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PAEGLE v. DOI

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


February 8, 1993

ILMAR PAEGLE, Plaintiff,
v.
DEPARTMENT OF THE INTERIOR, et. al., Defendants.

The opinion of the court was delivered by: JOHN H. PRATT

MEMORANDUM OPINION

 Before the Court are plaintiff's Motion for Partial Summary Judgment as to Counts I and II of his Amended Complaint and defendants' Motion for Partial Summary Judgment as to Count I and to Dismiss Counts II and III. There has been full discovery and the issues have been extensively briefed. For the reasons given below, we deny plaintiff's motion and grant defendants' motion.

 I. Background

 Plaintiff, Ilmar Paegle, has been an officer with the United States Park Police ("Park Police"), a subdivision of the Department of Interior, for the last nineteen years. In November 1987, plaintiff was a "private" in the Alcohol/Speed Enforcement Unit within the Patrol Branch and took an exam offered to officers interested in promotion from "private" to "sergeant." Plaintiff was informed that, based on his test results and his paperwork, he ranked twenty-first on the list of candidates eligible for promotion and that he would be promoted in that rank order. Subsequently, the Park Police notified plaintiff that he was to be promoted on November 20, 1988, and solicited plaintiff's choice of patrol and communication sergeants' positions for the new assignment. Plaintiff informed the Park Police that he wished to be elevated to the patrol sergeant's position in District One.

 Prior to his scheduled promotion, however, plaintiff injured his back while lifting equipment and was placed on sick leave and then on limited duty. *fn1" The first injury occurred in March 1988, and plaintiff returned to full duty in June 1988. Plaintiff reinjured his back in July 1988, while effecting an arrest, and was diagnosed by his physician as having Degenerative Disc Syndrome. Plaintiff was placed on limited duty at his own physician's recommendation from July 1988 through March 1989.

 On November 7, 1988, before plaintiff was scheduled to take his new position, he was informed that he could not be promoted while on limited duty. A superior explained to plaintiff that it was a general, unwritten policy not to promote persons who were unable to perform the full range of police duties. Plaintiff was subsequently passed over for promotion on November 20, 1988, while five persons ranking below him on the list received promotions.

 He was eventually promoted to patrol sergeant on August 21, 1989, following his return to full duty on July 21, 1989.

 Plaintiff filed the present suit in January 1991 to contest the nine month delay in his promotion. In Count I of his Amended Complaint, plaintiff alleges that defendants violated Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq. (Supp. 1992), (hereinafter "Rehabilitation Act") by failing to reasonably accommodate his needs despite his known handicap. Plaintiff also alleges that the delay in promotion violated his rights under the Civil Service Reform Act ("CSRA"), 5 U.S.C. § 2301 et seq. (Supp. 1992) (Count II), and under the due process and equal protection clauses of the Fifth Amendment (Count III). Plaintiff seeks an injunction awarding him back pay for the period between November 20, 1988 and August 21, 1989, placement on the sergeant's priority list dating from November 20, 1988, and costs and attorney's fees.

 This matter comes before the Court upon dispositive motions filed by both parties. Plaintiff has moved for partial summary judgment with respect to Counts I and II, the handicap discrimination and CSRA claims respectively. Defendants have also moved for partial summary judgment with respect to the handicap discrimination claim, and have moved to dismiss Counts II and III primarily on the grounds that the Rehabilitation Act constitutes plaintiff's exclusive remedy.

 II. Discussion

 A. Rehabilitation Act Claim

 In reviewing plaintiff and defendants' motions for summary judgment with respect to plaintiff's Rehabilitation Act claim, this Court may award summary judgment when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. *fn5" Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 In the present case, the parties do not dispute the facts, but differ over whether plaintiff has a valid cause of action under Section 504 of the Rehabilitation Act. That section provides, in part, that:

 No otherwise qualified individual with handicaps in the United States, as defined in section 706(8) of this title shall, solely by reason of her or 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) (Supp. 1992). If the individual is a "qualified handicapped . . . employee," government agencies employing such individuals are required to make "reasonable accommodation to the known physical or mental limitations." 29 C.F.R. § 1613.704(a) (1992).

 Plaintiff alleges that the Park Police's denial of his promotion while he was on limited duty violated Section 504 of the Rehabilitation Act because 1) he was a handicapped individual as a result of his back injuries, 2) he was otherwise qualified for the rank of sergeant because not all sergeant positions required the exercise of general law enforcement duties, and 3) despite these facts, the Park Police failed to reasonably accommodate his handicap by assigning him to such a position. Because we find that plaintiff was neither "handicapped" nor "otherwise qualified" for the sergeant's position, plaintiff's Rehabilitation Act claim is without merit. *fn2"

 Plaintiff's argument fails from the start because he has failed to show that he was in fact "handicapped." At the time he was passed over, plaintiff appeared to believe, and certainly represented to the Park Police, that he suffered from a temporary injury rather than a permanent, disabling condition. Plaintiff described his first back injury as a spasm in his lower back that required temporary bed rest. See Plaintiff's Illness/Injury Record of April 25, 1988, Exhibit C to Plaintiff's Memorandum in Support of his Motion for Partial Summary Judgment ("Plaintiff's Motion"). Following a brief sick leave and temporary assignment to limited duty, plaintiff resumed his full duty activities on June 8, 1988. Even after the onset of his second back problem, which his physician diagnosed as Degenerative Disc Syndrome, his physician informed the Park Police that he believed "Mr. Paegle can return to full duty if he is asymptomatic for six months." See Letter of Dr. Gary Kaplan, Exhibit H to Plaintiff's Motion. Plaintiff did, in fact, return to full duty in July 1989 and was promoted to his requested position as patrol sergeant on August 21, 1989.

 Plaintiff's temporary injury, although painful and disabling at the time, does not constitute a "handicap" for the purposes of the Rehabilitation Act. A handicapped person, under the definition of the Act, is one

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

 29 U.S.C. § 706(8)(b)(Supp. 1992) (emphasis added); 29 C.F.R. § 1613.702(a)(1992) . Plaintiff neither meets the definition of "handicap" under the first or the third definitions. *fn3"

 First, the Act identifies a handicap as a severe disability of a permanent nature. The handicap must limit one or more "major life activities," which are defined as "functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. 1613.702(c)(1992). The regulations further define "physical or mental impairment" to include any of a number of permanent, disabling conditions. *fn4"

 It is well established that the Act was never intended to extend to persons suffering from temporary conditions or injuries. "In general, a temporary condition is not considered a handicap under the Rehabilitation Act." Visarraga v. Garrett, No. C-88-2828, 1992 U.S. Dist. LEXIS 9164, at *13 (N.D. Cal. June 16, 1992) (holding that plaintiff's lower back strain-sprain was not a handicap under Rehabilitation Act). See also Evans v. Dallas, 861 F.2d 846, 852-53 (5th Cir. 1988) (plaintiff's knee injury which required surgery but did not constitute "impairment of a continuing nature" was not a handicap); Grimard v. Carlston, 567 F.2d 1171, 1174 (1st Cir. 1978) (fractured and dislocated ankle not a handicap); Saffer v. Town of Whitman, No. 85-4470, 1986 WL 14090, at *1 (D. Mass Dec. 2, 1986) (temporary condition such as pregnancy not a handicap). Because plaintiff never represented his back injury as anything but a temporary disablement, he cannot be considered "handicapped" under the first definition of that term.

 Nor has plaintiff, secondly, established that he was "regarded as having such an impairment." Plaintiff argues that, by placing him on limited duty, defendants acknowledged that he had a handicap. All evidence indicates, however, that the Park Police placed him on limited duty with the expectation that he would soon recover, having been informed by plaintiff and his doctor that plaintiff's condition was temporary. In fact, had plaintiff's superiors considered plaintiff to be permanently disabled, they would have terminated his employment rather than place him on limited duty. *fn5"

 We find, additionally, that even if we considered plaintiff "handicapped" for the purposes of the Rehabilitation Act, he has not established that he was a "qualified handicapped person" for the position of sergeant. A "qualified handicapped person" is one

 who, with or without reasonable accommodation, can perform the essential functions of the position in question without endangering the health and safety of the individual or others.

 29 C.F.R. § 1613.702(f). See also Southeastern Community College v. Davis, 442 U.S. 397, 407, 60 L. Ed. 2d 980, 99 S. Ct. 2361 (1979) (An "otherwise qualified person is one who is able to meet all of a program's requirements in spite of his handicap.").

 Plaintiff has not demonstrated that he was able to meet all the essential functions of being a sergeant "in spite of" his handicap. With the exception of those on limited duty, all Park Police officers, including sergeants, must be able to fully perform law enforcement functions. *fn6" The Mission and General Policy Statement of the Park Police explicitly provides:

 Whenever the Force believes a crime has been committed or is about to be committed, it is our responsibility and obligation to prevent, suppress, investigate, or solve the crime wherever we may be assigned within the National Park Service.

 See Exhibit X to Defendants' Motion, at 4. As noted above, the physical qualification standard within the Park Police disqualifies any officer unable to perform law enforcement duties due to a physical disability. See note 5 supra. Since plaintiff was not able to perform these duties, he was not "otherwise qualified" for any sergeant's position.

 Having determined that plaintiff was neither "handicapped" nor "otherwise qualified" for the purposes of the Rehabilitation Act, there was no obligation upon defendants pursuant to 29 C.F.R. § 1613.704(a) to accommodate plaintiff by promoting him while he was on limited duty. Since plaintiff has failed to establish the essential elements of his claim, summary judgment must be entered for defendants on Count I.

 B. CSRA Claim

 Plaintiff has also moved for summary judgment on Count II of his Amended Complaint, which alleges a violation of the Civil Service Reform Act ("CSRA"), 5 U.S.C. § 2301 et seq. (Supp. 1992). That Act regulates employee-manager relations in federal government, in part by establishing "merit systems principles" and "prohibited personnel practices." Specifically, plaintiff contends that the delay in his promotion violates the merit systems principles of section 2301 requiring "fair and equitable treatment" without regard to any "handicapping condition." *fn7"

 Defendants have filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1), arguing, properly, that this Court lacks jurisdiction to hear plaintiff's CSRA claim. This Circuit, among many other circuits, has long held that there is no implied right of action under the CSRA allowing plaintiff to remedy alleged violations of the merit systems principles in federal district court. See Borrell v. U.S. International Communications Agency, 221 U.S. App. D.C. 32, 682 F.2d 981, 988 (D.C. Cir. 1982) ("Congress did not mean to allow the district courts any extensive supervisory jurisdiction over the way in which the CSRA's mandates are enforced"); see also Schrachta v. Curtis, 752 F.2d 1257 (7th Cir. 1985); Veit v. Heckler, 746 F.2d 508 (9th Cir. 1984); Braun v. United States, 707 F.2d 922 (6th Cir. 1983). Rather, Congress established in the Act "a detailed enforcement scheme to effect its purpose," requiring that plaintiff petition the Office of Special Counsel ("OSC") to review claims of prohibited personnel practices and seek correction before the Merit Systems Protection Board ("MSPB"). *fn8" Borrell, 682 F.2d at 987. Since plaintiff has failed to exhaust the appropriate administrative remedies for a CSRA claim, this Court is obliged to dismiss plaintiff's claim for lack of jurisdiction.

 C. Constitutional Claims

 Finally, Count III of plaintiff's Amended Complaint alleges a violation of the equal protection and due process clauses of the Fifth Amendment. "Discriminatory employment policies and practices such as denying promotion because of handicap are in violation of Plaintiff principals [sic] of equal protection incorporated in the fifth amendment . . . The practices of Defendants's [sic] create a categorical and irrebuttable presumption against promotion of handicapped employees in violation of the due process clause of the Fifth Amendment . . ." Amended Complaint P 34.

 Defendants maintain that plaintiff's constitutional claims must be dismissed because the Rehabilitation Act is plaintiff's exclusive remedy. We agree that when a federal employee seeks to redress rights guaranteed by the Rehabilitation Act, that Act preempts other actions to redress the same discrimination. See Shirey v. Devine, 216 U.S. App. D.C. 369, 670 F.2d 1188, 1191 n. 7 (D.C. Cir. 1982) (noting similarities between Title VII and Rehabilitation Act and extending principle that Rehabilitation Act would provide exclusive remedy for handicap discrimination claims).

 In considering plaintiff's constitutional claims, "the pertinent inquiry is whether plaintiff is 'seek[ing] to redress the violation of rights guaranteed by the [Rehabilitation Act].'" Thorne v. Cavazos, 744 F. Supp. 348, 351-52 (D.D.C. 1990) (citing Davis v. Passman, 442 U.S. 228, 247 n. 26, 60 L. Ed. 2d 846, 99 S. Ct. 2264 (1979)). "In other words, plaintiff can only pursue his constitutional claims if the applicable statutes do not afford him a remedy for the violations he is seeking to redress." Id.

 Since plaintiff's equal protection and fifth amendment claims *fn9" are also based on alleged claims of handicap discrimination, the Rehabilitation Act would redress the alleged violations and would therefore be his exclusive remedy. Accordingly, plaintiff's constitutional claims must be dismissed.

 Conclusion

 For the reasons given above, this Court denies plaintiff's Motion for Partial Summary Judgment on Counts I and II of his Amended Complaint and grants defendants' Motion for Summary Judgment on Count I and to Dismiss Counts II and III. An Order consistent with the above has been entered this day. {F. Supp. n} one

 EDITOR'S NOTE: The following court-provided text does not appear at this cite in 813 F. Supp. 61.

 JOHN H. PRATT

 United States District Judge

 Date 8 Feb 93

 ORDER - February 8, 1993, Filed

 Upon consideration of plaintiff's Motion for Partial summary Judgment, defendants' Motion for Summary Judgment and to Dismiss, and the opposition thereto, and the entire record herein, and for reasons stated in an accompanying Memorandum Opinion entered this day, it is by the Court this 8th day of February, 1993,

 ORDERED that plaintiff's Motion for Partial Summary Judgment as to Counts I and II of his Amended Complaint is denied; and it is

 ORDERED that defendants' Motion for Summary Judgment as to Count I of plaintiff's Amended Complaint and to Dismiss Counts II and III of plaintiff's Amended Complaint is granted; and it is

 FURTHER ORDERED that plaintiff's case is dismissed with prejudice, each party to bear its own fees and costs.

 JOHN H. PRATT

 United States District Judge


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