Simon v. St. Louis County, Mo., 80-1667

• Decision Date: 11 August 1981
• Docket Number: No. 80-1667,80-1667
• Citation: 656 F.2d 316
• Parties: 26 Fair Empl.Prac.Cas. 1003, 26 Empl. Prac. Dec. P 32,030, 1 A.D. Cases 268 Gary E. SIMON, Appellant, v. ST. LOUIS COUNTY, MISSOURI, a Political Subdivision of the State of Missouri; Colonel G. H. Kleinknecht, Supt. of the St. Louis County Police Department, an Agency of St. Louis County, Missouri, both individually and in his official capacity, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 316

656 F.2d 316

26 Fair Empl.Prac.Cas. 1003,

26 Empl. Prac. Dec. P 32,030, 1 A.D. Cases 268

Gary E. SIMON, Appellant, v. ST. LOUIS COUNTY, MISSOURI, a Political Subdivision of the State of Missouri; Colonel G. H. Kleinknecht, Supt. of the St. Louis County Police Department, an Agency of St. Louis County, Missouri, both individually and in his official capacity, Appellees.

No. 80-1667.

United States Court of Appeals Eighth Circuit.

Submitted April 16, 1981.

Decided Aug. 11, 1981.

Robert H. Grant, Deputy County Counselor, Clayton, Mo., argued, Thomas W. Wehrle, St. Louis County Counselor, Andrew J. Minardi, Associate County Counselor, Clayton, Mo., for appellees.

Francis L. Ruppert, Clayton, Mo., argued, Kent Hull, UCIR, East Lansing, Mich., for appellant.

Before HEANEY, STEPHENSON and McMILLIAN, Circuit Judges.

STEPHENSON, Circuit Judge.

Plaintiff-appellant Gary Simon brought an action in the district court ¹ alleging that defendants-appellees had illegally discriminated against him because of his physical handicap in refusing to rehire or reinstate him as a commissioned police officer for St. Louis County. Simon appeals from a judgment in favor of appellees on all issues. The district court, 497 F.Supp. 141, held, inter alia, (1) that Simon had no private right of action under section 503 of the Rehabilitation Act of 1973, 29 U.S.C. § 793; (2) that although Simon had standing to bring a private right of action under section 504 of the Act, 29 U.S.C. § 794, he did not establish appellees' liability under that statute; and (3) that appellees had not violated Simon's due process rights to reinstatement. ² We affirm in part, reverse in part, and remand for further consideration.

I. FACTS

Simon was a commissioned police officer in St. Louis County, Missouri. On November 24, 1971, Simon was shot and wounded, and was diagnosed as having a condition of paraplegia. On July 5, 1972, he was terminated as a St. Louis County commissioned police officer for the stated reason that because of his injury, he was unable to fulfill the duties of a St. Louis County police officer. ³

Simon was still diagnosed as a paraplegic at the time of trial, in August of 1978 and September of 1979, although his condition had improved somewhat through surgery and rehabilitative treatment. He required the use of leg braces and crutches to walk and could not support the weight of his body on either leg without the aid of crutches. It was further stipulated, and the district court found:

He cannot run, jump, hop, stoop, turn, pivot or perform similar movements without the aid of a supporting device or the aid of another person. Plaintiff requires the use of braces and crutches to gain ingress and egress from an automobile or other motor vehicle. He cannot drive an automobile without the aid of specially fitted hand controls and automatic transmission.

Simon v. St. Louis County, 497 F.Supp. 141, 144 (E.D.Mo.1980).

In March of 1976, Simon met with defendant Colonel G. H. Kleinknecht, Superintendent of the St. Louis County Police Department, and requested that he be reinstated as a commissioned police officer. Colonel Kleinknecht refused to consider Simon because he considered Simon to be physically unable to assume the job. Simon made a formal application for a job as a commissioned police officer on August 16, 1976. He has not been reinstated.

The police department is run on a daily basis by the superintendent, who serves under a Board of Police Commissioners. The superintendent is responsible to the Board for the supervision, management, and control of the police department and all its personnel.

II. SECTION 503

Simon alleges that appellees violated section 503 of the Rehabilitation Act of 1973, 29 U.S.C. § 793. ⁴ The district court, relying on Rogers v. Frito-Lay, Inc., 611 F.2d 1074 (5th Cir.), cert. denied, --- U.S. ----, 101 S.Ct. 246, 66 L.Ed.2d 115 (1980), held that there was no private right of action available to Simon under section 503.

Section 503 does not expressly provide for a private right of action. In determining whether a private right of action is implicit in a statute not expressly providing so, the standards of Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), and its progeny, e. g., Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), apply. We have examined the factors in Cort v. Ash, supra, in detail and find ourselves in basic agreement with the analysis in Simpson v. Reynolds Metals Co., 629 F.2d 1226, 1237-44 (7th Cir. 1980), and Rogers v. Frito-Lay, Inc., supra, 611 F.2d at 1078-85, both of which held that there was no private right of action pursuant to section 503. ⁵ We therefore affirm the district court's holding that there is no private right of action under section 503.

III. SECTION 504

In Carmi v. Metropolitan St. Louis Sewer District, 620 F.2d 672 (8th Cir. 1980), cert. denied, --- U.S. ----, 101 S.Ct. 249, 66 L.Ed.2d 117 (1981), this court held that an individual plaintiff had a private right of action under section 504 of the Act if a primary objective of the defendant's federal funding was to provide for employment. ⁶

We have examined the record in the instant case and agree with the district court that a primary objective for the federal funds going to the St. Louis County Police Department is to provide for the employment of commissioned police officers. Thus, the district court properly concluded that Simon had standing to bring a suit under section 504.

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 * * *. The head of each such agency shall promulgate such regulations as may be necessary to carry out the amendments to this section * * *.

The district court first addressed the issue of whether Simon was an "otherwise qualified handicapped individual." Relying on Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979), the district court determined that Simon was not an otherwise qualified person.

Davis involved a plaintiff with a serious hearing disability who sought to be trained as a registered nurse. Upon the basis of a medical examination, defendant Southeastern Community College determined that plaintiff's hearing disability made it unsafe for her to practice as a nurse. She could not understand speech without reliance upon lip reading. It was also determined that it would be impossible for plaintiff to participate safely in the normal clinical program without substantial modifications, and that those modifications would in fact keep her from realizing the benefits of the program. She was denied admission into the program and as a result brought suit under section 504. The Supreme Court found that plaintiff could not recover because she had not shown herself to be an otherwise qualified person.

The district court, in the instant case, concluded that Simon could not perform all of the department's physical requirements, and that Davis states that "(a)n otherwise qualified person is one who is able to meet all of a program's requirements in spite of his handicap." Southeastern Community College v. Davis, supra, 442 U.S. at 406, 99 S.Ct. at 2367. The district court therefore held that Simon was not an otherwise qualified applicant. Furthermore, the court found the modifications the police department would have to make would be substantial.

It is our view that the district court's reading of Davis is too rigid. The Supreme Court in Davis referred to those handicapped persons who could satisfy all of the "legitimate physical requirements" of the defendant's program. Id. at 406, 99 S.Ct. at 2367. Part III of the Davis opinion discusses whether the physical qualifications Southeastern demanded of the applicant were necessary for participation in its nursing programs. It concluded that the ability to understand speech without lip reading was necessary during the clinical phase of the program and indispensible for many functions that a registered nurse performs. Id. at 407, 99 S.Ct. at 2367. The Supreme Court noted that the only evidence in the record indicated that nothing less than close, individual attention by a nursing instructor would be sufficient to insure patient safety if respondent took part in the clinical phase of the nursing program. Id. at 409, 99 S.Ct. at 2368.

The proper focus in this case is therefore whether the requirements set forth by defendants (1) the ability to be able to effect a forcible arrest and render emergency aid; and (2) the capacity to be freely transferred to all positions in the police department are necessary and legitimate requirements of the job. The district court implicitly concluded they were, but also found that "plaintiff has shown that he is able to perform many of the tasks of the job of a commissioned police officer with the Department, and, indeed, nearly all of the tasks of some of its very small bureaus without much accommodation at all." Simon v. St. Louis County, supra, 497 F.Supp. at 151.

Our situation is different from that in Davis. There is substantial evidence in the record indicating that the physical requirements of the St. Louis County Police Department were not in fact necessary, ⁷ or were not required of all officers. ⁸ There was further evidence indicating that the ability of an officer to be completely transferable among all positions was sometimes not required in fact. ⁹ Nearly all of the evidence that the requirements (i. e. the physical ability to effect a forceful arrest, render aid, and to be able to perform all functions of all the departments'...