Smith v. United States Postal Service, Civ. A. No. 82-60328.

• Decision Date: 16 September 1983
• Docket Number: Civ. A. No. 82-60328.
• Citation: 570 F. Supp. 1415
• Parties: Patrick E. SMITH, Jr., Plaintiff, v. UNITED STATES POSTAL SERVICE, Defendant.
• Court: U.S. District Court — Western District of Michigan

570 F. Supp. 1415

Patrick E. SMITH, Jr., Plaintiff, v. UNITED STATES POSTAL SERVICE, Defendant.

Civ. A. No. 82-60328.

United States District Court, E.D. Michigan, S.D.

September 16, 1983.

Janet M. Tooley, Detroit, Mich., for plaintiff.

Francis L. Zebot, Asst. U.S. Atty., Detroit, Mich., Sherry A. Cagnoli, Kevin B. Rachel, U.S. Postal Service, Washington, D.C., for defendant.

MEMORANDUM OPINION AND ORDER

JOINER, District Judge.

The principle question in this case is whether or not a private civil action for employment discrimination on the basis of handicap can be maintained against the United States Postal Service, a quasi-executive agency, under 29 U.S.C. § 794 (the Rehabilitation Act).

FACTS

The facts in this case are uncontroverted. Plaintiff decided in 1979 that he wanted to be a mailman. To that end, he took the Civil Service Examination, which he passed, and a physical examination, which he also passed. He was then hired as a mail handler. However, before he could begin work, the doctor who had conducted the physical exam informed the Postal Service that plaintiff had filed a worker's compensation claim. The Postal Service thereupon withdrew its offer of employment and plaintiff was never able to assume the job he had sought. These events all transpired prior to December of 1979.

On October 15, 1981, the Michigan State Bureau of Worker's Disability Compensation conducted a hearing concerning plaintiff's worker's compensation claim against his previous employer. During the course of this hearing plaintiff learned for the first time that his offer of employment from the Postal Service had been withdrawn due to his filing of this claim.

In October of 1982, plaintiff brought this action in two counts, alleging a violation of the Rehabilitation Act and a violation of his equal protection and due process rights under the Fifth Amendment of the United States Constitution.

The case is before the court on defendant's motion for dismissal or in the alternative, for summary judgment.

THE REHABILITATION ACT

In 1978, Congress amended § 794 of Title 29, the Rehabilitation Act, to read as follows:

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 assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.

The highlighted portion of this provision was added by the 1978 amendments to the Act. In addition, Congress in 1978 enacted § 794a of the Act, which provides in part:

(a)(1) The remedies, procedures, and rights set forth in section 717 of the Civil Rights Act of 1964, including the application of sections 706(f) through 706(k) shall be available, with respect to any complaint under section 791 of this title, to any employee or applicant for employment aggrieved by the final disposition of such complaint, or by the failure to take final action on such complaint...

(2) The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 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 of this title. (emphasis added)

Section 791 of the Act, identified in § 794a(a)(1), addresses the employment of handicapped persons by the federal government. Subsection (b) is of particular interest to this litigation. It requires each federal executive agency and federal instrumentality, including the Postal Service, to adopt an affirmative action plan for the hiring, placement, and advancement of handicapped individuals. The Civil Service Commission was originally empowered in 1973 to oversee the promulgation and operation of these affirmative action programs. That function was transferred in 1978 to the Equal Employment Opportunity Commission, the agency charged with the administration of Title VII, see section 4 of the 1978 Reorganization Plan No. 1, 43 Fed. Reg. 19,807.

While § 791 does not by express terms proscribe employment discrimination against handicapped individuals by the federal government, regulations adopted pursuant to § 791 do in fact prohibit such discrimination, 29 C.F.R. § 1613.703 (1982).¹ In addition, these regulations direct aggrieved individuals to pursue the administrative remedies available under § 717 of Title VII, 42 U.S.C. § 2000e-16, when they feel that they have been discriminated against by a federal agency on the basis of handicap, 29 C.F.R. § 1613.708. Thus, handicapped persons are afforded the same protection against employment discrimination by the federal government under § 791 of the Rehabilitation Act as are members of the classes protected by § 717 of Title VII, which prohibits discrimination on the basis of race, religion, national origin, and gender.

The regulations adopted pursuant to § 717 set forth extensive administrative procedures for the investigation and resolution of complaints of employment discrimination brought against a federal agency, 29 C.F.R. §§ 1613.213-1613.271. The governing statute also provides complainants with the right to file a civil action in district court within 30 days of the receipt of notice of final action taken by the agency or by the EEOC, or within 180 days after the filing of a complaint if no action is taken, 42 U.S.C. § 2000e-16(c).

It is well settled that exhaustion of the administrative remedies is a condition precedent to the initiation of a civil action in federal court under Title VII, Brown v. G.S.A., 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976); McKenzie v. Calloway, 456 F.Supp. 590, 605-06 (E.D.Mich. 1978), aff'd, 625 F.2d 754 (6th Cir.1980). By implication, an action brought against the federal government for employment discrimination under § 791 and its attendant regulations must also be preceded by resort to administrative remedies. Plaintiff in this case has failed to resort to these procedures, and in any event, his action is now barred by the period of limitations established by § 2000e-16(c).

Plaintiff maintains, however, that this action is brought not under § 791, but under § 794, and therefore the exhaustion requirements and period of limitations do not apply to this case. The question presented then, is whether or not a private action can be maintained against a federal instrumentality under § 794 for employment discrimination on the basis of handicap.

Prior to the adoption of the 1978 amendments to the Rehabilitation Act, the Tenth Circuit had squarely faced this question and answered it in the negative, Coleman v. Darden, 595 F.2d 533, 538-39 (10th Cir. 1979). The court concluded that a federal agency could not be construed as a recipient of federal financial assistance and thus fall subject to the prohibition against discrimination on the basis of handicap.

The 1978 amendments to the Act, however, have extended the prohibition against handicap discrimination to the federal agencies, and to the Postal Service in particular. Furthermore, § 794a provides that the remedies available under Title VI of the 1964 Civil Rights Act are to be made available to persons asserting violations of § 794.

Title VI, unlike Title VII, does not provide for an express private right of action. The courts have consistently read an implied private right of action into Title VI, however, see e.g. Drayden v. Needville Ind. School Dist., 642 F.2d 129 (5th Cir.1981); Yakin v. Univ. of Illinois, 508 F.Supp. 848 (N.D.Ill.1981). Furthermore, every Court of Appeals that had addressed the issue since the adoption of § 794 has concluded that a private right of action can be maintained by a handicapped person who seeks participation in a program operated by a recipient of federal funds, see, e.g. Miener v. State of Missouri, 673 F.2d 969 (8th Cir. 1982). Finally, exhaustion of administrative procedures is not a necessary prerequisite to maintaining a private action under § 794, Kling v. County of Los Angeles, 633 F.2d 876 (9th Cir.1980).

The courts which have found an implied private right of action under § 794 have done so in the context of lawsuits brought against recipients of federal financial assistance, however, and not against federal agencies or other instrumentalities. This fact is not a mere fortuity. Any implied right of action which arose under § 794 prior to the adoption of § 794a must now be interpreted in light of the express remedies created by the latter statute, cf. Miener, supra, 673 F.2d at 274. Section 794a poses two distinct impediments to the maintenance of the current action.

First, that provision states that the remedies available under Title VI are 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 of this title." This language parallels the additions to § 794 enacted by Congress in 1978, with the exception that the Postal Service, which is specifically included in amended § 794, is excluded from § 794a. Although the Postal Service is commanded by § 794 not to discriminate on the basis of handicap, the private remedies of Title VI for such discrimination are not authorized against the Postal Service by § 794a(a). Congress thus has established a discretely tailored set of procedural rules. For claims alleging employment discrimination on the basis of handicap against the Postal Service, the Title VII remedies and procedures should be followed. For claims alleging handicap discrimination on the part of recipients or providers of Federal assistance, Title VI remedies and procedures should be followed. The Postal Service is neither a recipient of federal financial assistance as that term is contemplated by § 794, cf. Coleman v. Darden, supra, nor is it a provider...