Gallagher v. Croghan Colonial Bank

89 F.3d 275, 68 Empl. Prac. Dec. (CCH) 44,195
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 12, 1996
DocketNo. 95-3285
StatusPublished
Cited by20 cases

This text of 89 F.3d 275 (Gallagher v. Croghan Colonial Bank) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gallagher v. Croghan Colonial Bank, 89 F.3d 275, 68 Empl. Prac. Dec. (CCH) 44,195 (6th Cir. 1996).

Opinion

SUHRHEINRICH, Circuit Judge.

Plaintiff Helen Jean Gallagher appeals the district court’s grant of summary judgment to defendants on her claims of age and handicap discrimination and her state law claim of intentional infliction of emotional distress. Defendants are Croghan Colonial Bank (“Croghan”) where plaintiff was employed as a teller, and four employees of Croghan. We AFFIRM.

I.

Plaintiff was born in 1930 and was sixty years old when she brought this action. She began employment as a teller at a Croghan branch office in 1971. She later transferred to the main office, where she worked at the drive-through window. At the main office, Croghan documented certain deficiencies in plaintiffs performance. Due to customer complaints in April and May 1990, plaintiff was transferred to a mail clerk position at a different location. Plaintiffs transfer was effected without a reduction in pay or benefits. Croghan claims that upon this transfer it informed plaintiff that she would be terminated if her performance did not improve.

Plaintiff took medical leave from August 24, 1990 until October 9, 1990, due to vision problems. Defendants contend that plaintiffs performance did not improve after her return to work in October. Croghan terminated her employment on January 15, 1991.

Plaintiff filed a charge with the state civil rights commission and the EEOC alleging that Croghan discriminated against her on the basis of her age and handicap in transferring her to the mail clerk position and dismissing her. Thereafter, plaintiff filed an eleven-count complaint in district court. The district court granted summary judgment to defendants on all claims except plaintiffs claim of age discrimination in her discharge. Plaintiff was granted leave to dismiss that remaining claim without prejudice in order to appeal the claims now before this court: (1) handicap discrimination pursuant to the Rehabilitation Act of 1973,29 U.S.C. §§ 794 and 794a (“Act”); (2) age discrimination in her transfer pursuant to the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (“ADEA”); and (3) intentional infliction of emotional distress under state law.

II.

We review the district court’s grant of summary judgment de novo. Harrow [277]*277Prods., Inc. v. Liberty Mut. Ins. Co., 64 F.3d 1015, 1019 (6th Cir.1995). Summary judgment is proper if “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(e); Harrow, 64 F.3d at 1019.

A. Handicap Discrimination Under Rehabilitation Act

Plaintiff claims that defendants’ conduct violated the Rehabilitation Act, which prohibits “any program or activity receiving Federal financial assistance” from discriminating on the basis of a disability. 29 U.S.C.A. § 794 (West Supp.1995). The Act further provides that the remedies of Title VI of the Civil Rights Act of 1964 be available to persons aggrieved under the Act. 29 U.S.C.A. § 794a (West 1985). “Federal financial assistance” is defined in accompanying regulations as “any grant, loan, contract (other than a procurement contract or a contract of insurance or guaranty)” involving federal assistance. 28 C.F.R. § 41.3(e) (1995).

Plaintiff maintains that Croghan is a recipient of federal aid for the purposes of the Rehabilitation Act because it makes student loans which are subsidized and guaranteed with federal funds. That is, Croghan receives federal funds directly as compensation for making student loans at below-market interest rates. In the event of a default, the state aid commission is authorized to use state and federal funds to reimburse lenders such as Croghan. Ohio Rev.Code. Ann. § 3351.13 (Anderson 1995).

The district court determined that plaintiff had not established a prima facie case of discrimination under the Rehabilitation Act because Croghan was not an “intended recipient” of federal financial assistance for purposes of the Rehabilitation Act, relying on the analysis of United States Dep’t of Transp. v. Paralyzed Veterans, 477 U.S. 597, 106 S.Ct. 2705, 91 L.Ed.2d 494 (1986). In Paralyzed Veterans, the Supreme Court held that commercial airlines were not recipients of federal assistance for purposes of the Rehabilitation Act merely because they derived economic benefit from federal assistance to airports and the air traffic control system. Id. at 607, 106 S.Ct. at 2712.

Paralyzed Veterans is not directly applicable because, unlike the airlines in that case, Croghan actually receives federal funds. Nevertheless, Paralyzed Veterans suggests in dicta that the operative inquiry in such cases is whether an entity is the “intended recipient” of the benefits of the federal assistance. Id. at 606-07, 106 S.Ct. at 2712-13. Using this analysis, the district court evaluated the purpose of the Higher Education Act of 1965, the federal statute authorizing the federal funds at issue. 20 U.S.C.A. § 1071(a)(1) (West 1990). The district court found that the intended recipients of the assistance were students, not the banks which disburse the loans. Therefore, the district court held, Croghan could not be considered a recipient of “Federal financial assistance” for purposes of the Rehabilitation Act.

Plaintiff argues that the Eleventh Circuit’s opinion in Moore v. Sun Bank, 923 F.2d 1423 (11th Cir.1991), should control. Moore held that the Rehabilitation Act applied to a bank because it made loans guaranteed by the Small Business Administration. Id. at 1432. The Moore court distinguished mere beneficiaries, such as the airlines in Paralyzed Veterans who were not direct recipients of federal funds, from banks receiving default reimbursements made directly from Treasury monies. Id. at 1432. Defendants counter that Moore is inconsistent with Paralyzed Veterans.

Initially, we note that the regulations accompanying the Act clearly exclude contracts of insurance or guaranty as well as procurement contracts. .28 C.F.R. § 41.3(e). Both aspects of the program at issue in our case fall within these exclusions. The default insurance is a “contract of insurance” excluded by the regulations. The interest subsidies provided to Croghan are akin to procurement contracts, in that the subsidies are compensation by the government for lending to students at below-market rates.

An agency’s construction of a statutory scheme that it is entrusted to administer is entitled to a degree of deference. Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S.

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Gallagher v. Croghan Colonial Bank
89 F.3d 275 (Sixth Circuit, 1996)

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