Zorick v. Tynes
| Decision Date | 08 June 1979 |
| Docket Number | No. II-4,II-4 |
| Citation | 372 So.2d 133 |
| Parties | 29 Fair Empl.Prac.Cas. (BNA) 842, 21 Empl. Prac. Dec. P 30,341 Michael P. ZORICK, Appellant, v. Jesse P. TYNES, Jr., Superintendent of Schools, Clay County, Florida, and Clay County School Board, a Public Corporation, Appellees. |
| Court | Florida District Court of Appeals |
William J. Sheppard, Jacksonville, for appellant.
Frank M. Scruby of Scruby, Yonge & Cobb, Orange Park, for appellees.
The presumed incapacity of the blind is a profoundly disabling heritage, preventing demonstration of ability in fact. To dissolve that presumption in the public sector, the Florida legislature forbids public employers to refuse an applicant employment because of his blindness alone, "unless it is shown" that blindness prevents satisfactory performance of the work. Section 413.08(3), Florida Statutes (1977). 1 Federal legislation to the same end is more cautious in terms and effect, offering administrative and judicial remedies for systemic discrimination against qualified handicapped job applicants in federally-funded state employment programs, but deferring to local employment decisions that are not shown to be irrational. Section 504 of the Rehabilitation Act of 1973, Title 29 U.S.C., Section 794. 2 Invoking both the Florida and federal laws, Zorick demanded circuit court remedies, injunctive and monetary, because Clay County tendered him, then for his blindness denied him, employment as a physical education instructor at Middleburg Elementary School. The court found the federal law inapplicable but held that, in the circumstances of this case, Florida statute 413.08(3) requires Clay County so to employ Zorick,
that he might have the opportunity to demonstrate whether or not he can satisfactorily perform the work of a physical education teacher at Middleburg Elementary School.
Zorick, blind since birth but skilled through education and experience in music and physical education, applied by mail for a teaching position in the Clay County school system. The system personnel coordinator offered Zorick a teaching position in physical education at the Middleburg Elementary School for the 1974-75 school year, and sent Zorick a contract to sign. Zorick accepted. When the principal and personnel coordinator learned that Zorick was blind, they withdrew the offer and withheld recommendation of Zorick's employment to the superintendent of education, who therefore made no recommendation of employment to the district school board. See Section 230.33(7)(d), Florida Statutes (1977). 3 Two years later Zorick brought this action for damages, injunction and attorney's fees.
Testimony at the final hearing showed that the school officials withdrew their offer to Zorick because they considered that an unsighted person, supervising and teaching physical education to a large group of elementary school children on an open playground, would be unable to prevent the children from leaving and would be handicapped in supervising the children's safety at play. The defendants also introduced opinion testimony by sighted persons that a blind teacher could not effectively teach the rudiments of the school's programmed sports, which progress in complexity from drop-the-handkerchief to tag football, baseball and basketball. On the other hand, Zorick presented unsighted witnesses who testified to opinions, based on personal experience, that Zorick and others without sight are able satisfactorily to supervise children and teach them the rudiments of sports in which sighted persons rely heavily on their sight.
Judge Black's final judgment:
1. That the plaintiff, MICHAEL P. ZORICK, was hired by the Clay County School Board in August, 1974, as a physical education teacher at Middleburg Elementary School for the school year commencing September, 1974.
2. That the plaintiff was subsequently found to be blind and that based upon his blindness the plaintiff was informed that the job of physical education teacher at Middleburg Elementary School was no longer available.
3. That at no time was the plaintiff afforded the opportunity to show that he could satisfactorily perform the work involved as a physical education teacher at Middleburg Elementary School.
4. That since August, 1974, the plaintiff has made no effort to get employment of any kind, other than two attempts at the City College, spending his time and efforts training for the United States Olympic Team and supporting himself with Social Security benefits. The plaintiff did not file a complaint until two years later on August 6, 1976.
5. That the Federal Statutes are not applicable in this case in that Section 413.08(3), Florida Statutes, . . . is applicable. Equity and the law of the State of Florida would demand that the plaintiff be given an opportunity to demonstrate whether or not he can satisfactorily perform the work of physical education teacher at the Middleburg Elementary School. The plaintiff was denied that opportunity.
It is therefore
ORDERED that the defendants, JESSE P. TYNES, JR., individually and as Superintendent of Schools, Clay County, Florida, and CLAY COUNTY SCHOOL BOARD, a public corporation, forthwith give to the plaintiff, MICHAEL P. ZORICK, a position as physical education teacher at Middleburg Elementary School in order that he might have the opportunity to demonstrate whether or not he can satisfactorily perform the work of a physical education teacher at Middleburg Elementary School.
Zorick contends on appeal that the evidence shows as a matter of law that the school officials, refusing to fulfill their offer of employment, impermissibly discriminated against him because he is blind. He asserts entitlement to back pay, attorney's fees, and a permanent injunction for his employment. The school officials cross-appeal from the order for trial employment. We affirm the circuit court.
We first consider Zorick's claim that the circuit court erred in declining to recognize his asserted Florida-enforceable rights under federal constitutional and statutory law. In the face of the circuit court's finding that Florida Statute 413.08(3) affords Zorick both a right and a remedy, the implication of Zorick's insistence on asserted federal rights is that they may be greater in substance than that afforded by Section 413.08(3), or at least richer in content given by federal judicial and administrative decisions, and that attorney's fees may flow more readily from federal statutes than from Florida's.
A section 1983 4 action to redress the deprivation of due process and other federal constitutional rights may indeed yield attorney's fees. Title 42 U.S.C., Section 1988. 5 But assuming that Florida courts have power to entertain section 1983 suits, and to grant attending remedies, see Metropolitan Dade County v. Wolf, 274 So.2d 584 (Fla. 3d DCA 1973), cert. den. 414 U.S. 1116, 94 S.Ct. 849, 38 L.Ed.2d 743, the short answer to Zorick's claim of a due process violation is that his blindness did not subject him to an irrebuttable presumption of incompetency as a classroom teacher of sighted students; 6 he was refused a particular physical education job at a particular school because of job-related requirements. Whatever may be Zorick's rights under Florida or federal statutes, the Fourteenth Amendment did not forbid Clay County's conduct. See Smith v. Olin Chemical Corp., 555 F.2d 1283 (5th Cir. 1977); Davis v. Southeastern Community College, 574 F.2d 1158, fn. 6 (4th Cir. 1978); Coleman v. Darden, 595 F.2d 533 (10th Cir., 1979).
Zorick's more plausible federal claim arises under Section 504 of the Rehabilitation Act of 1973, Supra n. 2, which applies to the Clay County school system as a recipient of federal financial assistance. As Zorick rightly perceives, rules of the Department of Health, Education and Welfare purport to add flesh to the statutory bones by requiring, for example, that federal-aid recipients
make reasonable accommodation to the known physical or mental limitations of an otherwise qualified handicapped applicant or employee unless the recipient can demonstrate that the accommodation would impose an undue hardship on the operation of its program. 45 C.F.R., Section 84.12(a).
HEW rules say also that "reasonable accommodation" may include "job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, the provision of readers or interpreters, and other similar actions." 45 C.F.R., Section 84.12(b).
On three alternative grounds we find that the trial court was correct in refusing to recognize Zorick's claim under section 504:
First, section 505(a)(2) of the Rehabilitation Act, added by Congress in 1978, 7 extends to section 504 discriminatees the remedies of Title VI of the Civil Rights Act of 1964, Title 42 U.S.C., Sections 2000d et seq., which provide in part:
Nothing contained in this subchapter shall be construed to authorize action under this subchapter by any department or agency with respect to any employment practice of any employer . . . except where a primary objective of the Federal financial assistance is to provide employment. Title 42 U.S.C., Section 2000d-3.
The court of appeals for the Fourth Circuit has held that the 1978 legislation by implication restricts private suits as well as those "by any department or agency." and "simply confirms a plausible reading of § 504 as originally enacted." Trageser v. Libbie Rehab. Center, Inc., 590 F.2d 87, 89 (4th Cir. 1978). Here, as in Trageser, there is no suggestion that "a primary objective" of the federal financial aid to Clay County "is to provide employment." In the absence of such a showing which we would permit on remand were this our only ground for decision Zorick has no private section 504 claim in any court, state or federal.
Second, with due regard for the Supremacy Clause and the corresponding duty of Florida courts to enforce federal statutes not...
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