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Spence v. Straw

submitted under third circuit lar 34.1(a): March 27, 1995.



Before: Mansmann, Cowen and Lewis, Circuit Judges.

Author: Lewis


LEWIS, Circuit Judge.

In this case we are required to evaluate whether a party suing under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, is required to exhaust administrative remedies provided in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, and whether suit under the Rehabilitation Act -- with prior exhaustion of remedies -- is the exclusive means by which a plaintiff may raise claims against federal agencies relating to handicap discrimination. Concluding that the answer to both of these questions is yes, we will affirm the district court in most respects, while modifying the court's judgment to conform to our analysis.


Because this case comes to us upon grant of a motion to dismiss, we accept all of the plaintiff's well-pleaded facts as true. Bogosian v. Gulf Oil Corp., 561 F.2d 434 (3d Cir. 1977). According to the recitations in the amended complaint, the following facts comprise this dispute.

In early 1992, Kevin Spence applied to the Defense Logistics Agency of the Department of Defense ("DLA") for the position of "Sewing Machine Operator (Single Needle)." He passed the DLA's competency examination with a score of 85. The DLA promptly provided Spence with a Notice of Rating, which confirmed his score and declared him eligible for the sewing machine operator position. On April 23, 1992 Spence passed the physical examination required for hire. After passing another performance examination on June 2, 1992, Spence was notified by the DLA that he had "been tentatively selected for a permanent position of Sewing Machine Operator, W-3."

However, on June 24, 1992 Spence was required to take an eye examination, and he failed. The test showed that his approximate vision in both eyes was 20/50, and the DLA required sewing machine operators to have at least 20/20 vision in one eye and 20/40 in the other. Because he had failed the eye examination, Spence was informed that the DLA had rescinded his selection as a sewing machine operator.

Spence filed a pro se complaint against the DLA in June 1992. The DLA moved to dismiss that complaint, but that motion was denied because the DLA had not served counsel which had been appointed to assist Spence. When a second motion to dismiss was properly filed and served, the pro se complaint was dismissed without prejudice in March 1994 on the ground that it did not with specificity set forth a cause of action under the Rehabilitation Act. The district court noted, however, that new counsel had recently been appointed for Spence, and that it was likely that this counsel would be able to set forth Spence's concerns in a manner providing adequate notice to the DLA of the nature of plaintiff's claims. Thus, Spence's new counsel was allowed 30 days to file an amended complaint.

This was done. In the amended complaint, from which our factual recitation is gleaned, Spence sued Admiral Edward Straw ("Straw"), Director of the DLA, in his official and individual capacities, premising jurisdiction upon 28 U.S.C. § 1331. Having provided the factual allegations described above, Spence contended in his amended complaint that those facts stated two causes of action. Count One alleged that Spence was a handicapped individual as defined under section 504 of the Rehabilitation Act and that he was denied employment as a sewing machine operator solely because of his slight vision handicap. Spence contended that the DLA's vision requirements were not reasonably related to the sewing machine operator position, and that even if they were, Spence could perform the job with a slight and reasonable accommodation on the part of the DLA, which would not unduly burden that agency. By failing to hire Spence because of his handicap, Spence contended, the DLA had violated section 504.

Count Two of the amended complaint alleged that the DLA denied Spence equal protection under the Due Process Clause of the Fifth Amendment by singling him out and unnecessarily differentiating him because of his vision handicap. Furthermore, Spence contended, the DLA's actions were arbitrary and irrational, because Spence had passed the requisite performance test showing that he could perform the job of sewing machine operator.

Straw filed a motion for summary judgment upon and dismissal of the amended complaint on two grounds: (1) Spence failed to exhaust administrative remedies on his claim in Count One under section 504 of the Rehabilitation Act prior to filing suit, and the amended complaint is now time-barred; and (2) Spence's constitutional claim in Count Two should be dismissed because the Rehabilitation Act provides exclusive, preemptive remedies for a plaintiff pursuing handicap discrimination claims. The district court agreed, and in a memorandum and order filed in August 1994, the district court granted Straw's motion to dismiss the amended complaint with prejudice ...

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