Leake v. Long Island Jewish Medical Center, 87 CV 510.

• Decision Date: 13 July 1988
• Docket Number: No. 87 CV 510.,87 CV 510.
• Parties: Robert LEAKE, Plaintiff, v. LONG ISLAND JEWISH MEDICAL CENTER, Defendant.
• Court: U.S. District Court — Eastern District of New York

695 F. Supp. 1414

Robert LEAKE, Plaintiff, v. LONG ISLAND JEWISH MEDICAL CENTER, Defendant.

No. 87 CV 510.

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

July 13, 1988.

Stecher Jaglom & Prutzman, New York City, for plaintiff by L. Donald Prutzman, Jr., Josiah Greenberg.

Summit Rovins & Feldesman, New York City, for defendant by Fredric C. Leffler.

MEMORANDUM AND ORDER

PLATT, Chief Judge.

Defendant moves this Court for summary judgment pursuant to Federal Rule of Civil Procedure 56. Defendant contends that this matter should be dismissed, first, because this plaintiff does not have a valid claim under section 504 of the Rehabilitation Act of 1973, 29 U.S.C.A. § 794 (West Supp.1988), and, second, because plaintiff's claim based on the New York State Human Rights Law, N.Y.Exec.Law § 296.1(a) (McKinney 1982), is barred under the doctrine of election of remedies.

FACTS

Robert Leake, a one-armed person, was hired by Long Island Jewish Medical Center ("the Hospital") in 1974. He worked first as a porter and then as a housekeeper until April 11, 1985. He alleges in his complaint that he told the Hospital several times that he was unable to work on the ground floor of the Hospital where the Hospital laboratories were, because he would be required to wear gloves and was unable to do so because of his handicap. Complaint ¶¶ 4-5, 7. Plaintiff was suspended for three days in January 1985 for alleged misconduct. Following that suspension and a short assignment to the seventh floor, plaintiff was assigned to the ground floor. He refused to return from a medical leave of absence to work on the ground floor. The Hospital terminated his employment on April 11, 1985, for his refusal to return to work.

The Hospital receives federal grants that are destined for specific research and treatment programs. Affidavit of Harold Hogstrom in Support of Motion for Summary Judgment at 1 (Apr. 15, 1988). None of the money from the grants goes into the Housekeeping Department for which plaintiff worked. Id.

On June 6, 1985, plaintiff filed a complaint with the New York State Division of Human Rights alleging discrimination on the basis of race, color and disability. Exhibit A to affidavit of Fredric C. Leffler in Support of Motion for Summary Judgment (Apr. 18, 1988). On July 25, 1986, the Division of Human Rights issued a Determination and Order after Investigation finding No Probable Cause for discrimination. Exhibit B to Leffler Affidavit. The Division of Human Rights concluded that the Hospital's action in suspending plaintiff was precipitated by plaintiff's own actions. Id.

DISCUSSION

I. Rehabilitation Act Claim

Plaintiff first alleges a claim under section 504 of the Rehabilitation Act, 29 U.S.C. A. § 794 (West Supp.1988). Section 504 provides in part:

No otherwise qualified individual with handicaps in the United States, ... shall, solely by reason of his handicap, be excluded from 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.A. § 794. In Grove City College v. Bell, 465 U.S. 555, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984), the Supreme Court interpreted section 901(a) of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a) (1982), prohibiting sex discrimination in "any education program or activity receiving Federal financial assistance" to mean that only the particular program or activity receiving federal grant money had to comply with the Title IX prohibition against sex discrimination. Grove City, 465 U.S. at 573-74, 104 S.Ct. at 1221-22. In Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 104 S.Ct. 1248, 79 L.Ed.2d 568 (1984), the Supreme Court stated that the ban on discrimination against the handicapped in section 504 was also limited "to the specific program that receives federal funds." Id. at 636, 104 S.Ct. at 1255.

On March 22, 1988, Congress enacted the Civil Rights Restoration Act of 1987, Pub.L. No. 100-259, 102 Stat. 28 (1988). The stated purpose of the statute is to "restore the broad scope of coverage and to clarify the application of ... section 504 of the Rehabilitation Act of 1973...." Pub.L. 100-259, 102 Stat. 28. Congress found that the Supreme Court had unduly narrowed the application of section 504 and that it was "necessary to restore the prior consistent and long-standing executive branch interpretation and broad, institution-wide application of those laws as previously administered." Restoration Act § 2 (to be codified at 20 U.S.C. § 1687 note). The Restoration Act amended section 504 of the Rehabilitation Act in part by defining the term "program or activity" as "all the operations of ... an entire corporation, partnership, or other private organization, or an entire sole proprietorship ... which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation...." Restoration Act § 4(b)(3)(A)(ii) (to be codified at 29 U.S.C. § 794(b)(3)(A)(ii)). The Restoration Act overrules Grove City College v. Bell and Consolidated Rail Corp. v. Darrone by prohibiting discrimination against the handicapped on an institution-wide basis, instead of only in connection with the limited program or activity actually receiving federal funds, if any federal funds are received by any program or activity of the institution. The issue before the Court is whether the Restoration Act should be applied retroactively to enable plaintiff, who initiated his suit before its passage, to sue.

A court must apply the law in effect at the time it renders its decision, "unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary." Bradley v. School Board of Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974). The Bradley Court rejected the proposition that a change in the law should be applied to a pending case only when it was the "clear and stated intention of the legislature." Id. at 715, 94 S.Ct. at 2018. The Restoration Act itself does not indicate a Congressional intent for either retroactive or exclusively prospective application.

Contrasting with the presumption of retroactive application found in Bradley is the proposition set forth by the Supreme Court in Bennett v. New Jersey, 470 U.S. 632, 105 S.Ct. 1555, 84 L.Ed.2d 572 (1985), that statutory changes in substantive requirements for federal grants should not be presumed to operate retroactively. Id. at 638, 105 S.Ct. at 1559. The Bradley Court had stated that it would not apply a statute change to a pending action "where it has concluded that to do so would infringe upon or deprive a person of a right that had matured or become unconditional." Bradley, 416 U.S. at 720, 94 S.Ct. at 2020. In Bennett, the Court held that absent a clear indication by Congress to do so, a statute that changed substantive standards governing federal grants would not be applied retroactively. Bennett, 470 U.S. at 641, 105 S.Ct. at 1561.

Since the defendant contends that Bennett is controlling in this case, it merits some discussion. The amendment at issue in Bennett changed the method by which eligibility of schools to receive Title I funds was to be determined. Id. at 636, 640 n. 4, 105 S.Ct. at 1558, 1560 n. 4. The Court concluded that eligibility requirements in place at the time the grants were made would apply to the action. Id. The Court based its decision not to apply retroactively the amendments on the fact that the federal government should lose its preexisting right of recovery under the amended statute and because New Jersey had given assurances that it had complied with statutory and regulatory requirements in place at the time to obtain the grants when in fact it had not. Id. at 639, 105 S.Ct. at 1560. The intervening amendments in Bennett were not enacted, as was the amendment in the present case, to overrule a Supreme Court interpretation of an original statute. Instead, that amendment changed substantive grant requirements in a way that Congress had not originally intended.

As stated above, the Restoration Act itself does not indicate any intent of Congress for retroactive application. However, Congressman Donald Edwards of California, the floor sponsor of the Restoration Act, stated that:

This bill applies to all pending cases. It is of great concern that it has taken this long to pass this legislation. I wish no cases had been lost because of this delay.

134 Cong.Rec. H583 (daily ed. Mar. 2, 1988). Additionally, during the floor debate to override President Reagan's veto of the Restoration Act, Senator Robert Packwood of Oregon stated that "all we have done is change the law back to what we thought it was. We have not expanded it beyond what we thought it was." 134 Cong.Rec. S2735 (daily ed. Mar. 22, 1988). Senator Robert Stafford of Vermont, an original sponsor of section 504 of the Rehabilitation Act, stated that the "institution-wide definition was originally intended by legislators." Id. at S2739. Although statements made during floor debates are not controlling in analyzing legislative history, Weinberger v. Rossi, 456 U.S. 25, 35 n. 15, 102 S.Ct. 1510, 1517 n. 15, 71 L.Ed.2d 715 (1982), Congressional intent may be inferred from the statement of a sponsor on the floor, see Regents of the University of California v. Public Employment Relations Board, ___ U.S. ___, 108 S.Ct. 1404, 1409, 99 L.Ed.2d 664 (1988).

Although the Restoration Act does not include a provision stating that it should be applied retroactively, the use of the terms "restore" and "clarify" indicate that Congress did not intend to change the statute; rather it intended to reject the Supreme Court's interpretation. The Second Circuit has found that such language indicates that Congress intended to "codify a congressional purpose long in place which Congress believes the Supreme Court has misinterpreted." Mrs. W. v. Tirozzi, 832...