Rivera v. Heyman

• Decision Date: 16 September 1998
• Citation: 157 F.3d 101
• Parties: 13 NDLR P 174 Amador RIVERA, Plaintiff-Appellant, v. I. Michael HEYMAN, Secretary, Smithsonian Institution, Luis A. Palau and Edward G. Dolan, Defendants-Appellees. Docket 97-9316.
• Court: U.S. Court of Appeals — Second Circuit

Page 101

157 F.3d 101

13 NDLR P 174

Amador RIVERA, Plaintiff-Appellant, v. I. Michael HEYMAN, Secretary, Smithsonian Institution, Luis A. Palau and Edward G. Dolan, Defendants-Appellees.

Docket 97-9316.

United States Court of Appeals Second Circuit.

Argued May 15, 1998.

Decided Sept. 16, 1998.

Gregory Antollino, New York City, for Plaintiff-Appellant.

Martin J. Siegel, Assistant United States Attorney, New York City (Mary Jo White, United States Attorney for the Southern District of New York, Steven M. Haber, Assistant United States Attorney, on the brief), for Defendants-Appellees.

BEFORE: CARDAMONE, McLAUGHLIN, and JACOBS, Circuit Judges.

JACOBS, Circuit Judge.

Plaintiff-Appellant Amador Rivera, a long-time employee of the Smithsonian Institution, contends that his employer discriminated against him by reason of his disability, in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (1994), retaliated against him for complaining about it, and discriminated on other grounds under other statutes as well. This appeal presents the question (among others) as to whether the Smithsonian is subject to section 501 of the Rehabilitation Act, 29 U.S.C. § 791 (1994). The United States District Court for the Southern District of New York (Leisure, J.) dismissed the complaint pursuant to Federal Rule of Civil Procedure 12(c) after concluding, inter alia, that section 501 of the Rehabilitation Act provides the sole remedy for federal employees alleging employment discrimination based on a disability, and that section 501 is inapplicable to the Smithsonian Institution because the Smithsonian is not "in the executive branch." See Rivera v. Heyman, 982 F.Supp. 932, 936-39 (S.D.N.Y.1997). Because of a change in the law during the pendency of this appeal, it is necessary to reverse part of the district court's judgment.

Rivera was hired by the Smithsonian in 1979, and by 1986 had risen to become Assistant Chief of Security in the New York branch of the Smithsonian's Office of Protection Services. According to the allegations of the Second Amended Complaint (which for these purposes are taken as true), Rivera encountered no dissatisfaction with his work until 1991, when Rivera advised his then-supervisor that he was infected with HIV. The complaint alleges that thereafter (and by reason, variously, of discrimination or retaliation) Rivera's supervisors and others at the Smithsonian made difficulties about allowing Rivera medical leave; unreasonably refused to adjust Rivera's work schedule to accommodate his clinic visits; paid heightened critical attention to Rivera's paperwork; refused to provide Rivera with evaluations of his work; made derogatory remarks about Rivera's medical condition and groups of persons assumed to be infected with HIV; ridiculed the multicultural apparel Rivera liked to wear; denied Rivera's requested transfer to another Smithsonian location in New York, and then transferred him to a facility at a location inconvenient for Rivera's commute; denied Rivera the opportunity to attend a training event; and disclosed Rivera's medical condition, without his consent, to one or more fellow employees and to one or more of Rivera's supervisors.

The Second Amended Complaint asserts ten causes of action, and requests injunctive relief, punitive damages, and compensatory damages of $800,000. Rivera claims that the Smithsonian (A) violated the Rehabilitation Act by (i) failing to accommodate his disability, (ii) discriminating against him on the basis of his disability, (iii) subjecting him to a hostile work environment because of his disability, and (iv) retaliating against him for making discrimination complaints in December 1993 and April 1994; and (B) violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1994), by retaliating against him for making a Title VII discrimination complaint in April 1994. As to the other defendants, Rivera alleges that two of his supervisors (Luis Palau and Edward Dolan) discriminated against him on the basis of his disability, and retaliated against him for making discrimination complaints, in violation of the Human Rights Laws of the City of New York, see N.Y. City Admin.Code § 8-107 and the State of New York, see N.Y.Exec.Law § 296 (McKinney 1993); and asserts a claim under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. (1994), against Palau, Dolan, and the Smithsonian on the ground that Palau and Dolan revealed Rivera's HIV status to third parties without his consent, acts alleged to constitute an invasion of privacy in violation of § 2784 of the Public Health Law of the State of New York, N.Y.Pub. Health Law § 2784 (McKinney 1993).

Defendants moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). The district court granted the motion, see Rivera v. Heyman, 982 F.Supp. at 942, and Rivera now appeals.

Discussion

We review de novo the district court's grant of judgment on the pleadings. Sheppard v. Beerman, 94 F.3d 823, 827 (2d Cir.1996). We therefore accept all allegations in the complaint as true, draw all inferences in favor of the plaintiff, and will affirm 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." Id. (citation omitted).

A. Section 501 of the Rehabilitation Act.

Rivera's Rehabilitation Act claims are premised upon his HIV-positive status. The district court found that HIV infection is an impairment that "substantially limits ... major life activities," and that Rivera is therefore "disabled" within the meaning of the Rehabilitation Act, 29 U.S.C. § 706(8)(B). See Rivera, 982 F.Supp. at 936. The Supreme Court recently confirmed that HIV infection is a disability under the Americans With Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq. (1994), which defines "disability" in virtually the same terms as the Rehabilitation Act. See Bragdon v. Abbott, 524 U.S. 624, ----, 118 S.Ct. 2196, 2206-07, 141 L.Ed.2d 540 (1998).

As a federal employee, Rivera has no remedy for employment discrimination under the ADA. See 42 U.S.C. § 12111(5)(B). His sole claim for discrimination on the basis of disability is under the Rehabilitation Act, if anywhere. Section 501 of the Rehabilitation Act establishes a program within the federal government to encourage the employment of individuals with disabilities, and applies to "[e]ach department, agency, and instrumentality (including the United States Postal Service and the Postal Rate Commission) in the executive branch." 29 U.S.C. § 791(b) (1994) (emphasis added). There was no private right to enforce section 501 until Congress supplied a private remedy in 1978 by amending the statute to provide that the remedies set forth in section 717 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, were available "with respect to any complaint under [section 501] of this title." 29 U.S.C. § 794a(a)(1) (1994).

The district court dismissed all of Rivera's section 501 claims on the ground that the Smithsonian is not subject to the Rehabilitation Act, because it is not "in the executive branch." See Rivera, 982 F.Supp. at 938-39. In reaching this conclusion, the court considered the structure of the Smithsonian, and noted that the Board of Regents of the Smithsonian includes ex officio representatives of the three branches of government, as well as nine other persons selected by Congress. Id. at 938. The court concluded that "the Executive does not have the control over the Smithsonian necessary to classify the Institution as 'in the executive branch.' " Id. at 939. On this appeal, Rivera made a number of arguments as to why the Smithsonian is "in the executive branch" for the purposes of the Rehabilitation Act.

This dispute, however, became moot during the pendency of this appeal. On August 7, 1998 the President signed into law the Workforce Investment Act of 1998, Pub.L. No. 105-220, 112 Stat. 936 (1998). Section 341 of this statute amended section 501 of the Rehabilitation Act to cover the Smithsonian Institution. By its terms, the statute applies the amendment to all cases pending on the date of its enactment. It therefore provides the rule of decision for this case. See Plaut v. Spendthrift Farm, 514 U.S. 211, 226-27, 115 S.Ct. 1447, 1457, 131 L.Ed.2d 328 (1995) ("When a new law makes clear that it is retroactive, an appellate court must apply that law in reviewing judgments still on appeal that were rendered before the law was enacted, and must alter the outcome accordingly.")

We therefore vacate the dismissal of Rivera's section 501 claims.

B. Section 504 of the Rehabilitation Act.

Rivera also asserts that he can proceed under section 504 of the Rehabilitation Act. Section 504 provides that "[n]o otherwise qualified individual with a disability ... shall, solely by reason of his or her disability ... be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency." 29 U.S.C. § 794(a) (1994). Unlike section 501, however, section 504 is enforceable through Title VI of the Civil Rights Act of 1964, which provides (inter alia ) for the termination of federal financial assistance to recipients who discriminate in violation of section 504. See 42 U.S.C. § 2000d-1 (1994).

The circuits are split on whether or not a disabled federal employee can assert a claim under section 504. The Fifth, Sixth, and Eighth Circuits have concluded that section 501 and section 504 of the Rehabilitation Act overlap, and that federal employees can sue under both provisions. See Rivera, 982 F.Supp. at 937 (citing cases). The Seventh, Ninth, and Tenth Circuits have held that section 501 is the exclusive remedy for federal employees suing under the Rehabilitation Act. Id. We have not addressed this issue.

Relying on the "detailed analysis of the interaction" of section 501 and section 504 in ...