The opinion of the court was delivered by: MUNSON
MEMORANDUM-DECISION AND ORDER
This action was brought by plaintiff John Doe
under section 504 of the Rehabilitation Act of 1973, as amended (ACT), 29 U.S.C. § 794 (Supp. III 1979), which prohibits discrimination against handicapped individuals in any program or activity receiving federal financial assistance. Defendant Syracuse School District is a recipient of federal funds and is therefore bound under the provisions of the Act. Defendants Lionel Meno, Robert Cecile, and Robert DiFloria are the District Superintendent, School Board President, and District Personnel Director, respectively. Jurisdiction is predicated upon 28 U.S.C. § 1343(3)(4).
Plaintiff claims that the School District failed to hire him as a teacher's assistant and substitute teacher solely because of his prior mental illness, thereby violating the provisions of the Act. Specifically, plaintiff's second cause of action asserts that the defendant School District made impermissible pre-employment inquiries and refused to hire plaintiff because of his answers to those questions. In response, the defendants argue that plaintiff was not hired because they were overstaffed in plaintiff's area of expertise.
This cause is presently before the Court upon plaintiff's motion for reconsideration. Plaintiff claims that the Court was mistaken in its Memorandum-Decision and Order dated September 30, 1980, when it denied plaintiff's motion for partial summary judgment as to his second cause of action, which alleged violation of the Rehabilitation Act, 29 U.S.C. § 794, and 45 C.F.R. § 84.14. Defendants have cross-moved to dismiss plaintiff's second cause on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure insofar as it alleges that an impermissible pre-employment inquiry violates the Act. Upon careful reconsideration, the Court has determined that there are no material issues of fact in dispute with regard to plaintiff's regulatory claim in his second cause of action and that he is entitled to judgment on this issue as a matter of law.
Therefore, plaintiff's motion for reconsideration, and with it, plaintiff's original motion for partial summary judgment, must be granted in part. The denial of the plaintiff's summary judgment motion regarding his statutory claim remains unchanged at this time, given the existence of disputed, triable issues of material facts.
In January of 1980, plaintiff discussed employment opportunities with a Ms. Spellman, the Social Studies Supervisor of the Syracuse School District. Plaintiff is apparently certified by the State of New York as a social studies teacher. Consequently, after this conversation, plaintiff submitted his application for the position of teacher's assistant and substitute teacher.
During the course of plaintiff's application procedures, he was asked to complete a vital statistics form. The 31st question on that form inquired whether he had experienced, or had ever been treated for any "migraine, neuralgia, nervous breakdown, or psychiatric treatment." Plaintiff responded affirmatively and it was then disclosed that he had suffered a nervous breakdown during his service with the United States Air Force. In addition, plaintiff also disclosed that as a result of this event and based upon a diagnosis of schizophrenic reaction, he was receiving one hundred percent disability benefits from the Veterans Administration. Following these disclosures, plaintiff was examined by Dr. Paul P. Stobnicke, the School District Physician, and Dr. Alden Starr, the School District Psychiatrist. Dr. Stobnicke found plaintiff to be physically and mentally qualified for the teaching position, subject only to a review after six months. Plaintiff's application for employment was then rejected by the School District, and he commenced this lawsuit on February 26, 1980.
REHABILITATION ACT OF 1973
Section 504 of the Rehabilitation Act of 1973 reflects a Congressional determination that programs receiving federal financial assistance are to be operated without discrimination based upon an individual's physical and/or mental handicap. In pertinent part, the statute provides that:
(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....
29 U.S.C. § 794. A handicapped individual is defined as:
any person who (i) has a physical or mental impairment which limits one or more of such person's major life activities; (ii) has a record of such impairment; or (iii) is regarded as having such an impairment.
29 U.S.C. § 706(7)(B).
Section 504 of the Act clearly requires all recipients of federal funds to avoid discrimination against handicapped individuals. Lloyd v. Regional Transp. Auth., 548 F.2d 1277, 1280-86 (7th Cir. 1977); S.Rep.No.1297, 93d Cong., 2d Sess., reprinted in (1974) U.S.Code Cong. & Ad.News 6373, 6390-91. The section also confers a private right of action upon aggrieved handicapped individuals. Davis v. Southeastern Community College, 574 F.2d 1158, 1159 (4th Cir. 1978), rev'd on other grounds, 442 U.S. 397, 99 S. Ct. 2361, 60 L. Ed. 2d 980 (1979); Leary v. Crapsey, 566 F.2d 863, 865 (2d Cir. 1977); United Handicapped Fed'n v. Andre, 558 F.2d 413, 415 (8th Cir. 1977); Lloyd v. Regional Transp. Auth., supra; see also Cort v. Ash, 422 U.S. 66, 95 S. Ct. ...