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CORTES v. BOARD OF GOVERNORS

May 31, 1991

JULIO CORTES, Plaintiff,
v.
BOARD OF GOVERNORS, et al., Defendants


John F. Grady, United States District Judge.


The opinion of the court was delivered by: GRADY

JOHN F. GRADY, UNITED STATES DISTRICT JUDGE.

 FACTS

 The facts of the case were stated at length in the memorandum opinion denying defendant's motion for summary judgment. Cortes v. Bd. of Governors, et al., No. 89 C 3449 (Mem. Op. November 14, 1990). The facts necessary for the determination of this motion are as follows.

 In his complaint, plaintiff sought compensatory and punitive damages, back pay, front pay, liquidated damages, attorneys fees and costs, promotion and other equitable relief. Defendants then moved to strike portions of the complaint. Defendants' motion to strike was stayed while their motion for summary judgment was under consideration. Following this court's opinion denying defendants' summary judgment motion, leave was granted to the parties to file supplemental memoranda on defendants' motion to strike, addressing the issue of what remedies are available under § 504. Defendants argue that plaintiff's prayers for compensatory, punitive and liquidated damages, back pay, front pay and interest, and plaintiff's jury demand, should be stricken.

 DISCUSSION

 The Rehabilitation Act does not specify whether a plaintiff can sue for damages under § 504. The statute states, "the remedies, procedures and rights set forth in Title VI of the Civil Rights Act of 1964 [ 42 U.S.C.A. § 2000d et seq.] 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). The Supreme Court has held that § 504 authorizes a plaintiff who alleges intentional discrimination to bring an action for back pay, but in the same opinion, it specifically refrained from determining the extent to which money damages are available. See Consol. Rail Corp. v. Darrone, 465 U.S. 624, 630, 79 L. Ed. 2d 568, 104 S. Ct. 1248 (1984).

 Because the remedy provision of § 504 refers to Title VI, the first step is to look at what remedies are available under Title VI. Title VI authorizes relief "consistent with the objectives of the statute . . .," 42 U.S.C. § 2000d-1. In Guardians Assoc. v. Civil Serv. Comm'n, New York City, 463 U.S. 582, 77 L. Ed. 2d 866, 103 S. Ct. 3221 (1983) (plurality opinion), the Supreme Court held that a plaintiff must allege intentional discrimination to get monetary relief under Title VI, but failed to define what monetary relief would be available. Guardians, 463 U.S. at 595. The Court, in a plurality opinion, noted that "make whole" remedies are not ordinarily appropriate in private actions seeking relief under statutes passed pursuant to the Spending Clause. Guardians, 463 U.S. at 596. However, the plurality of the Court stated that "in cases where intentional discrimination has been shown, . . . it may be that the victim of the intentional discrimination should be entitled to a compensatory award . . . ." Guardians, 463 U.S. at 597. The Court declined to so hold because the plaintiffs in Guardians charged the defendants with disparate impact, rather than intentional, discrimination. Id.

 The lower courts that have addressed the issue of the remedies available under Title VI are divided. Compare Gilliam v. City of Omaha, 388 F. Supp. 842 (D. Neb. 1975), aff'd (without mention of remedies), 524 F.2d 1013 (8th Cir. 1975); Flanagan v. President and Directors of Georgetown College, 417 F. Supp. 377 (D.D.C. 1976) (allowing suits for damages under Title VI) with Davis v. Spanish Coalition for Jobs, 676 F. Supp. 171, 173 (N.D.Ill. 1988) (citing Concerned Tenants Assoc. v. Indian Trails Apartments, 496 F. Supp. 522, 527 (N.D.Ill. 1980)) (Title VI authorizes only equitable remedies); Franklin v. Gwinnett County Public Schools, 911 F.2d 617, 619-622 (11th Cir. 1990) (plaintiff could not sue for compensatory damages under Title VI).

 Although the courts are divided on the issue of whether compensatory damages are available under § 504, the majority of courts that have ruled on the issue have held in favor of the damages remedy. *fn1" Illustrative of the reasoning behind that view is Miener v. State of Missouri, 673 F.2d 969 (8th Cir.), cert. denied, 459 U.S. 909, 74 L. Ed. 2d 171, 103 S. Ct. 215 (1982). In Miener, the court started from the general rule enunciated by the Supreme Court in Bell v. Hood, 327 U.S. 678, 684, 90 L. Ed. 939, 66 S. Ct. 773 (1946), that "where legal rights are invaded and a statute provides a right to sue for such invasion, federal courts may use any available remedy to make good the wrong." Miener, 673 F.2d at 977. The court then found that the administrative remedies provided for in the Rehabilitation Act would be inadequate to remedy plaintiff's injury. Miener, 673 F.2d at 978. Finally, the court pointed out that the House/Senate Conference Committee eliminated a provision which would have prohibited money damages when Congress amended the Rehabilitation Act in 1978, indicating that the Committee did not intend to prohibit money damages as a remedy. Miener, 673 F.2d at 978 (citing H.R.Rep. 95-1780, 95th Cong., 2d Sess., reprinted in [1978] U.S. Cong. & Ad. News 7312, 7375, 7379).

 Some district courts have held that money damages are not available under § 504. *fn2" These courts rely principally on the similarities between § 504 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(g), and point out that only equitable remedies are available under Title VII. See, e.g., Byers, 635 F. Supp. at 1391. However, Title VII, unlike § 504, specifically defines what relief is available under the statute, and refers only to equitable relief. *fn3" Thus, the remedy portions of Title VII are not analogous to § 504.

 The weight of authority supports the view that plaintiff is entitled to seek compensatory damages under § 504. *fn4"

 This court has already found that plaintiff has stated a claim for intentional discrimination, *fn5" so that he may bring a claim for back pay and front pay. See Darrone, 465 U.S. at 630; Ventura v. Federal Life Ins. Co., 571 F. Supp. 48 ...


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