Carmi v. Metropolitan St. Louis Sewer District

LAY, Chief Judge.

Paul D. Carmi appeals the denial of in-junctive, declaratory and monetary relief for alleged discrimination in employment on the basis of handicap in violation of 29 U.S.C. § 794 (§ 504 of the Rehabilitation Act of 1973), 42 U.S.C. §§ 1983,1985(3), and the equal protection and due process clauses of the fourteenth amendment.

Paul Carmi has a rare, hereditary, physical disability known as Progressive Pero-neal Atrophy or Chareot-Marie-Tooth Disease. This condition results in deterioration of the muscles and nerves of the hands and feet.

On April 1, 1976, Carmi applied for employment with Metropolitan Sewer District (MSD), a municipal corporation and political subdivision of the State of Missouri. Following a series of interviews, he was chosen as the preferred applicant for the job of storekeeper at MSD’s Bissel Treatment Plant.¹ As the last step in the hiring process, he was required to submit to a pre-em-ployment physical, and referred to the Sut-ter Clinic for that purpose.² He was briefly examined by Dr. Vernon Balster, an employee of the Sutter Clinic. Upon observation of the degree of muscle deterioration in Carmi’s hands and feet, Dr. Balster determined that Carmi was not capable of regularly lifting 60 pounds or safely driving a fork lift, and concluded Carmi would be unable to successfully perform the duties of a storekeeper. His recommendation that Carmi not be hired was followed by MSD. Carmi’s employment application was kept on file, and he was subsequently considered for one other position which was awarded to a more experienced man. Since June 1978, Carmi has been employed as a parts clerk with the Gusdorf Corporation.

The district court held that Carmi failed to prove he was an “otherwise qualified” handicapped individual as required by 29 U.S.C. § 794, or that his constitutional rights had been violated, and that he had therefore failed to establish a claim under 42 U.S.C. §§ 1983 and 1985(3).

I. Rehabilitation Act.

The initial question before us is whether Carmi has standing to bring an action under 29 U.S.C. § 794 for discrimination in employment.

29 U.S.C. § 794 provides in 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 . . . (emphasis added).

Section 794a(a)(2), makes available to persons aggrieved under section 794 the rights, remedies and procedures of title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq.³ Section 2000d provides:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

This provision is limited by § 2000d-3 which states:

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, employment agency, or labor organization except where a primary objective of the Federal financial assistance is to provide employment.

It is true section 2000d-3 expressly limits only agency enforcement to situations where a primary objective of the federal financial assistance is to provide employment. Nevertheless, the legislative history of title VI lends strong support to our conclusion that Congress did not intend to extend protection under title VI to any person other than an intended beneficiary of federal financial assistance.⁴ Thus, in suits charging employment discrimination under title VI, one of the purposes of the federal financial assistance must be to provide employment. Since section 794 was modeled after, and intended to be enforced in the same manner as title VI,⁵ the limitations on private judicial enforcement of title VI apply to private suits brought under section 794.⁶ The Fourth Circuit reached the same conclusion in Trageser v. Libbie Rehabilitation Center, Inc., 590 F.2d 87, 89 (4th Cir. 1978), cert. denied, 442 U.S. 947, 99 S.Ct. 2895, 61 L.Ed.2d 318 (1979).

The district court found that the federal financial assistance MSD received during 1976, was in the form of construction and engineering grants for the Lemay Treatment Plant from the Environmental Protection Agency. Since Carmi was not an intended beneficiary of the federal assistance, he lacks standing to bring suit under section 794.⁷

II. Constitutional Claims.

We agree with the district court’s finding that Carmi does not have a liberty or property interest sufficient to invoke the protections of the due process clause.

Property interests encompassed by the due process clause of the fourteenth amendment are not created by the Constitution, but by rules or understandings stemming from an independent source sufficient to support a claim of entitlement to the benefit. See Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972). Carmi relies upon no statutory entitlement to employment with MSD, and, although his expectation of employment was somewhat encouraged by MSD, he does not allege the existence of a binding understanding. His interest in employment, therefore, did not rise to the level of a constitutionally protected property interest. See Board of Regents v. Roth, 408 U.S. at 577, 92 S.Ct. at 2709; Coleman v. Darden, 595 F.2d 533, 538 (10th Cir.), cert. denied, 444 U.S. 927, 100 S.Ct. 267, 62 L.Ed.2d 184 (1979); Thompson v. Link, 386 F.Supp. 897, 899 (E.D.Mo.1974). Carmi does not claim any infringement of a liberty interest such as reputation or free speech, nor impairment of his ability to obtain another job. We conclude that Carmi has no interest necessitating due process protection.⁸

We do not agree with Carmi that MSD’s reliance on Sutter Clinic recommendations is arbitrary and capricious so as to violate his right to equal protection. The classification of prospective employees into those who pass the physical examination and those who do not, is rationally related to MSD’s asserted goal of insuring the employment of individuals who can perform their jobs without endangering themselves or others.⁹

Carmi does not challenge the district court’s finding, supported by the evidence, that all prospective employees are required to submit to a pre-employment physical.¹⁰ The record indicates that job applicants are individually examined by physicians who are experienced in giving such physical examinations and treating occupational injuries and diseases.

Dr. Balster testified his recommendation that Carmi could not perform the responsibilities of storekeeper was based upon his knowledge of the general duties of a storekeeper, including the lifting and moving of very heavy objects, his observation of the degree of muscle deterioration in Carmi’s hands and feet, and his knowledge of the significance of that degree of deterioration. We note that Dr. Balster has had 17 years of experience in the field of industrial medicine. While we express some reservation regarding the thoroughness of Dr. Balster’s examination of Carmi, we cannot say his opinion was rendered arbitrarily. Under these circumstances, MSD’s reliance upon his evaluation was not arbitrary and capricious, and its classification of those who pass the examination and those who do not is not “patently arbitrary.” Frontiero v. Richardson, 411 U.S. 677, 683, 93 S.Ct. 1764, 1768, 36 L.Ed.2d 583 (1973).

Because Carmi has not established a violation of any federal statutory or constitutional right, he has failed to establish a claim under 42 U.S.C. §§ 1983 and 1985(3).

The judgment of the district court is affirmed.

1 . The district court found that a storekeeper must be capable of moving 55 gallon drums weighing approximately 450 pounds by utilizing a drum dolly, operating a fork lift truck, and lifting heavy, bulky objects alone or with the assistance of another, and that the heavier items in the storeroom weigh from 48 to 170 pounds.

2 . The district court found that the pre-employment physical examinations required of all prospective employees as the last step in the hiring process, are performed at Sutter Clinics, Inc., an independent establishment utilized by MSD on a fee-for-service basis.

3 . The rights, remedies and procedures of title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., were made available in section 794a(a)(l) to persons complaining of handicap discrimination in federal employment in violation of 29 U.S.C. § 791, section 501 of the Rehabilitation Act.

4 . During the debates on the Civil Rights Act of 1964, concern was expressed that title VI would permit government intervention into every aspect of the operations of the recipients of federal financial assistance. Representative Celler responded:

This title simply provides that, where Federal money is used to support any program of activity . . . the program must be used for the benefit of both races, without discrimination.

The bill would require that each Federal agency which extends financial assistance of the type covered by title VI must establish nondiscriminatory standards of general application.

. . It would, in short, assure the existing right to equal treatment in the enjoyment of federal funds.

110 Cong.Rec. 1518-19 (emphasis added).

As to each assisted program or activity, title VI will require an identification of those persons whom Congress regarded as participants and beneficiaries, and in respect to whom the principle declared in title VI would apply.

Id. at 1521 (emphasis added).

See 110 Cong.Rec. 1542 (remarks of Rep. Lindsay); 110 Cong.Rec. 1602 (remarks of Rep. Mathias); 110 Cong.Rec. 2480-81 (remarks of Rep. Ryan); 110 Cong.Rec. 6545 (remarks of Sen. Humphrey); 110 Cong.Rec. 7060 (remarks of Sen. Pastore); 110 Cong.Rec. 13380 (letter from Deputy Atty. Gen. Nicholas DeB. Katzen-bach to Rep. Celler).

The language of section 2000d-3 was added to the bill to make it clear that discrimination in employment which does not affect intended beneficiaries of federal assistance is not within the reach of title VI. See United States v. Jefferson County Bd. of Educ., 372 F.2d 836, 882-83 (5th Cir. 1966), cert. denied, 389 U.S. 840, 88 S.Ct. 67, 19 L.Ed.2d 103 (1967).

5 . See [1974] U.S.Code Cong. & Admin.News pp. 6373, 6390-91.

6 . Section 794 was also modeled after section 901 of title IX, 20 U.S.C. § 1681. Id. Our interpretation here is consistent with recent decisions in which the language of section 901(a) of title IX, which is virtually identical to that of section 794, has been construed as covering only direct beneficiaries of federal funds. These cases have rejected HEW attempts to enforce regulations under title IX, which extend to the employment practices of recipients of federal assistance. See Junior College Dist. v. Califano, 597 F.2d 119 (8th Cir.), cert. denied, 444 U.S. 972, 100 S.Ct. 467, 62 L.Ed.2d 388 (1979); Islesboro School Comm. v. Califano, 593 F.2d 424 (1st Cir.), cert. denied, 444 U.S. 972, 100 S.Ct. 467, 62 L.Ed.2d 388 (1979); Romeo Community Schools v. HEW, 600 F.2d 581 (6th Cir.), cert. denied, 444 U.S. 972, 100 S.Ct. 467, 62 L.Ed.2d 388 (1979).

7 . We also reject Carmi’s contention that although MSD’s funding was from EPA, HEW regulations on reasonable accommodation and pre-employment inquiries, 45 C.F.R. §§ 85.-53, .55 (1979), are directly applicable to MSD. These sections, adopted in 1978, merely establish standards to be followed by each federal agency and department in promulgating its own regulation implementing section 794. See 45 C.F.R. § 85.4 (1979); Exec. Order No. 11914, 45 C.F.R. 400 (1979); see also 45 C.F.R. § 84.2 (1979). Moreover, they do not have retroactive applicability. See 43 Fed.Reg. 2132, 2133 (1978).

8 . We note that Carmi’s inability to demonstrate a property right sufficient to invoke procedural due process or the infringement of some other federally protected right, is fatal to any substantive due process claim. See Buhr v. Buffalo Public School Dist. No. 38, 509 F.2d 1196, 1202-03 (8th Cir. 1974).

9 . Since the classification does not operate to disadvantage a suspect class or interfere with a fundamental right, the proper analysis is rationality rather than strict scrutiny. See Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976); Antonio v. Kirkpatrick, 579 F.2d 1147, 1148-49 (8th Cir. 1978).

10 . Carmi does not contend MSD has a pattern or general practice of excluding handicapped persons from employment.