Lussier v. Dugger

Citation904 F.2d 661
Decision Date02 July 1990
Docket NumberNo. 89-3354,89-3354
Parties53 Fair Empl.Prac.Cas. 443, 54 Empl. Prac. Dec. P 40,067, 59 USLW 2030, 17 Fed.R.Serv.3d 41, 1 A.D. Cases 1618 Maurice G. LUSSIER, Plaintiff-Appellant, v. Richard DUGGER, as Secretary of the Department of Corrections of the State of Florida, Louie L. Wainwright, Paul J. Uhrig, G.S. Fortner, and Gilda H. Lambert, as Secretary of the Department of Administration of the State of Florida, Defendants-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

Page 661

904 F.2d 661
53 Fair Empl.Prac.Cas. 443,
54 Empl. Prac. Dec. P 40,067, 59 USLW 2030,
17 Fed.R.Serv.3d 41, 1 A.D. Cases 1618
Maurice G. LUSSIER, Plaintiff-Appellant,
Richard DUGGER, as Secretary of the Department of
Corrections of the State of Florida, Louie L. Wainwright,
Paul J. Uhrig, G.S. Fortner, and Gilda H. Lambert, as
Secretary of the Department of Administration of the State
of Florida, Defendants-Appellees.
No. 89-3354.
United States Court of Appeals,
Eleventh Circuit.
July 2, 1990.

Page 662

Jawdet I. Rubaii, S. Noel Meador, Clearwater, Fla., for plaintiff-appellant.

Lynda Quillen, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, Fla., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before KRAVITCH and JOHNSON, Circuit Judges, and KAUFMAN *, Senior District Judge.

Page 663

FRANK A. KAUFMAN, Senior District Judge:

On July 21, 1986, plaintiff, Maurice G. Lussier, a dentist formerly employed by the Department of Corrections of the State of Florida (the Department), instituted this case alleging that various officials of the State of Florida discriminated against him because of a handicap, in violation of the federal Rehabilitation Act, 29 U.S.C. Sec. 794 (Sec. 794), and also of 42 U.S.C. Sec. 1983 (Sec. 1983). After the district court granted summary judgment for defendants and denied plaintiff's motion for reconsideration, plaintiff appealed. For reasons stated in this opinion, we affirm in part, reverse in part and remand for further proceedings.

Lussier was employed as a dentist with the Department at the latter's Avon Park Correctional Institution (Avon) from April, 1979 to August, 1983. Although not a fully licensed dentist in Florida, Lussier was licensed in Massachusetts and was allowed to render general dentistry services to Avon's inmate population pursuant to a special license issued by the State of Florida.

In February, 1982, Lussier was diagnosed as having a contagious type of hepatitis disease. Because of that illness, he was hospitalized and unable to work from February, 1982 to May, 1982. Upon release from the hospital, Lussier resumed his duties at the correctional institution. By mid-June, 1982, however, he was unable to work full-time due to a recurrence of the hepatitis, and began to work only mornings. In July, 1982, he was re-admitted to the hospital with a diagnosis of chronic active hepatitis.

In October, 1982, Lussier attempted a second time to return to full-time work. However, he was unable to handle a full-time workload and, once more, began to work only mornings. In February, 1983, citing recent research with regard to the transmissible nature of hepatitis between dentists and patients, Lussier stopped practicing dentistry altogether. From May, 1983 to June, 1983, Lussier worked at Avon one day per month and was then placed on compulsory disability leave by that correctional institution.

In late July, 1983, defendant G.S. Fortner, Avon's superintendent, terminated Lussier's employment because of the latter's chronic hepatitis condition. Lussier thereupon filed for worker's compensation and disability retirement benefits. While administrative proceedings concerning those benefits were pending in the summer of 1985, 1 Lussier had seemingly achieved full recovery and sought to return to work at Avon. Lussier notified the Dental Executive Director of the Department, defendant Paul J. Uhrig, of this recovery and requested re-employment. In response, Dr. Uhrig informed Lussier that all of the Department's dental positions were filled at that time and declined to rehire him; however, Dr. Uhrig did forward to Lussier an employment application. Lussier completed and submitted the application but was never offered re-employment by the Department.

The extent to which Lussier, after July, 1983, pursued efforts to obtain further employment with the Department, and the Department's response to such efforts, are in significant factual dispute. Lussier insists that he filed a series of applications for dental and non-dental positions after the summer of 1985, and that numerous positions in those areas have been awarded since that time to other applicants. On the other hand, defendants assert that there have been no positions available during that period for which Lussier was qualified.

In his complaint in this case, Lussier alleges that various Florida officials discriminated against him on the basis of a handicap, i.e., his hepatitis condition, in violation of Sec. 794 of the federal Rehabilitation Act. 2 Lussier also asserts that those officials

Page 664

made no effort reasonably to accommodate his condition by offering to him other suitable employment, also in violation of that Act. In addition, Lussier asserts violations by defendants under 42 U.S.C. Sec. 1983.

Defendants are current and former Florida prison or other officials. Richard Dugger is the current secretary of the Department; Louie L. Wainwright is the former secretary, who held office at the time of Lussier's employment and termination by the Department; G.S. Fortner was Avon's superintendent while Lussier worked there; and Dr. Paul J. Uhrig was the Dental Executive Director of the Department throughout the relevant time period. Gilda H. Lambert was the Secretary of Florida's Department of Administration. 3

The district court disposed of Lussier's claims in two separate orders. First, on November 18, 1987, that court determined that Lussier had a viable cause of action under Sec. 794 for equitable prospective relief, but struck all claims for retroactive monetary relief. Second, on October 18, 1988, after defendants presented contentions that Sec. 794 did not apply to them because the medical division of the Department had not received any federal funds, the district court granted judgment for defendants on all of Lussier's claims. Thereafter, Lussier moved for reconsideration, arguing for the first time that the Civil Rights Restoration Act of 1987 extended the scope of Sec. 794 to defendants. 4 102 Stat. 29, P.L. 100-259 (codified with respect to the Rehabilitation Act at 29 U.S.C. Sec. 794(b)). The district court, on March 28, 1989, denied that motion on the grounds that Lussier had not timely raised the contention that the 1988 legislative change should be retroactively applied. Lussier then instituted this appeal from the district court's orders of October 18, 1988 and March 28, 1989.


The district court concluded that it lacked jurisdiction over Lussier's Sec. 794 claim because the Department's Division of Medicine which employed Lussier was a separate "program or activity" within the Department. Section 794 reaches discrimination against handicapped individuals by "any program or activity receiving federal financial assistance." The district court determined on October 18, 1988 that, because Lussier had presented no evidence that the Division of Medicine, as a discrete entity, received federal funds, the provisions of the Rehabilitation Act did not extend to it. In so doing, the district court concluded that the term "program or activity" in Sec. 794 should be narrowly construed to encompass only those entities within an institution actually receiving federal funds.

That determination fully accords with the holding in Grove City College v. Bell, 465 U.S. 555, 570-74, 104 S.Ct. 1211, 1219-22, 79 L.Ed.2d 516 (1984), and the views expressed in Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 635-36, 104 S.Ct. 1248, 1255-56, 79 L.Ed.2d 568 (1984), and United States v. Alabama, 828 F.2d 1532, 1548 n. 63 (11th Cir.1987), cert. denied, 487 U.S. 1210, 108 S.Ct. 2857, 101 L.Ed.2d 894 (1988). But the continued vitality of Grove City was effectively eliminated by the federal Congress in March, 1988, by the passage of the Civil Rights Restoration Act, a development ignored by both sides in this case until Lussier moved for reconsideration on October 28, 1988, ten days after the district court entered judgment for defendants. Then, on October 28, 1988, Lussier for the first time contended that the Civil Rights Restoration Act of 1987, passed six months earlier in March, 1988, statutorily

Page 665

overruled the Grove City holding. The district court denied said motion to reconsider on the grounds that Lussier could not raise a new legal argument after final judgment had been rendered against him when that argument had been available to him at the time at which Lussier had earlier responded to defendants' motion for summary judgment. Moreover, the district court stated that, under any circumstances, the Civil Rights Restoration Act of 1987 should not be given retroactive application in this case.

In this appeal, Lussier asserts that the 1988 congressional action applies retroactively and that, even if it does not, the district court erred in concluding that the Medical Division constituted a separate "program" under Grove City.

The Civil Rights Restoration Act of 1987 became law on March 22, 1988, with the expressed purpose of restoring "the prior consistent and long-standing executive branch interpretation and broad, institution-wide application" of four civil rights statutes, including the Rehabilitation Act. 29 U.S.C. Sec. 794. 5 The preamble to the 1988 legislation states that it was enacted "to restore the broad scope of coverage and to clarify the application of title IX of the Education Amendments of 1972, section 504 of the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, and title VI of the Civil Rights Act of 1964." P.L. 100-259 (1988). The Senate Report accompanying the legislation announced outright that the purpose of the statute was "to overturn the Supreme Court's 1984 decision in Grove City College v. Bell...." S.Rep. No. 64, 100th Cong., 2d Sess. 2, reprinted in 1988 U.S.Code Cong. & Ad.News 3, 3-4. Lussier notes that this case was pending in the district court when the amendment was...

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