistakable focus on the benefited class, had written it simply as a ban on discriminatory conduct by recipients of federal funds or as a prohibition against the disbursement of public funds to educational institutions engaged in discriminatory practices.

Cannon v. University of Chicago, 441 U.S. at 690-93, 99 S.Ct. at 1954-55.

The second inquiry under Cort is whether there is any legislative history evidencing congressional intent to create or deny a private remedy. We read Cort and its progeny, including California v. Sierra Club, supra, and Universities Research Ass'n, Inc. v. Coutu, --- U.S. ----, 101 S.Ct. 1451, 67 L.Ed.2d 662 (1981) (no private right of action under Davis-Bacon Act against private employers) as requiring a very close, even microscopic, examination of the legislative history of the particular statute involved. This reading of the legislative history must be done with an enlightened judicial eye, giving full attention to the underlying congressional purpose, the very heart of statutory analysis, see Cox, Judge Learned Hand and the Interpretation of Statutes, 60 Harv.L.Rev. 370, 374-75 (1947); Wyzanski, Judge Learned Hand's Contributions to Public Law, 60 Harv.L.Rev. 348, 360-62 (1947); WATCH v. Harris, 603 F.2d 310 (2d Cir.), cert. denied, 444 U.S. 995, 100 S.Ct. 530, 62 L.Ed.2d 426 (1979), but also with a healthy skepticism of "casual statements from floor debates," as Justice Jackson warned us so pointedly in Schwegmann Bros. v. Calvert Distillers Co., 341 U.S. 384, 396, 71 S.Ct. 745, 751, 95 L.Ed. 1035 (1951).

Taking such a view of section 503, we find nothing in the history of the original Rehabilitation Act of 1973 that casts any light on whether Congress intended to create a private right of action. Given Congress's initial silence, we may seek some guidance from the 1974 and 1978 amendments to the Act. In giving weight to ...