Moxley v. Vernot, C-3-82-085.

• Decision Date: 29 November 1982
• Docket Number: No. C-3-82-085.,C-3-82-085.
• Parties: Bruce L. MOXLEY, Plaintiff, v. Edward VERNOT, etc., et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

555 F. Supp. 554

Bruce L. MOXLEY, Plaintiff, v. Edward VERNOT, etc., et al., Defendants.

No. C-3-82-085.

United States District Court, S.D. Ohio, W.D.

November 29, 1982.

Herschel M. Sigall, Columbus, Ohio, for plaintiff.

Louis E. Gerber, Columbus, Ohio, for defendants.

DECISION AND ENTRY DISMISSING PLAINTIFF'S CLAIMS FOR RELIEF UNDER § 503 OF THE REHABILITATION ACT OF 1973 AND UNDER 42 U.S.C. § 1983 FOR ALLEGED VIOLATIONS OF THE REHABILITATION ACT OF 1973; DECISION AND ENTRY DISMISSING PLAINTIFF'S CLAIMS UNDER 42 U.S.C. § 1983 AGAINST DEFENDANT UNIVERSITY OF CALIFORNIA, IRVINE, FOR DISCRIMINATION ON THE BASIS OF RACE; DEFENDANTS' MOTION FOR SUMMARY JUDGMENT GRANTED WITH RESPECT TO PLAINTIFF'S CLAIM UNDER § 504 OF THE REHABILITATION ACT OF 1973; PLAINTIFF'S CLAIM UNDER § 1983 FOR RACIAL DISCRIMINATION AGAINST DEFENDANT VERNOT REMAINS FOR TRIAL

RICE, District Judge.

I. INTRODUCTION

The captioned cause is an action for discrimination brought both under the Rehabilitation Act of 1973, 29 U.S.C. § 793 and § 794, and under 42 U.S.C. § 1983. Defendant University of California, Irvine, is a party to a contract with the United States Government, under which it conducts research in the area of toxic hazards research, at its Toxic Hazards Research Unit at Wright Patterson Air Force Base, in Dayton, Ohio. Plaintiff is employed as a Laboratory Assistant II at the Toxic Hazards Research Unit. He alleges that Defendants University of California, Irvine, and Edward Vernot, acting in his official capacity as Administrator of Laboratories for Defendant University of California, Irvine, discriminated against him because he is handicapped, and because of his race, by refusing to promote him to the position of Laboratory Assistant III.

Plaintiff alleges that he is entitled to relief under the following legal theories:

1. The University of California, Irvine, failed to implement an affirmative action plan designed to employ, and advance in employment, qualified handicapped individuals as required by § 503 of the Rehabilitation Act of 1973, 29 U.S.C. § 793.

2. The University of California, Irvine, violated § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, by discriminating against him solely because he is handicapped.

3. Plaintiff is entitled to relief under 42 U.S.C. § 1983, because Defendants violated §§ 503 and 504 of the Rehabilitation Act of 1973, thereby depriving him of rights secured by the constitution or laws of the United States.

4. Defendants have discriminated against Plaintiff on the basis of race, by refusing to promote him to the position of Laboratory Assistant III, thereby depriving him of the "rights, privileges and immunities secured ... by the Fourteenth Amendment to the Constitution," in violation of § 1983. (Doc. # 1, ¶ 1).

This case is presently before the Court on Defendants' motion for judgment on the pleadings, pursuant to Fed.R.Civ.P. 12(c), or in the alternative, motion for summary judgment, pursuant to Fed.R.Civ.P. 56. Defendants contend that: (1) there is no private right of action under § 503 or § 504 of the Rehabilitation Act of 1973, (2) because no rights are created for Plaintiff by the applicable sections of the Rehabilitation Act of 1973, Plaintiff does not have a valid claim under § 1983 for discrimination on the basis of his handicap, and (3) that Defendant University of California, Irvine, is not a "person" for purposes of liability under § 1983, because of the doctrine of sovereign immunity granted by the Eleventh Amendment. Defendants have not, however, moved the Court to dismiss the racial discrimination claim against Defendant Edward Vernot.

Defendants' motion for judgment on the pleadings under Rule 12(c) is essentially a challenge to the legal basis of the complaint. The Court believes that such a challenge is more appropriately viewed as a motion to dismiss for failure to state a claim upon which relief may be granted, under Fed.R.Civ.P. 12(b)(6). Amersbach v. City of Cleveland, 598 F.2d 1033 (6th Cir. 1979). A motion to dismiss for failure to state a claim upon which relief can be granted may be granted only if it appears beyond doubt that the Plaintiff can prove no set of facts in support of his claim which would entitle him to relief.¹ See, Westlake v. Lucas, 537 F.2d 857 (6th Cir.1976).

Further, where a motion to dismiss is made under Rule 12(b)(6) and "matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56."² Fed. R.Civ.P. 12(b)(6). Summary judgment is to be "rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In this case, the Court has considered materials outside the pleadings, submitted by the parties, only with respect to the question of whether a private right of action exists under § 504 of the Rehabilitation Act of 1973. All other matters outside the pleadings were excluded by the Court.

Based on the above discussion, and for the reasons set forth below, the Court concludes that, with respect to Plaintiff's claims for relief under § 503 of the Rehabilitation Act of 1973, under 42 U.S.C. § 1983 for violations of the Rehabilitation Act of 1973, and under 42 U.S.C. § 1983 for racial discrimination against Defendant University of California, Irvine, Plaintiff has set forth no facts entitling him to relief. Those claims are therefore dismissed, pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief may be granted. With respect to Plaintiff's claim for relief under § 504 of the Rehabilitation Act of 1973 (the sole claim upon which matters outside the pleadings have been discussed), the Court has concluded, after considering the pleadings and affidavits submitted by both parties, that there is no genuine issue as to any material fact and that Defendants are, therefore, entitled to summary judgment as a matter of law.

II. DISCUSSION

A. Plaintiff's claim under § 503 of the Rehabilitation Act of 1973

Plaintiff first seeks relief under § 503 of the Rehabilitation Act of 1973. Section 503(a) and (b) state, in pertinent part:

(a) Any contract in excess of $2,500 entered into by any Federal department or agency for the procurement of personal property and nonpersonal services (including construction) for the United States shall contain a provision requiring that, in employing persons to carry out such contract the party contracting with the United States shall take affirmative action to employ and advance in employment qualified handicapped individuals as defined in section 706(7) of this title.

. . . . .

(b) If any handicapped individual believes any contractor has failed or refuses to comply with the provisions of his contract with the United States, relating to employment of handicapped individuals, such individual may file a complaint with the Department of Labor. The Department shall promptly investigate such complaint and shall take such action thereon as the facts and circumstances warrant, consistent with the terms of such contracts and the laws and regulations applicable thereto.

29 U.S.C. § 793(a), (b).

Because § 503(b) of the Rehabilitation Act of 1973 provides for an administrative remedy for violation of § 503(a), the Sixth Circuit held in Hoopes v. Equifax, 611 F.2d 134 (6th Cir.1979) that a private cause of action does not exist for such a violation. Thus, the Court concludes that Plaintiff may not maintain, and this Court may not consider, a private cause of action brought under § 503 of the Rehabilitation Act of 1973.

B. Plaintiff's claim under § 504 of the Rehabilitation Act of 1973

Plaintiff next seeks relief under § 504 of the Rehabilitation Act of 1973. Section 504 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 the participation 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.

29 U.S.C. § 794.

Section 505, which was added to the Rehabilitation Act in 1978, provides for remedies and attorney fees for violation of the Act. Section 505(a)(2) provides that:

the remedies, procedures, and rights set forth in Title VI of the Civil Rights Act of 1964 42 U.S.C. § 2000d et seq. shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under section 794 504 of this title.

29 U.S.C. § 794a(a)(2).

Section 604 of Title VI authorizes action against an employer only "where a primary objective of the Federal financial assistance is to provide employment." 42 U.S.C. § 2000d-3 (emphasis added).

Defendants contend that, by virtue of the incorporation of § 2000d-3 into § 505 of the Rehabilitation Act of 1973, "a plaintiff will not have standing to maintain a suit under Section 504 of the Rehabilitation Act unless the employer received federal financial assistance and the primary purpose of the assistance is to provide employment." (Doc. # 9, p. 6). For the reasons stated below, the Court agrees.

Although the Sixth Circuit has not yet ruled on this issue, "the great weight of authority holds that claims of employment discrimination under § 504 cannot be maintained unless a primary objective of the federally funded activity or program is to provide employment." Meyerson v. State of Arizona, 507 F.Supp. 859, 863 (D.Ariz. 1981) (citing, Carmi v. Metropolitan St. Louis Sewer District, 620 F.2d 672 (8th Cir. 1980), cert. denied, 449 U.S. 892, 101...