Longoria v. Harris, Civ. A. No. B-80-81.

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Writing for the Court: VELA
• Citation: 554 F. Supp. 102
• Parties: Jose Angel LONGORIA v. Patricia HARRIS, Alton Bowen, Gabe Gilley, Rev. Ben J. Warrenburg, Pat Windham, Ann Morris, David Q. Day, Wayne Labar, Dan Ives, J. Gordon Nix, and Lewis W. Crumley.
• Docket Number: Civ. A. No. B-80-81.
• Decision Date: 15 December 1982

554 F. Supp. 102

Jose Angel LONGORIA
v.
Patricia HARRIS, Alton Bowen, Gabe Gilley, Rev. Ben J. Warrenburg, Pat Windham, Ann Morris, David Q. Day, Wayne Labar, Dan Ives, J. Gordon Nix, and Lewis W. Crumley.

Civ. A. No. B-80-81.

United States District Court, S.D. Texas, Brownsville Division.

December 15, 1982.

Gerald A. Garcia, Texas Legal Rural Aid, Harlingen, Tex., for plaintiff.

Iris J. Jones, Austin, Tex., Jose A. Berlanga, Asst. U.S. Atty., Houston, Tex., David E. Kithcart, Harlingen, Tex., for defendants.

MEMORANDUM OPINION

VELA, District Judge.

The parties have stipulated to the facts. Plaintiff, Jose Angel Longoria, is a 37 yearold

554 F. Supp. 103

male who had his right leg amputated below the knee cap in 1969 and therefore is a handicapped individual within the meaning of section 706(7)(B) of the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-794 (1976), as amended by Rehabilitation Act Amendments of 1974, Pub.L. No. 93-516, 88 Stat. 1617 (codified in scattered sections of 29 U.S.C. (1976)) Rehabilitation Act Extension of 1976, Pub.L. No. 94-230, 90 Stat. 211 (codified in scattered sections of 29 U.S.C. (1976)). 29 U.S.C. § 706(7)(B) provides in pertinent part

the term "handicapped individual means, ...., any person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such impairment, or (iii) is regarded as having such an impairment.

Defendant Patricia Harris is the Secretary of the United States Department of Health, Education and Welfare (HEW) and is charged with enforcing the Rehabilitation Act of 1973 (hereinafter referred to as the "Act") and with implementing regulations under the Act. Defendant Alton Bowen is the Commissioner of the Texas Education Association (TEA). Defendant Gabe Gilley is the Director of the Department of Transportation of the TEA and is responsible for administering TEA transportation policies. Defendant Dan Ives is the Superintendent of the Harlingen Consolidated Independent School District (HCISD), a public school system established under Texas law. HCISD is a recipient of federal financial assistance and has agreed to comply with section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 and its implementing regulation, 45 C.F.R. §§ 84.41-84.47, as a condition of receiving such financial assistance. 29 U.S.C. § 794 provides in pertinent part:

No otherwise qualified handicapped individual in the United States, as defined in section 706(7) of this title, shall, solely by reason of his handicap, be excluded from participating in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.

The Defendants Ben J. Warrenburg, Pat Windham, Ann Morris, David Q. Day, Wayne Labar, J. Gordon Nix, and Lewis W. Crumley are members of the Board of Trustees of the HCISD.

Plaintiff is a resident of Harlingen, Cameron County, Texas and is a truck driver by vocation. Longoria was employed as a school bus driver by HCISD from 1971 until August 1974 when he left the employ of HCISD due to an improperly fitted prosthesis which was blistering his stump. Plaintiff was rehired by HCISD in 1975 as a janitor and worked in that capacity until March, 1977 at which time he voluntarily left HCISD to accept employment as a tractor-trailer driver for the Transport Company of Texas. Subsequently, in 1977, Longoria reapplied for employment as a school bus driver with HCISD. He was informed by Defendant Crumley that TEA rules concerning bus driver qualifications denied employment to individuals with missing extremities.

The parties have further agreed that no complaints regarding Plaintiff's driving during the period of 1971 through 1974 were filed with HCISD. Mr. Longoria's employment with the Transport Company of Texas was terminated in 1977 because federal regulations prohibit persons with missing limbs from hauling hazardous materials. 49 C.F.R. §§ 391.41-391.94. The parties have further agreed that HCISD was to receive, during the 1981 fiscal year, approximately Two Million Two Hundred and Thirty Thousand Six Hundred and Fifty-Nine Dollars ($2,230,659.00) in federal monies. This sum includes Nine Thousand Four Hundred Dollars ($9,400.00) for school bus transportation expenses within the Title I migrant program calculated on the basis of 90 cents per mile and Two Thousand Dollars ($2,000.00) which was provided to transport children, under the Education for all Handicapped Children Act. 20 U.S.C. § 1401 et seq., P.L. 94-142. Finally, the parties stipulated that HCISD has hired

554 F. Supp. 104

over twenty school bus drivers since November, 1977 when Mr. Longoria applied for the position of school bus driver

The parties failed to agree whether Plaintiff is an otherwise "qualified individual" within the meaning of 29 U.S.C. § 794. Evidence presented at trial revealed the following: Mr. Crumley stated that Plaintiff Longoria would have been hired by HCISD were it not for TEA regulations; that Plaintiff was granted a Chauffeur's license by the Texas Department of Public Safety with the restrictions of automatic transmission or artificial leg; and that uncontroverted medical evidence from Dr. Herman Keillor established that Plaintiff could run, hop, climb stairs and was in no way restricted in mobility by his artificial leg. After hearing the above evidence presented at trial, the Court declares Plaintiff Longoria to be an otherwise qualified individual for purposes of the Rehabilitation Act of 1973.

Plaintiff contends that he was denied employment with HCISD because of his handicap, without regard to his ability to perform, in violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, 42 U.S.C. § 1983 and the Due Process and Equal Protection Clauses of the United States Constitution. Jurisdiction is asserted pursuant to 28 U.S.C. § 1331; 28 U.S.C. §§ 1343(3) and 1343(4); 42 U.S.C. § 1983 and the Fifth and Fourteenth Amendments to the United States Constitution. The Plaintiff seeks injunctive and declaratory relief and damages in this action.

I.

The state and local Defendants contend at the outset that § 504 of the "Act" does not provide a private cause of action to individuals like Mr. Longoria. Federal appellate courts which have considered this contention in other circuits have ruled that an implied cause of action exists to private persons to enforce rights created under 29 U.S.C. § 794. See, NAACP v. The Medical Center, Inc., 599 F.2d 1247 (3rd 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); United Handicapped Federation v. Andre, 558 F.2d 413 (8th Cir. 1977); Kampmeir v. Nyquist, 553 F.2d 296 (2d Cir.1977); Lloyd v. Regional Transportation Authority, 548 F.2d 1277 (7th Cir. 1977); Leary v. Crapsey, 566 F.2d 863 (2d Cir.1977).

Likewise, the Fifth Circuit has recognized that a private cause of action exists under section 504 of the Act for injunctive and declaratory relief. Camenisch v. University of Texas, 616 F.2d 127 (5th Cir.1980) vacated on other grounds, 451 U.S. 390, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). In vacating, the Supreme Court did not question the correctness of the Camenisch decision on the issue of whether a private cause of action exists, but remanded the case to the District Court for a judgment on the merits. As a result of the disposition made by the Supreme Court on Camenisch, the District Courts of this circuit have assumed that the private cause of action portion of that opinion remains as the law. See Helms v. McDaniel, 657 F.2d 800 (5th Cir. 1981); Brown v. Sibley, 650 F.2d 760, 767 N. 9 (5th Cir.1981); Rogers v. Frito-Lay, Inc., 611 F.2d 1074 (5th Cir.1980).

In addition, the legislative history of section 504 of the Act provides more than sufficient indication of the...