Pridemore v. Rural Legal Aid Soc. of W. Cent. Ohio, C-3-84-754.

• Decision Date: 19 November 1985
• Docket Number: No. C-3-84-754.,C-3-84-754.
• Citation: 625 F. Supp. 1180
• Parties: George William PRIDEMORE, Plaintiff, v. RURAL LEGAL AID SOCIETY OF WEST CENTRAL OHIO, Defendant.
• Court: U.S. District Court — Southern District of Ohio

625 F. Supp. 1180

George William PRIDEMORE, Plaintiff, v. RURAL LEGAL AID SOCIETY OF WEST CENTRAL OHIO, Defendant.

No. C-3-84-754.

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

November 19, 1985.

COPYRIGHT MATERIAL OMITTED

George Pridemore, Middletown, Ohio, pro se.

Neil F. Freund, Jane M. Lynch, Dayton, Ohio, for defendant.

DECISION AND ENTRY GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DOC # 20); PLAINTIFF'S MOTION TO RECUSE (DOC. # 19) OVERRULED; PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT UNTIMELY FILED AND NOT RULED UPON (DOC. # 23); OTHER MOTIONS (DOCS. # 15, 16) DEEMED MOOT; JUDGMENT TO DEFENDANT AND AGAINST PLAINTIFF; TERMINATION ENTRY

RICE, District Judge.

This case comes before the Court for resolution of the Motion for Summary Judgment filed on June 21, 1985 by Defendant Rural Legal Aid Society of West Central Ohio (RLAS) (Doc. # 20). Plaintiff, a lawyer licensed to practice law in the State of Ohio, who is representing himself in this action, filed a pleading styled "Plaintiff's Motion for Summary Judgment and Motion Contra Defendant's Motion for Summary Judgment" on August 14, 1985 (Doc. # 23).

To the extent that Plaintiff's August 14th filing sought to contest Defendant's motion, it was filed approximately 29 days late. To the extent that Plaintiff sought to assert a Motion for Summary Judgment, said filing came nearly two months after the June 24, 1985 motions cut-off date in this case. See Preliminary Pretrial Conference Order (Doc. # 6). In the interest of giving fair consideration to Defendant's Motion for Summary Judgment, Plaintiff's August 14th filing has been considered as a memorandum contra Defendant's Motion for Summary Judgment, despite its untimely filing. Defendant's Reply Memorandum has also been considered (Doc. # 24). As Plaintiff did not seek leave of this Court to file an untimely Motion for Summary Judgment, Plaintiff's August 14th memorandum has not been treated as a Motion for Summary Judgment by the Court, and the Court makes no ruling upon any such request for relief by Plaintiff.

I. Plaintiff's Claim of Handicap Discrimination by Defendant on the Basis of Plaintiff's Cerebral Palsy.

(A) Facts

Plaintiff, as mentioned supra, is a lawyer. He contacted Defendant, through a letter and resume, about the possibility of employment in late 1982 or early 1983. (Pridemore Deposition, p. 38). The record reveals that Defendant, faced with an imminent staff attorney vacancy in the summer of 1983, decided to hire an interim staff attorney to serve until funds for the position ran out at the end of the year. Applications were solicited in the August 1, 1983 edition of the Ohio Bar Association Reports. Letters were sent to lawyers, including Plaintiff, who had submitted unsolicited resumes during the preceding year. Defendant's letter to Plaintiff, asking him to interview for the position if he remained interested, contained a correct address, but an inaccurate zip code. Plaintiff was interviewed by Defendant for a position of staff attorney on August 8, 1983, and submitted a seven-page letter to members of Defendant's interview committee regarding his application. (Pridemore deposition, Exh. 4). Plaintiff was not offered the job. Plaintiff alleges in his Complaint that Defendant denied him employment solely on the basis of his condition of cerebral palsy. He charges Defendant with handicap discrimination in violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (West Supp.1976-84).¹

(B) Legal Analysis

In Jasany v. United States Postal Service, 755 F.2d 1244, 1249-50 & n. 5 (6th Cir.1985), the Sixth Circuit quoted with approval the test for claims of handicap discrimination outlined by the Tenth Circuit in Pushkin v. Regents of University of Colorado, 658 F.2d 1372 (10th Cir.1981). In Pushkin, the first two steps of the method of evaluating Title VII claims set forth by the Supreme Court in cases such as McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1972), were adapted to cases of handicap discrimination as follows:

(1) The plaintiff must establish a prima facie case by showing that he was an otherwise qualified handicapped person apart from his handicap, and was rejected under circumstances which give rise to the inference that his rejection was based solely on his handicap;

(2) Once plaintiff establishes his prima facie case, defendants have the burden of going forward and proving that plaintiff was not an otherwise qualified handicapped person, that is one who is able to meet all of the program's requirements in spite of his handicap, or that his rejection from the program was for reasons other than his handicap....

755 F.2d at 1250 n. 5.

As set forth in Jasany, the first prong of Plaintiff's prima facie case of handicap discrimination requires that he be a member of the class of handicapped persons protected by Section 504. The relevant statutory definition is contained in 29 U.S.C. § 706(7)(B), which provides that a "handicapped individual" is one 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 an impairment, or (iii) is regarded as having such an impairment.

The "major life activities" referred to in Section 706(7)(B) are in turn defined in 45 C.F.R. § 84.3(j)(2)(ii) as "functions, such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working."

Plaintiff's cerebral palsy was first diagnosed by a physician in approximately November, 1984. (Pridemore deposition, p. 72). Plaintiff explains, in his August 14th memorandum, the impact of this condition upon his muscular control. (Doc. # 23). Plaintiff's condition causes him to have poor control over his ocular muscles, which he says limits his ability to read and to make sustained eye contact. He also states in his memorandum that he has speech defects due to his cerebral palsy, but his speech can be understood by listeners. After careful scrutiny of the record, the Court concludes that summary judgment must be entered against Plaintiff on the basis that his condition of cerebral palsy does not render him a "handicapped individual" within the meaning of 29 U.S.C. § 706(7)(B).

While the Court in no way seeks to denigrate Plaintiff's condition of cerebral palsy, 29 U.S.C. § 706(7)(B)(i) requires that an impairment substantially limit a major life activity in order for a person to qualify as a "handicapped individual." Jasany, 755 F.2d at 1248. There is no genuine issue of material fact on this record as to the absence of such a substantial limitation upon Plaintiff's major life activities by virtue of his cerebral palsy. Plaintiff explained in his deposition that he had been diagnosed as having a "borderline" case of cerebral palsy. (Pridemore deposition, p. 72). He further explained that, due to the mildness of his condition, his cerebral palsy can be detected only with the use of sophisticated diagnostic medical equipment. (Pridemore deposition, p. 71). To the extent that Plaintiff's cerebral palsy affects his reading and speaking abilities, not only can the level of limitation not be considered substantial, but Plaintiff states in his August 14th memorandum that any such reading or speaking difficulties do not in any way interfere with his ability to practice law. (Doc. # 23). Clearly, then, these two major life activities of Plaintiff cannot be found to be substantially limited by his borderline cerebral palsy. Nor are there any indications in the record as to any other major life activities which can be found to be substantially limited.

Under 29 U.S.C. § 706(7)(B)(ii), a person who has a record of an impairment which substantially limited one or more of his major life activities qualifies as a "handicapped individual." This subsection extends the protection of Section 504 to individuals who have recovered in whole or in part from a handicapping condition and to those individuals who have been classified at one point as handicapped. S.Rep. No. 93-1297, 93rd Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad.News 6373, 6388-89. As Plaintiff's cerebral palsy was not diagnosed until late 1984, at which time he had already completed law school and the events in this case had already occurred, he has no such record of cerebral palsy.

Finally, Plaintiff could qualify as a "handicapped individual" under 29 U.S.C. § 706(7)(B)(iii) if members of Defendant's interview committee could be shown to have regarded Plaintiff as suffering from a condition of cerebral palsy which substantially limited one or more of his major life activities. Such a perception by Defendant would allow Plaintiff to claim the protection of Section 504, even if his condition did not substantially limit his major life activity or activities. S.Rep. No. 93-1297, 93rd Cong., 2d Sess., reprinted in 1974 U.S. Code Cong. & Ad.News 6373, 6388-89. The Court finds Defendant to have carried its burden as to the absence of material factual dispute on this issue. Plaintiff has not created a genuine issue of material fact as to whether Defendant knew that Plaintiff suffered from cerebral palsy and that Defendant erroneously believed that this condition was a substantially limiting impairment within the meaning of 29 U.S.C. § 706(7)(B)(iii).

Plaintiff stated at his deposition that he did not mention his cerebral palsy to the members of Defendant's interview committee who met with him on August 8, 1983. (Pridemore deposition, p. 101-03, 123). Plaintiff also testified that a lay person would not know that Plaintiff suffered from cerebral palsy after observing his outward appearance and demeanor. Id. at 123-24. The only written document which Plaintiff believes could have informed Defendant as to his cerebral palsy was the seven-page letter which Plaintiff provided to members of Defendant's interview committee at the time of his interview. Id. at...