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DAVIS v. BUCHER

May 31, 1978

WOOLWORTH VICTOR DAVIS, JR. et al.
v.
GEORGE BUCHER, et al.


Cahn, J.


The opinion of the court was delivered by: CAHN

CAHN, J.

 Plaintiffs have brought this action on behalf of themselves and others similarly situated to challenge the hiring practices of the City of Philadelphia (hereinafter "City") regarding job applicants with prior histories of drug abuse. The named plaintiffs, Woolworth Davis, Salvatore D'Elia, and Herbert Sims Jr., claim they were denied employment solely on the basis of former drug use, without regard to their qualifications, present rehabilitative status or the nature of the job for which they had applied. Defendants are various City officials entrusted with the authority to develop and implement employment practices.

 Plaintiffs allege that the hiring policy of the City of Philadelphia unlawfully discriminates against former drug abusers in violation of the Equal Protection Clause and the Due Process Clause of the United States Constitution. The plaintiffs also allege violations of the Federal Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Civil Rights Act of 1871, 42 U.S.C. § 1983.

 Plaintiffs have moved for summary judgment and class certification. The City has not opposed the class certification motion but has contested the merits of plaintiffs' legal claims. After careful consideration of the contentions of the parties and an independent review of the appropriateness of class certification, I grant both motions.

 Since this is a summary judgment motion, I base my decision on undisputed facts and view these facts in the light most favorable to the party opposing the motion. The affidavits, depositions, and documentary evidence establish the following facts.

 At various times, plaintiffs filed job applications with the City of Philadelphia. Plaintiff Davis reported for a medical examination on January 27, 1977, at the Municipal Medical Dispensary after having been notified by the City that he had been selected for the next class of firemen. (Davis affidavit, Par. 5-7). During the examination the physician noticed a scar. Davis explained that during a four month period in 1972 he had used nonnarcotic amphetamines injected intravenously, but that he had not engaged in drug use since that time. The doctor agreed that the scar was old. (Davis Affidavit, Par. 3, 8). Nevertheless, plaintiff was told that he could not be employed in any city job because the City would not hire anyone with a past drug history. It is undisputed that but for the scar on plaintiff's forearm and his admission of prior drug use, plaintiff Davis would have been hired as a fireman with the Philadelphia Fire Department. (Davis Affidavit, Par. 10, 11).

 Salvatore D'Elia is a former narcotics addict who has been enrolled in a methadone program. (D'Elia Affidavit, Par. 2). Random urine samples required by federal law showed that he was using no drugs other than methadone. (D'Elia Affidavit, Par. 8). D'Elia applied for a position with the City of Philadelphia under Title II of the Comprehensive Employment and Training Act (CETA), 29 U.S.C. § 841, et seq. (D'Elia Affidavit, Par. 10). He was referred for employment to both the Museum of Art as a security guard and the Philadelphia Civic Center as a laborer. On both occasions he was denied employment because of his history of drug use. (D'Elia Affidavit, Par. 11-12). Next he was referred for a job as a physical property maintenance worker. He was accepted for employment and sent to the dispensary for a medical examination. At this time he was again rejected because of his former drug use. (D'Elia Affidavit, Par. 15). Thus, on three separate occasions he was refused employment solely on the basis of his drug history. *fn1"

 Plaintiff Herbert Sims is a former user of morphine and heroin. He took these drugs near the end of his two year tour of duty with the armed services. (Sims Affidavit, Par. 2). He has been totally drug free since 1975. (Sims Affidavit, Par. 3-4). Sims was accepted for employment by the Department of Streets subject to his passing a medical examination. (Sims Affidavit, Par. 7-8). At the examination, plaintiff was told that pursuant to city personnel policy he was rejected for employment because of his admitted former drug abuse. (Sims Affidavit, Par. 9).

 The facts, as demonstrated by the undisputed affidavits, show that Davis, D'Elia, and Sims are rehabilitated. They were all fully qualified for the positions for which they applied. At oral argument, counsel for the defense stipulated that but for the old scars and admissions of prior drug use the applicants would have been hired by the City of Philadelphia. *fn2"

 DISCUSSION

 I. THE SUMMARY JUDGMENT MOTION

 A. THE CITY'S POLICY REGARDING EMPLOYMENT OF SUBSTANCE ABUSERS

 
The Director may refuse to examine an applicant or may disqualify a candidate at any time prior to appointment either during or after an examination . . . who is addicted to the intemperate use of intoxicating liquors, or the use of harmful drugs, . . .

 and 10.0910:

 
The name of an eligible shall be removed from an eligible list for any of the following reasons: . . . Addiction to the intemperate use of intoxicating liquors or to the use of harmful drugs.

 and in Section XIV of "Procedures & Policies Regarding Medical Examination":

 Generally, emotional instability, immaturity, psychosis, alcoholism, or drug addiction, are disqualifying for all positions.

 The medical examination through which this policy is enforced is the last stage in the process of screening job applicants. The purpose of the medical examination is to determine whether a job applicant is medically qualified for the position for which he has applied. (Lawler Deposition at p.7). Counsel for the City has represented that the medical examiners have the discretion to overlook past drug use as a disqualifying characteristic for city employment. Counsel stipulates, however, that this discretion was not exercised with respect to the plaintiffs and the three nonparty affiants in the instant case and that an absolute bar to employment due to former drug use was imposed. In excluding plaintiffs from employment because of past drug use, the medical dispensary staff did not consider whether such a history of substance abuse medically disqualified a person from performing a particular job. At least with respect to the named plaintiffs and the three nonparty affiants, the effect of the City's policy was that, once it was revealed a prospective employee formerly used drugs, he would not be employed.

 B. DEFENDANT'S POLICY IS VIOLATIVE OF § 504 OF THE REHABILITATION ACT, 1973, 29 U.S.C. § 794

 Plaintiffs claim that former drug addicts fall within the protection of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (hereinafter "Act") and that the Act provides them with a remedy for the discrimination alleged here. Section 504 of the Act provides in pertinent part:

 
No otherwise qualified handicapped individual in the United States, . . . shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance.

 29 U.S.C. § 794. The City contends that Congress did not intend drug addicts to be included within the definition of handicapped for purposes of § 504. However, although there are no cases on point, I am persuaded that the clear words of the statute do encompass drug addiction.

 29 U.S.C. § 706(8)(b) defines a handicapped individual as:

 
Any person . . . who (a) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (b) has a record of such impairment, or (c) is regarded as having such an impairment.

 It is undisputed that drug addiction substantially affects an addict's ability to perform major life activities, defined by Department of Health, Education and Welfare regulations supplementing the Act, 42 Fed. Reg. 22686 et seq. (May 4, 1977) (hereinafter "the Regulations") as "caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." Regulations § 84.2(j)(2)(ii). Furthermore, prior addiction and drug use clearly fall within the definition of having a "record of such impairment," 29 U.S.C. § 706(8) (B), as defined in § 84.2(j)(2)(iii) of the Regulations. *fn3"

 Counsel for the City might reasonably have argued, absent any indication to the contrary, that Congress must have intended to differentiate drug use from other physical and mental handicaps because (1) it is a handicap voluntarily created by the handicapped person; and (2) drug possession and use are generally illegal and Congress could not have wished to compensate users for criminal activity. This argument, however, loses all force in view of the Department of Health, Education and Welfare analysis of the Act accompanying the Regulations. The analysis, at 42 Fed. Reg. 22686 (May 4, 1977) directly addresses and disposes of the issue of whether drug addicts are encompassed by the Act.

 
The Secretary has carefully examined the issue and has obtained a legal opinion from the Attorney General. That opinion concludes that drug addiction and alcoholism are "physical or mental impairments" within the meaning of section 7(6) of the Rehabilitation Act of 1973, as amended, and that drug addicts and alcoholics are therefore handicapped for purposes of section 504 if their impairment substantially limits one of their major life activities. The Secretary therefore believes that he is without authority to exclude these conditions from the definition. There is a medical and legal consensus that alcoholism and drug addiction are diseases although there is disagreement as to whether they are primarily mental or physical. In addition while Congress did not focus specifically on the problems of drug addiction and alcoholism in enacting section 504, the committees that considered the Rehabilitation Act of 1973 were made aware of the Department's long-standing practice of treating addicts and alcoholics as handicapped individuals eligible for rehabilitation services under the Vocational Rehabilitation Act.

 The conclusion that Congress intended to include past drug users within the protections of the Act is reasonable as a matter of public policy as well. Drug addiction is a serious public problem. It is therefore not surprising that Congress would wish to provide assistance for those who have overcome their addiction and give some support and incentive for those who are attempting to overcome it. The HEW regulations including drug addicts as handicapped individuals for purposes of § 504 merely recognize these realities. I therefore conclude that persons with histories of drug use, including present participants in methadone maintenance programs, are "handicapped individuals" within the meaning of the statutory and regulatory language.

 The City treats drug users as if they were handicapped, yet discriminates against them. The Regulations provide that even pre-employment inquiries into handicaps are prohibited for purposes other than to determine "an applicant's ability to perform job-related functions." Regulations § 84.14(a). Although plaintiffs had met the requirements of all selection criteria except the medical examination, they were disqualified at the very final stage of the hiring process solely because of their former drug abuse. Furthermore, plaintiffs submitted uncontested evidence that persons with a history of substance abuse, and in particular ex-heroin addicts, could be employed successfully. (Affidavit of Thomas W. Collins, par. 14; Woody Affidavit, par. 29-34; Dodson Affidavit, par. 11). See also Beazer v. New York City Transit Authority, 399 F. Supp. 1032, 1037, 1048-1049, 1058 (S.D.N.Y. 1975), aff'd 558 F.2d 97 (2d Cir. 1977). Thus, by virtue of the absolute ...


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