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SABOL v. BOARD OF EDUC. OF WILLINGBORO

March 27, 1981

John SABOL, an individual, Plaintiff,
v.
The BOARD OF EDUCATION OF the TOWNSHIP OF WILLINGBORO, COUNTY OF BURLINGTON, a body corporate and politic of the State of New Jersey; Jerrold Foltz, Margaret Reynolds, Alphonse A. Brancaccio, Patricia Harper, Ronald Jackson, Carole Levine, Alice Martello, Maucie Miller, Delbert S. Payne, individually and as members of the Board of Education of the Township of Willingboro; Elmer F. Corda, individually and as Secretary and School Business Administrator of the Board of Education of the Township of Willingboro, and Peter J. Romanoli, individually and as Superintendent of Schools of the Township of Willingboro, Defendants



The opinion of the court was delivered by: DEBEVOISE

Plaintiff John Sabol brought suit against federally funded Willingboro Board of Education alleging that his discharge from his position as an art teacher solely because of a physical handicap constitutes discrimination in violation of Section 504 of Title V of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Count I); the Due Process and Equal Protection Clauses of the Fourteenth Amendment (Counts II-IV); the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 (Count V); and the New Jersey Constitution (Count VI). Plaintiff further charges that these alleged violations caused him mental distress which required medical treatment (Count VII). This matter is before the Court on defendants' motion to dismiss plaintiff's complaint or, in the alternative, for summary judgment. The Department of Justice appears as amicus curiae and opposes defendant's motion insofar as it challenges plaintiff's Section 504 claim.

I.

 The Facts

 On August 29th, 1979, Sabol wrote to the Superintendent of the defendant School District and indicated his desire to resume his teaching duties at the beginning of the 1979-80 school year (see Exhibit A attached to plaintiff's complaint). However, because the plaintiff temporarily required the use of a wheelchair and crutches, the Superintendent felt that Sabol was not capable of performing his teaching duties and therefore denied his request (see Exhibit B attached to plaintiff's complaint). Subsequently, the Superintendent informed Sabol that he could submit to a physical examination by the defendant's medical examiner in order to determine whether Sabol could return to teaching. The examination was performed in late September and, according to the plaintiff, never involved any diagnostic tests or requests for documentation from the plaintiff's treating physician. The results of this examination are not mentioned in the complaint, but it may fairly be assumed that the results were not favorable to the plaintiff because on October 9th, 1979 the defendant Board of Education voted to terminate Sabol's contract of employment, citing his physical disability as the basis of its decision (see Exhibit C attached to plaintiff's complaint). In its letter of discharge, defendant Board gave plaintiff the sixty (60) days notice required in the contract of employment. On February 26th, 1980 plaintiff filed the instant action in federal court.

 The defendant school district receives significant federal financial assistance under the Elementary and Secondary Education Act (ESEA), 20 U.S.C. § 1801, et seq., the Financial Assistance for Local Educational Agencies of Areas Affected by Federal activities, 20 U.S.C. § 236, et seq., and the Education for All Handicapped Children Act of 1975, 20 U.S.C. § 1401, et seq. During the 1979-80 academic year, the defendant employed thirty (30) full-time persons using the Handicapped funding and twenty-six (26) others using the ESEA funding. In 1980-81, the defendant school district employed again thirty (30) full-time persons with the Handicapped funding and another twenty-one (21) persons with the ESEA funding. (See Defendant's Answers to plaintiff's second set of Interrogatories, Nos. 1-2.)

 II.

 The Rehabilitation Act Claims

 Defendant School District argues that in the context of employment discrimination by federal grantees this Court should follow the reasoning of the Second, Fourth and Eighth Circuits and limit the coverage of § 504 of Title V of the Rehabilitation Act to instances where a primary purpose of the federal financial aid is to provide employment. United States of America v. Cabrini Medical Center, 639 F.2d 908 (2d Cir., Jan. 27, 1981); Trageser v. Libbie Rehab. Center, 590 F.2d 87 (4th Cir. 1978), cert. denied, 442 U.S. 947, 99 S. Ct. 2895, 61 L. Ed. 2d 318 (1979); Carmi v. Metropolitan St. Louis Sewer District, 620 F.2d 672 (8th Cir.), cert. denied, 449 U.S. 892, 101 S. Ct. 249, 66 L. Ed. 2d 117 (1980).

 Plaintiff and amicus curiae attack the holdings in Trageser, Carmi and Cabrini as "simplistic" and submit that the statute's language, purposes and legislative history demonstrate an intent to cover recipients of federal aid regardless of the purpose of the federal financial assistance. If the Court adopts defendant's reading of § 504, plaintiff and amicus curiae argue, in the alternative, that plaintiff should be given the opportunity to prove that employment discrimination against him also constitutes discrimination against handicapped students the undisputed intended beneficiaries of the federal financial assistance.

 All parties agree that as with Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq., *fn2" § 504 of Title V of the Rehabilitation Act requires for a claim to be actionable that the handicapped plaintiff be the intended beneficiary of or a participant in a federally funded program or activity. Simpson v. Reynolds Metals Co. Inc., 629 F.2d 1226 (7th Cir. 1980).

 Plaintiff Sabol argues that he is both a participant in and an intended beneficiary of the federal financial aid received by the defendant district.

 As already noted, the defendant school district receives substantial amounts of federal financial assistance for its educational programs and studies. In particular, the district receives federal financial assistance under the Education for All Handicapped Children Act of 1975, 20 U.S.C. § 1401, et seq. These funds are received to educate handicapped students in special education classes. Additionally, school districts which receive funds under this Act are required to take affirmative action to employ handicapped teachers. 20 U.S.C. § 1405 (1975). Although Sabol's salary was not paid with such federal funds, he did, in fact, teach two hours per week under this federally aided program. (See Affidavit of Dr. Peter J. Romanoli, P 3.) From this fact, plaintiff argues that he is a participant in a federally funded program and that as a handicapped teacher who teaches handicapped students he is also an intended beneficiary of the particular grant statute.

 Defendant district disagrees, and contends that plaintiff's limited involvement with the handicapped students a mere two hours per week was not sufficiently significant to bring Sabol within the intended beneficiary or participant category of the federal grant statute.

 The Court, too, questions the validity of plaintiff's theory. However, defendant also contends that the rights of an intended beneficiary or participant under § 504 are further limited by § 505(a)(2)"s incorporation of Title VI, which permits enforcement only where "a primary objective of the Federal financial assistance is to provide employment". If this provision is applicable, plaintiff Sabol, who charges employment discrimination, could not bring this suit under § 504 even though found to be an intended beneficiary or participant. Thus, it must first be determined whether private actions for employment discrimination brought under § 504 are permissible only where a primary objective of the federal financial aid is to provide employment. Put another way, the issue is whether § 505(a)(2) incorporates § 604 of Title VI.

 
The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 shall be available to any persons aggrieved by any act or failure to act by any recipient of Federal assistance or Federal ...

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