Rivera Flores v. Puerto Rico Telephone Co.

Decision Date05 September 1991
Docket NumberCiv. No. 89-1697 HL.
Citation776 F. Supp. 61
PartiesIris Velia RIVERA FLORES, Plaintiff, v. PUERTO RICO TELEPHONE COMPANY, Defendant.
CourtU.S. District Court — District of Puerto Rico

Guillermo J. Ramos-Luina, Hato Rey, P.R., for plaintiff.

Rogelio Capestany-Morales, San Juan, P.R., for defendant.


LAFFITTE, District Judge.

The question before the Court is whether, pursuant to the Rehabilitation Act of 1973, an employee who alleges discrimination based on her physical disability may seek compensatory damages for mental anguish. Plaintiff Iris Velia Rivera Flores (Rivera), an employee with the Puerto Rico Telephone Company (PRTC), alleges that PRTC discriminated against her because of an ophthalmic condition that causes Rivera impaired eyesight. Jurisdiction is based on §§ 504 and 505(a)(2) of the Rehabilitation Act of 1973, 29 U.S.C. §§ 794, 794a(a)(2) (1985 & Supp.1990). Rivera also cites this Court's pendent jurisdiction over claims arising under Article II, § 8 of the Constitution of the Commonwealth of Puerto Rico; Articles 1802 and 1803 of the Civil Code of Puerto Rico, 31 L.P.R.A. §§ 5141 and 5142; and Public Law No. 44 of July 2, 1985, as amended, 1 L.P.R.A. § 501, et seq. Rivera seeks compensatory and punitive damages, as well as injunctive relief. She has demanded a jury trial.

PRTC moves to dismiss Rivera's claim for monetary damages, pursuant to Federal Rule of Civil Procedure 12(b)(6), on the ground that this type of relief is not contemplated by § 504 of the Rehabilitation Act. PRTC claims that a successful § 504 plaintiff is limited to an equitable remedy including injunctive relief and back pay. Consequently, PRTC moves to strike Rivera's request for a jury trial. Additionally, PRTC asserts that Rivera's local claims predominate with respect to the comprehensiveness of the remedies, and therefore requests that the Court decline to exercise pendent jurisdiction. For the following reasons, the Court grants PRTC's motions.


The Rehabilitation Act is designed to promote and expand employment opportunities for the disabled in both the public and private sectors. To this end, § 504 of the Act prohibits discrimination against disabled individuals in federal programs and by any recipient of federal funds.1 In relevant part, § 504 states that "no otherwise qualified individual with handicaps in the United States ... shall, solely by reason of her or 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...." 29 U.S.C. § 794(a).2 In 1978, Congress added § 505(a)(2) to the Act, 29 U.S.C. § 794a(a)(2), incorporating the "remedies, procedures, and rights" of Title VI of the Civil Rights Act of 1964 for claimants aggrieved under § 504.3 Beyond this reference to Title VI remedies, there is a dearth of Congressional discussion on the scope of available relief under § 504. And unfortunately, Title VI provides little assistance, as the breadth of damages available under that Title remains unsettled.

In Guardians Ass'n v. Civil Service Comm'n of City of New York, 463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983), a badly fragmented Supreme Court affirmed the judgment of the Second Circuit Court of Appeals denying back pay in a Title VI action, absent proof of discriminatory intent.4 In construing Title VI, a different majority of the Court implied only that some form of monetary relief would be available for cases of intentional discrimination.5 Thus, while the Court precluded a cause of action for damages for unintentional discrimination, it left the question open as to whether compensatory damages for intentional discrimination may be sought.

Following on the heels of Guardians, the Supreme Court, in Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 104 S.Ct. 1248, 79 L.Ed.2d 568 (1984), explicitly applied Title VI jurisprudence to § 504 of the Rehabilitation Act, albeit in a limited context for present purposes.6 Relying on Guardians, and noting that intentional discrimination had been alleged, the Court stated that the death of the plaintiff did not moot the case since his estate could at least bring an equitable action for back pay. Id. at 630, 104 S.Ct. at 1252. The Court, however, expressly declined to determine whether money damages, beyond back pay, are available under § 504. Id.

In the wake of these decisions and in the absence of any legislative guidance, courts are fairly evenly divided on whether § 504 of the Rehabilitation Act contemplates damages beyond back pay.7 The issue of remedies under § 504 has surfaced but has not been squarely addressed by the First Circuit. See Hurry v. Jones, 734 F.2d 879, 886 (1st Cir.1984) (finding no need to reach the question); Ciampa v. Massachusetts Rehabilitation Comm'n, 718 F.2d 1 (1st Cir.1983) (assuming without deciding that a private action for damages is implied by § 504); see also Glanz v. Vernick, 750 F.Supp. 39, 42 (D.Mass.1990) (assuming without deciding that damages are available under § 504). The Court thus proceeds to examine the question as a matter of first impression in this Circuit.


PRTC's Fed.R.Civ.P. 12(b)(6) motion for failure to state a claim can be successful only if "it clearly appears, according to the facts alleged, that the plaintiff cannot recover on any viable theory." Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir.1990). In making this determination the Court must indulge all reasonable inferences in favor of the plaintiff. See Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir.1989). Nevertheless, "unsubstantiated conclusions" or "bald assertions" need not be credited." Correa-Martinez, 903 F.2d at 52.

Rivera's argument in favor of the availability of damages is essentially one of statutory construction. She asserts that absent any indication that Congress intended to limit a § 504 plaintiff to equitable relief, the Court should make use of its plenary power and award the full panoply of remedies. This proposition hinges on the principle articulated in Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), where the Supreme Court stated that "where legal rights have been invaded and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done." Id. at 685, 66 S.Ct. at 777. Subsequently, the Supreme Court noted that "the existence of a statutory right implies the existence of all necessary and appropriate remedies." Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 239, 90 S.Ct. 400, 405, 24 L.Ed.2d 386 (1969).

Rivera relies specifically on Nelson v. Thornburgh, 567 F.Supp. 369 (E.D.Pa. 1983). In that case, Judge Pollak, relying on Bell v. Hood, reasoned that the lack of congressional discussion limiting the remedial scope of § 504 implies a "tacit acceptance of the presumption `that a wrong must find a remedy.'" Id. at 383 (quoting Miener v. Missouri, 673 F.2d 969, 978 (8th Cir.1982)). While this view finds support in the case law, see supra n. 8, the Court is not persuaded that Congress intended such a broad remedy to be afforded to § 504 plaintiffs.

Where, as here, a statute is facially silent, resort to the application of Bell v. Hood and the imposition of an implied remedy should not be automatic. Rather, the Bell v. Hood principle must yield to contrary legislative intent. In determining whether a particular remedy is implied in a congressional statute, a task analogized to "counting angels on the head of a pin," Lieberman v. University of Chicago, 660 F.2d 1185, 1193 (Swygert, J., dissenting), the Court must remain consistent with the legislative scheme, its purpose and its objectives. Cannon v. University of Chicago, 441 U.S. 677, 688, n. 9, 99 S.Ct. 1946, 1953, n. 9, 60 L.Ed.2d 560 (1979). The Court must also refrain from independently determining whether, in its view, a damages remedy appropriately serves the common weal. Instead, it must seek out intimations in legislative commentaries, in the statutory purpose, in the overall congressional scheme, and in the interplay with sister statutes in a search for what Congress intended to do.

In approaching this task, the Court also notes the Bell v. Hood presumption's inverse proposition articulated in Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979), that "where a statute expressly provides a particular remedy ... a court must be chary of reading others into it." Id. at 19, 100 S.Ct. at 247.8 The Court is also guided by the maxim expressio unius est exclusio alterius which reflects a basic principle of statutory construction — that a statute providing for a particular remedy precludes, by implication, other remedies. Botany Worsted Mills v. United States, 278 U.S. 282, 289, 49 S.Ct. 129, 132, 73 L.Ed. 379 (1929), cited in National R.R. Passenger Corp. v. National Ass'n of R.R. Passengers, 414 U.S. 453, 458, 94 S.Ct. 690, 693, 38 L.Ed.2d 646 (1974).


We begin our foray into the legislative history by looking for any direct authoritative evidence of the existence of an implied damages remedy for § 504 plaintiffs. The only evidence of this nature appears in a 1979 commentary of the Senate Committee on Labor and Human Resources addressing a proposed amendment to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., adding the handicapped to its protected groups. Speaking about Title V of the Rehabilitation Act, the Committee stated that it "has always been the Committee's intent that any handicapped individual aggrieved by a violation of Title V has the right under existing law to proceed privately in federal court and to enforce the rights and remedies afforded under Title V of the Rehabilitation Act of 1973, as amended, and to receive back pay and attorney's fees if successful." S.Rep. No. 96-316, 96th Cong., 1st Sess....

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