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PITTSBURGH FEDN. OF TEACHERS, LOCAL 400 v. LANGER

August 31, 1982

PITTSBURGH FEDERATION OF TEACHERS, LOCAL 400, Plaintiff
v.
ELINOR LANGER, et al., Defendants



The opinion of the court was delivered by: MCCUNE

 BARRON P. McCUNE, District Judge.

 This is an action brought under 42 U.S.C. §§ 1983 and 1985, 29 U.S.C. § 794 (the Rehabilitation Act of 1973), and the Equal Protection and Due Process Clauses of the Fourteenth Amendment. We have jurisdiction of these claims by virtue of 28 U.S.C. §§ 1331(a) and 1343(a) (3) and (4). At the heart of this action is the allegedly discriminatory firing of the plaintiff teacher by the defendant school board.

 Plaintiff Ceinwen King-Smith, age 36, and blind from birth, has accumulated impressive credentials. She was hired as a full time teacher by the Board in March of 1980, *fn1" and assigned to teach mathematics at Brashear High School. After completing the spring term satisfactorily, she returned to Brashear for the fall term of 1980. King-Smith received an unsatisfactory rating, which she alleges was improper, and was transferred to Latimer Middle School in January of 1981. On April 9, 1981, King-Smith was suspended and on July 23, 1981, she was laid off. This action, in which King-Smith charges that she was fired solely because of her blindness, was filed on September 14, 1981. We presently consider defendants' motion for partial summary judgment on the claims under the Rehabilitation Act of 1973.

 Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, reads in relevant 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 subjected to discrimination under any program or activity receiving Federal financial assistance. . .

 The Board's position is that a proper cause of action under Section 504 has not been stated because King-Smith is not the intended beneficiary of any Federal financial assistance received by the Board. The Board further argues that the plaintiff has not alleged, and can not prove, as required in a challenge to employment practices, that the Federal financial assistance has the primary objective of providing employment. This requirement is said to arise from a two step application of the statutes. First, it is provided in the 1978 amendments to the Rehabilitation Act of 1973 that:

 
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.

 29 U.S.C. § 794a(a) (2).

 Second, among the "remedies, procedures, and rights" of Title VI is Section 604, which provides:

 
Nothing contained in the 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.

 42 U.S.C. § 2000d-3.

 Defendants' first argument, that the plaintiff, as an employee, is not the intended beneficiary of any Federal financial assistance to the defendant and therefore may not maintain an action under Section 504, has been repudiated, we believe, by the recent Supreme Court decision in North Haven Board of Education v. Bell, 456 U.S. 512, 102 S. Ct. 1912, 72 L. Ed. 2d 299, 50 U.S.L.W. 4501 (1982). North Haven dealt with Title IX of the Education Amendments of 1972, and whether HEW could lawfully issue regulations covering employment practices thereunder. It thus has no stare decisis effect on the case at bar. It is quite instructive, however, because as has often been noted, both Title IX and Section 504 were patterned after Title VI of the Civil Rights Act of 1964. Indeed, except for the description of the class of persons to be protected, the language of the statutes is virtually identical. Compare 42 U.S.C. § 2000d with 20 U.S.C. § 1681 and 29 U.S.C. § 794.


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