author: GASCH, District Judge.

text:
    Ava P. TRAHAN, et al., Plaintiffs, v. Donald T. REGAN, et al., Defendants.
    Civ. A. No. 82-3004.
    United States District Court, District of Columbia.
    Nov. 18, 1985.
    Bruce M. Fried, Washington, D.C., for plaintiffs.
    Edith Marshall, U.S. Dept, of Justice, Washington, D.C., for defendants.
   MEMORANDUM

GASCH, District Judge.

Currently before the Court is plaintiffs’ application for an award of attorneys’ fees and costs. For the reasons stated below, plaintiffs are awarded $25,743.75 in fees and $80 in costs.

I. THE FACTUAL BACKGROUND

This case concerns a notice mailed by the Department of Health and Human Services to Supplemental Security Income (SSI) recipients. The mailings asked approximately four million SSI recipients to sign a consent form allowing the Social Security Administration to obtain confidential tax information from the Internal Revenue Service (IRS). The forms stated, in part:

You have a choice about signing the form. But we must have accurate information about your income and what you own to pay your [SSI] checks. If you do not sign the form, your [SSI] checks may be affected.

The initial suit challenging the mailing was dismissed on a number of grounds. See Tierney v. Schweiker, No. 82-1638 (D.D.C. July 6, 1982). The IRS thereafter received consent forms signed by SSI recipients, including the plaintiffs. Plaintiffs then filed the instant suit to block any disclosure by the IRS. The Court granted defendants’ motions to dismiss for lack of subject-matter jurisdiction and failure to state a claim. Trahan v. Regan, 554 F.Supp. 57 (D.D.C.1982).

The Court of Appeals reversed this Court’s ruling and, upon reaching the merits, found that the consent forms were invalid because they were in violation of IRS regulations and because they could not result in a knowing waiver of confidentiality rights. Tierney v. Schweiker, 718 F.2d 449, 445-57 (D.C.Cir.1983). Plaintiffs then applied for attorneys’ fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412.

II. DISCUSSION

A. Application of 1985 Amendments to the EAJA

Sections of the EAJA which are relevant to this application were amended on August 5, 1985. See Equal Access to Justice Act Amendments, Pub.L. No. 99-80, 99 Stat. 183 (1985). These amendments apply to “cases pending on or commenced on or after” August 5, 1985. Id. § 7(a). The government argues that “cases pending” refers only to cases pending on their merits and not to pending attorneys’ fees applications.

The “plain meaning” of the statute indicates that the amendments apply to this case. The statute does not qualify “eases pending” so as to exclude pending fee applications. Indeed, where a statute is concerned solely with fee applications, “cases pending” presumably would be commonly understood to include pending fee applications. As the Supreme Court recently noted:

[Djeference to the supremacy of the legislature, as well as recognition that congressmen typically vote on the language of a bill, generally require us to assume that “the legislative purpose is expressed by the ordinary meaning of the words used.” Going behind the plain language of a statute in search of a possibly contrary congressional intent is a step to be taken cautiously even in the best of circumstances.

United States v. Locke,—U.S.-, 105 S.Ct. 1785, 1793, 85 L.Ed.2d 64 (1985); see also Inner City Broadcasting Corp. v. Sanders, 733 F.2d 154, 158 (D.C.Cir.1984).

The Court acknowledges, however, that some of the legislative history contradicts this “plain meaning.” The House Report and floor debate on H.R. 2378, the EAJA amendments bill, indicate some confusion as to the effective date provisions. During debate on the amendments, one key supporter of H.R.2378 stated:

I would like to clarify the effective date provisions of H.R.2378 and the relationship of these provisions with the original act. Cases which were pending on October 1, 1984, including fee application proceedings^] would be governed by the original act, provided that the time to file the fee application expired before the date of enactment of this bill.

131 Cong.Reg. H4762 (daily ed. June 24, 1985) (statement of Rep. Kastenmeier, Chairman of the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the House Committee on the Judiciary). The House Report on the bill, on the other hand, states:

The changes which are made by H.R. 2378 which merely clarify existing law are retroactive, and apply to matters which were pending on, or commenced on or after October 1, 1981. However, changes which are made by H.R.2378 and which expand or otherwise change existing law shall take effect on the date of enactment and shall apply to matters pending on or commenced after that date.

H.R.Rep. No. 120, 99th Cong., 1st Sess. 11 (1985), U.S.Code Cong. & Admin.News 1985, pp. 132, 139.

The 1985 amendments relevant to this case concern the meaning of “position of the United States” and “substantially justified.” These phrases were part of the original EAJA, and the legislative history reveals that the 1985 amendments affecting these phrases were intended to “clarify” interpretation of existing law. As such, under the standard articulated in the House Report, these clarifications are applicable to this case.

The Court thus concludes that, through a “plain meaning” reading of the statute or by reference to legislative history, the 1985 amendments to the EAJA that are relevant to this case will govern assessment of the instant attorneys’ fees application.

B. The EAJA Standard

As amended, the EAJA provides:

[A] court shall award to a prevailing party ... fees and other expenses ... incurred by that party in any civil action ..., including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

28 U.S.C. § 2412(d)(1)(A). Accordingly, if a party seeking attorneys’ fees can establish that he is a “prevailing party,” the government then can avoid an attorneys’ fees award only by showing that its actions were “substantially justified” or that “special circumstances” counsel against an award.

1. “Prevailing Party” Requirement

The EAJA does not define “prevailing party” generally, but the phrase has been construed expansively. The Supreme Court recently articulated a typical construction:

[Pjlaintiffs may be considered “prevailing parties” 'for attorney’s fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit. This is a generous formulation____

Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983).

Here defendants contend that plaintiffs’ success was limited because plaintiffs sought injunctive, declaratory, mandamus and damages relief and received only declaratory relief. Nonetheless, plaintiffs sought, and received, a judicial decree prohibiting the release of confidential tax information on the basis of the consent forms. In that sense, plaintiffs succeeded on a “significant issue” that achieved “some of the benefit the parties sought in bringing suit”; as such, plaintiffs clearly are “prevailing parties.”

2. “Position of the United States”

Prior to the 1985 amendments, the law in this circuit with respect to “the position of the United States” was set by Spencer v. National Labor Relations Board, 712 F.2d 539 (D.C.Cir.1983). Spencer held that “ ‘the position of the United States,’ for purposes of the [EAJA], means the arguments relied upon by the government in litigation.” Id. at 557.

This construction was overturned by the 1985 amendments, however:

“[P]osition of the United States” means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based____

Pub.L. No. 99-80, § 2(c)(2)(B), amending 28 U.S.C. § 2412(d)(2). The House Report, moreover, specifically rejects the “narrow interpretation” of Spencer and states that the proper construction “is much broader than the litigation position, and includes actions and omissions of an agency which formed the basis for the adversary adjudication.” H.R.Rep. No. 120, at 11 & n. 19, U.S.Code Cong. & Admin.News 1985, p. 139, 140. The Report adds: “An omission which may be relevant includes the failure of an agency or its staff to act based on a statutory, regulatory, or constitutional duty.” Id. at 11.

The EAJA does not define when an action is “substantially justified.” The 1985 House report, however, states:

Several courts have held correctly that “substantial justification” means more than merely reasonable. Because in 1980 Congress rejected a standard of “reasonably justified” in favor of “substantially justified,” the test must be more than mere reasonableness.

H.R.Rep. No. 120, at 9, U.S.Code Cong. & Admin.News 1985, p. 138. The “substantially justified” determination is to be made “on the basis of the record ... which is made in the civil action for which fees and other expenses are sought.” Pub.L. No. 99-80, § 2(b), 99 Stat. 183, 184 (1985).

Thus, this Court must look to the “record ... made in the civil action,” as delineated in Tierney v. Schweiker, 718 F.2d 449 (D.C. Cir.1983), to determine whether the acts and omissions of the IRS which led to the filing of this suit were “substantially justified.”

The Tierney court found that the consent forms were the result of General Accounting Office reports that urged use of tax information to verify eligibility for SSI benefits. 718 F.2d at 451. The reports recommended that federal tax laws be amended expressly to permit access to tax files of SSI recipients or that action proceed administratively under Section 6103 of the Internal Revenue Code, which allows IRS disclosure upon taxpayer consent. Id. at 452.

The Tierney court held that the consent forms eventually developed failed to comply with IRS regulations. 718 F.2d at 455. In addition, the court ruled that the forms could not achieve the “knowing and voluntary” consent contemplated by Section 6103(c). Id. The court concluded that the forms “contained poorly-veiled threats that the recipients’ benefits would be terminated if they failed to sign the forms” and thus made “a mockery of the consent requirement.” Id. at 456.

On the other hand, the court acknowledged that, “At least on its face,” Section 6103(c) appeared to permit obtaining tax information by use of consent forms. Id. at 452. The court also noted that its holding was “limited” and added, “We intimate no views on whether another form — one which contains no veiled threats and sets forth the substantive and procedural rights of Benefits recipients — could result in knowing and voluntary consent.” Id. at 456.

The government advances the novel argument that, because the IRS had not taken “official” action on the forms, there was no “position of the United States” in this case. The Tierney court stated, however, that the IRS appeared “prepared to release the tax information” under the forms. 718 F.2d at 454. In addition, the 1985 amendments to the EAJA specifically define “position of the United States” to include failures to act; here the IRS failed to reject improper consent forms. Defendants’ reading of “position of the United States” would prevent the award of attorneys’ fees in many cases in which declaratory or injunctive relief is sought, since such actions often are litigated before the government takes “official action.” There is no sign that Congress intended this restrictive result.

The determination of whether the IRS’ “position” in this case was substantially justified presents a closer question. The Court concludes that the position was not substantially justified. The legislative history of the 1985 amendments strongly suggests that the EAJA is intended to create “an incentive for careful agency action.” H.R.Rep. No. 120, at 12, U.S.Code Cong. & Admin.News 1985, p. 141. Among the types of agency conduct the EAJA is designed to address is an agency’s failure to act “based on a ... regulatory ... duty.” Id. at 11. Here the IRS was prepared to release tax information pursuant to consent forms which violated clear regulatory requirements. The deterrent purpose of the EAJA thus is well served by finding the IRS action not substantially justified.

C. Amount of the Award

Once it is established that a party is entitled to attorneys’ fees under the EAJA, the court must determine the amount of the award. The standard is as follows:

‘[F]ees and other expenses’ includes ... reasonable attorney fees (The amount of fees awarded under this subsection shall be based upon prevailing market rates for the kind and quality of the services furnished, except that ... attorney fees shall not be awarded in excess of $75 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee).

28 U.S.C. § 2412(d)(2)(A), reenacted by Pub.L. No. 99-80, § 6(a).

In this case, five attorneys seek compensation. Bruce M. Fried claims a total of 206.75 hours spent on the case; Eileen P. Sweeney claims 17.25 hours; Michael R. Schuster claims 86 hours; Evelyn Brody claims 147.50 hours; and Gill Deford claims 10.75 hours. Each attorney requests compensation at the $75-per-hour rate with a 20 percent upward adjustment, for a final per-hour rate of $88.50.

In Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983), the Court stated, “The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” This equation results in a “lodestar” figure that is calculated for each applicant. Murray v. Weinberger, 741 F.2d 1423, 1427 (D.C.Cir.1984). The fee applicant bears the burden of submitting evidence supporting the hours worked and the rates claimed. Hensley, 461 U.S. at 433, 103 S.Ct. at 1939.

1. “Reasonable Hourly Rates”

Calculation of the “reasonable hourly rate” depends upon whether the applicant works for a private law firm or a public interest group. For the former, a reasonable rate is the firm’s “established billing rate[ ]” for that attorney. Laffey v. Northwest Airlines, Inc., 746 F.2d 4, 24 (D.C.Cir.1984). For the latter, the reasonable rate is derived from “the prevailing market rates in the relevant community.” Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984). The community’s “currently hourly rates” should be used. Murray v. Weinberger, 741 F.2d at 1427-28 n. 20. Applicants must produce evidence sufficient to allow the Court to make an objective assessment of the rate. National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1325 (D.C.Cir.1982) (per curiam).

Here the applicants have met the burden set by National Association of Concerned Veterans. The only private attorney is Evelyn Brody, and the applicants have produced evidence showing the per-hour rate charged for her time by her firm. The applicants also have produced affidavits and other evidence relating to the experience of each public-interest attorney and the hourly rates charged in this legal community for similar work. On the basis of this evidence, the Court concludes that $75 per hour is a reasonable rate for each applicant.

2. Upward Adjustment of Hourly Rate

The applicants seek a 20 percent upward adjustment of the hourly rate to compensate for cost-of-living increases, the quality of the representation, and the successful result.

Recent cases indicate that upward adjustments are warranted only in cases of “exceptional success.” Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 1548, 79 L.Ed.2d 891 (1984). The Court cannot conclude that this was a case of “exceptional success.” Nor have the applicants met the “heavy burden” placed upon those “seeking an enhancement of the presumptively reasonable lodestar figure.” Murray v. Weinberger, 741 F.2d at 1430. The Court also concludes that no cost-of-living increase is warranted. In reenacting the EAJA this year, Congress retained the $75-per-hour “cap” on rates, thus establishing that $75 per hour remains a reasonable rate. The Court therefore declines to adjust the $75 rate for inflation.

3. “Hours Reasonably Expended”

The number of hours reasonably expended is gauged by “evaluating the total number of hours expended and disallowing unproductive time or time spent on unsuccessful claims; hours that are ‘excessive, redundant, or otherwise unnecessary’ must be excluded from the lodestar calculation.” Murray v. Weinberger, 741 F.2d at 1427. Furthermore, hours “are not reasonably expended if an attorney duplicates work done earlier by another attorney, if an attorney takes extra time due to inexperience, or if an attorney performs tasks that are normally performed by paralegals, clerical personnel, or other non-attorneys.” Action on Smoking and Health v. Civil Aeronautics Board, 724 F.2d 211, 220-21 (D.C.Cir.1984). The Court “necessarily has discretion” in making these determinations and may exclude specific hours or simply reduce the award. Hensley, 461 U.S. at 436-37, 103 S.Ct. at 1941.

The applicants herein have met the requisite evidentiary burden by providing affidavits detailing time spent by each attorney. Defendants raise vigorous arguments with respect to some of the hours billed by the fee applicants.

a. Time Spent on Consolidated Appeal

Defendants argue that the fee applicants seek to bill hours spent on the consolidated appeal of this case and Tierney v. Schweik er. Judge Gesell rejected the Tierney fee application. See Tierney v. Heckler, No. 82-1638 (D.D.C. Mar. 27, 1984). The Court agrees that the fee applicants may not have two opportunities to recover for time spent preparing issues presented in Tierney. Accordingly, the Court will use its “equitable judgment,” Hensley, 461 U.S. at 437,103 S.Ct. at 1941, and reduce the hours billed for the consolidated appeals by 50 percent. As such, Mr. Fried’s total hours are reduced by 17.25 hours; Ms. Sweeney’s total hours are reduced by 1.75 hours; Mr. Schuster’s total hours are reduced by 6.25 hours; and Ms. Brody’s total hours are reduced by 7.5 hours.

b. Preparation of Fee Application

The original fee application in this case moved to consolidate this case with Tierney v. Schweiker. That motion was rejected by Judge Gesell. Tierney v. Heckler, No. 82-1638 (D.D.C. Feb. 9, 1984). Because the legal issues presented by the consolidation motion differ from those presented by a fee application, and because the consolidation motion was unsuccessful, the Court concludes that reduction of hours claimed for the initial fee application is required. Since the applicants do not specify which hours were spent on the motion to consolidate, the Court will make a 35 percent reduction. Thus, Mr. Fried’s time is reduced by 6.25 hours; Mr. Schuster’s time is reduced by 2.25 hours; and Ms. Brody’s time is reduced by 3.50 hours. Mr. Deford’s 10.75 hours will not be reduced because his work occurred after Judge Ge-sell’s ruling.

c. Issues Not Reached on Appeal

Defendants contend that, since the Court of Appeals did not reach some of plaintiffs’ arguments, the applicants should not receive compensation for time spent on those arguments. The Court rejects this contention, however, because “[l]itigants in good faith may raise alternative legal grounds for a desired outcome, and the court’s rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee."Hensley, 461 U.S. at 435, ducing a fee: 103 S.Ct. at 1940.

d. Unsuccessful Claims

Defendants argue that the Court should exclude hours billed on plaintiffs’ efforts to obtain a temporary restraining order and class certification, both of which were unsuccessful. The Court finds these efforts “unrelated to the claims on which [plaintiffs] succeeded” in that they involved legal theories discrete from plaintiffs’ claims on the merits. Hensley, 461 U.S. at 434-35, 103 S.Ct. at 1939-40; see also Action on Smoking and Health, 12A F.2d at 216. Since these claims were unsuccessful, they should be excluded from the “lodestar” calculus. Laffey v. Northwest Airlines, Inc., 746 F.2d at 13. The 17.5 hours billed by Mr. Fried and the 4.50 hours billed by Mr. Schuster on these issues thus are eliminated from the award.

e. Unnecessary, Excessive, or Duplicative Billing

Defendants make several arguments as to allegedly unnecessary, duplicative, or excessive billing by the applicants. Defendants first point to time billed by several of the applicants in “moot-courting” Mr. Fried, the lead counsel, prior to oral arguments before the Court of Appeals, and in “debriefing” after the argument. The Court, however, cannot find that, where the oral argument will address issues raised by two separate cases, this type of intensive preparation is unnecessary, duplicative, or excessive.

The defendants’ second objection is to the considerable amount of time billed for conferences among the applicants. As a general rule, some consultation with co-counsel is appropriate. The Court believes, however, that reduction of the time billed for this purpose is warranted. First, many of the billing entries do not indicate the purpose of the conferences, which may have been unnecessary or which may have concerned “unsuccessful” claims. Second, the Court believes that the amount of time spent on conferences was excessive. Again exercising its “equitable judgment,” the Court will make a 35 percent reduction of hours billed for conferences. Mr. Fried’s hours are reduced by 5.5 hours; Ms. Sweeney’s, by 1.75 hours; Ms. Brody’s, by 7 hours; and Mr. Schuster’s, by 3.25 hours.

Defendant’s third objection is to 35 hours billed by Ms. Brody for editing Mr. Fried’s draft of the appellate brief. Defendants argue that it is excessive for a first-year associate like Ms. Brody to spend so much time editing the brief of the lead attorney in the case. The Court agrees. Ms. Brody’s affidavit does not indicate why editing the brief required such an inordinately large time commitment. Accordingly, the Court reduces Ms. Brody’s time by 23 hours, on the theory that a suitable “editing” job on an appellate brief should take no longer than two full “billing” days.

The Court’s independent review of the fee application leads it to conclude that the time billed for preparing the supplemental fee application is excessive and should be reduced. Together Mr. Fried and Mr. Deford billed 20 hours to prepare an 11-page document with several supporting affidavits. The Court questions the use of two attorneys for this purpose, and further notes that Mr. Deford’s affidavit makes it clear that he spent time on research which could not in any event yield evidence relevant to this application. The Court concludes that a 50 percent reduction for time billed on the supplemental application is warranted. Mr. Fried’s hours thus are reduced by 4.75 hours, and Mr. Deford’s hours are reduced by 5.5 hours.

f. Miscellaneous Reductions

Several other billing entries require attention. The Court concludes that Ms. Brody should not be compensated for the bill of 2.25 hours spent on “dividing up” the appellate brief among the attorneys. This billing is excessive and involves work that is “normally performed by paralegals, clerical personnel, or other non-lawyers.” Action on Smoking and Health, 724 F.2d at 221. For the same reason, the Court excludes 4.75 hours billed by Mr. Schuster for the clerical work of “arrangement, photocopying, and collation” of the appendix to the appellate brief. Finally, and for self-evident reasons, the Court excludes from Mr. Fried’s total one-half hour billed for a telephone conversation with Judge Gesell’s law clerk.

4. Individual Lodestars

Having determined the reasonable hourly rate and the hours reasonably expended on the litigation, the Court will calculate the lodestar for each attorney. . The 206.75 hours originally claimed by Mr. Fried are reduced by 51.75 hours, for a total of 155 hours. Mr. Fried’s lodestar thus is $11,-625. Ms. Sweeney’s requested total of 17.-25 hours is reduced by 3.50 hours for a new total of 13.75 hours, giving Ms. Sweeney a lodestar of $1,031.25. Ms. Brody’s request for 147.50 hours is reduced by 43.25 hours, yielding a new total of 104.25 hours and a lodestar of $7,818.75. Mr. Schuster’s original total of 86 hours is reduced by 21 hours, yielding a new total of 65 hours and a lodestar of $4,875. Mr. Deford’s request for 10.75 hours is reduced by 5.50 hours, yielding a new total of 5.25 hours and a lodestar of $393.75.

D. Request for Costs

The applicants seek reimbursement for a $10 filing fee, $5 appeal fee, and $65 docketing fee incurred for this litigation. Defendants raise no objections to these fees, and the Court concludes that the $80 costs request should be granted.

      . The Court believes that this fee dispute has commanded an unreasonably large amount of the Court’s time and has made a mockery of the Supreme Court’s admonition that, "A request for attorney’s fees should not result in a second major litigation.” Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983). Prior to oral argument, the parties had filed dozens of documents relating to the application. Ironically, these extensive filings failed to address major aspects of the attorneys’ fees question, and at oral argument the Court was obliged to request additional memoranda.

      . Generally, "even the contemporaneous remarks of a single legislator who sponsors a bill are not controlling in analyzing legislative history," and committee reports may be "far from authoritative as an expression of congressional will." Consumer Product Safety Comm 'n v. GTE Sylvania, 447 U.S. 102, 118, 120, 100 S.Ct. 2051, 2061, 2062, 64 L.Ed.2d 766 (1980). The Court believes, however, that these parts of the legislative history assume greater significance because of the paucity of legislative history on the 1985 amendments. The House Report was the only committee report on the bill, and floor remarks in both Houses were brief.

      . The 1985 amendments do define “prevailing party” for purposes of eminent domain proceedings, Pub.L. No. 99-80, § 2(c)(2)(H), but this amendment is intended only to "clarify the status of condemnation actions under the Act” and does not affect the "expansive view” of "prevailing party” in non-condemnation proceedings. H.R.Rep. No. 120, 99th Cong., 1st Sess. 18, 20 (1985), U.S.Code Cong. & Admin.News 1985, pp. 146, 148.

      . Prior to the 1985 amendments, many courts had rejected the "litigation position” construction and adopted the "underlying action” approach ratified in the 1985 amendments. See Rawlings v. Heckler, 725 F.2d 1192, 1195-96 (9th Cir.1984) (adopting latter construction and citing cases). In this sense, the 1985 amendments merely "clarified" the law and did not change it outright. See, supra, discussion of House Report standard for application of 1985 amendments to pending proceedings.

      . In addition, the EAJA should be construed to provide a greater "incentive for careful agency action” where, as here, the agency’s conduct involves a large number of people and affects their assertion of statutory rights.

      . Defendants challenge the reasonableness of this rate only with respect to Ms. Brody. Defendants assert that some of her work was of “an essentially paralegal nature" that should be compensated at a lower rate. However, where, as here, the fee applicant has substantiated her claims with specific evidence, “the Government must either accede to the applicant’s requested rate or provide specific contrary evidence." National Association of Concerned Veterans, 675 F.2d at 1326. Defendants here have not produced "specific contrary evidence,” so the Court rejects this challenge.

      . The applicants deride the government’s objections as “nit-picking." As the Court has pointed out, however, the government is required to make specific objections if it hopes to mount a successful challenge to a fee application. What the applicants criticize as “nit-picking” is no more than the government's effort to comply with the requirements of governing case law.

      . For example, about 40 percent of the hours billed by Ms. Sweeney were spent in consultation with co-counsel, and 25 of the 38 billing entries made by Ms. Brody involved conferences. By the Court’s rough calculation, more than 50 billed hours were occupied in consultations.

      . Mr. Deford obtained exhibits relating to per-hour rates charged by members of the Los Angeles and Beverly Hills Bar Associations. These documents are irrelevant to this case since evidence as to a "reasonable hourly rate” must relate to the community in which the services were rendered. Murray v. Weinberger, 741 F.2d at 1427-28 n. 20. Information on California rates thus is of no import in ascertaining a “reasonable rate” in this case.


source: Caselaw Access Project

author: RICE, District Judge.

license: Public Domain

text:
    George William PRIDEMORE, Plaintiff, v. LEGAL AID SOCIETY OF DAYTON, Defendant.
    No. C-3-84-881.
    United States District Court, S.D. Ohio, W.D.
    Nov. 19, 1985.

      George William Pridemore, Middletown, Ohio, pro se.
    Neil F. Freund, Jane M. Lynch, Attys. at Law, Dayton, Ohio, for defendant.
   DECISION AND ENTRY GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (DOC. # 15); PLAINTIFF’S MOTION TO VACATE DISCOVERY ORDER DEEMED MOOT (DOC. #10); DEFENDANT’S MOTION TO DISMISS DEEMED MOOT (DOC. # 11); PLAINTIFF’S MOTIONS FOR DEFAULT JUDGMENT OVERRULED (DOCS. # 16, 17); JUDGMENT TO DEFENDANT AND AGAINST PLAINTIFF; TERMINATION ENTRY

RICE, District Judge.

This ease comes before the Court for resolution of the Motion for Summary Judgment filed on May 22, 1985, by Defendant Legal Aid Society of Dayton (Doc. # 15). Plaintiff, a lawyer licensed to practice law in the State of Ohio who is representing himself in this action, has not responded to Defendant’s motion. Fed.R. Civ.P. 56(e) provides that when a motion is filed and properly supported, the opposing parties may not rest upon their pleadings, but must present sufficient evidence to demonstrate the existence of a genuine issue of material fact. At the same time, Rule 56(e) in no way alters the basic standard stated in Fed.R.Civ.P. 56(c) for granting summary judgment. A party is never required to respond to a motion for summary judgment in order to prevail by securing a Court order overruling the motion, since the burden of establishing the non-existence of a material factual dispute always rests with the movant. Smith v. Hudson, 600 F.2d 60, 64 (6th Cir.1979), cert. denied, 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415 (1979).

Plaintiff, as mentioned supra, is a lawyer. In response to advertisements placed by Defendant in certain legal publications, on April 25, 1983, Plaintiff sent Defendant a two-page letter in which he inquired about the possibility of employment as a staff attorney. (Pridemore deposition, p. 34-35 and Exh. A). Defendant then sent Plaintiff a letter, requesting his law school transcript, writing samples and a statement from Plaintiff explaining his interest in employment with Defendant. Attached to Defendant’s letter was a standardized form which stated that Defendant was an equal opportunity employer and which provided applicants with spaces to indicate their sex or race. The form did not ask applicants to supply information about handicaps. Plaintiff believes that he made the following notation on the EEO form: “I am handicapped under EEOC guidelines.” (Pride-more deposition, p. 41). He submitted this EEO form to Defendant along with the other requested application materials.

Plaintiff called Defendant’s office “on and off” from May through August, 1983. (Pridemore deposition, p. 40). He was told during these calls that candidates were being interviewed and that he would be contacted if any more information was required from him. In August of 1983, during the last of these phone calls, a member of Defendant’s staff informed Plaintiff that they were still interviewing candidates for the position of staff attorney. Plaintiff at that point had not been rejected for employment by Defendant. Plaintiff informed the representative of Defendant with whom he spoke during that final conversation that he would be filing a complaint of handicap discrimination by Defendant with the Ohio Civil Rights Commission (OCRC). (Pridemore deposition, p. 42). Plaintiff did file such a complaint in the fall of 1983. Sometime thereafter, Plaintiff received a letter from Defendant, rejecting him from employment. Plaintiff sent a letter in response to the Defendant’s Executive Director, Dalma Grandjean, declaring that he had cerebral palsy, accusing Defendant of handicap discrimination, and offering to take a polygraph examination to substantiate his claim. (Pridemore deposition, Exh. B).

The OCRC conducted an investigation of Plaintiff’s charge, and found no reasonable cause to believe that Defendant had engaged in handicap discrimination. Either shortly before or shortly after the OCRC’s determination, Plaintiff wrote a letter to the Dayton office of the OCRC, and sent a copy to Ms. Grandjean. The letter expressed Plaintiff’s dissatisfaction with the OCRC’s finding, and stated that Ms. Grand-jean had lied to the OCRC in the course of its investigation of Plaintiff’s complaint. (Pridemore deposition, Exh. E). Plaintiff subsequently filed suit against Defendant in this Court, alleging handicap discrimination by Defendant in violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (West Supp.1976-84).

In Jasany v. United States Postal Service, 755 F.2d 1244, 1249-50 & n. 5 (6th Cir.1985), the Sixth Circuit quoted with approval the test for claims of handicap discrimination outlined by the Tenth Circuit in Pushkin v. Regents of University of Colorado, 658 F.2d 1372 (10th Cir.1981). In Pushkin, the first two steps of the method of evaluating Title VII claims set forth by the Supreme Court in cases such as McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1972), was adapted to cases of handicap discrimination as follows:

(1) The plaintiff must establish a prima facie case by showing that he was an otherwise qualified handicapped person apart from his handicap, and was rejected under circumstances which give rise to the inference that his rejection was based solely on his handicap;
(2) Once plaintiff establishes his prima facie case, defendants have the burden of going forward and proving that plaintiff was not an otherwise qualified handicapped person, that is one who is able to meet all of the program’s requirements in spite o/his handicap, or that his rejection from the program was for reasons other than his handicap----

755 F.2d at 1250 n. 5.

The initial difficulty in this case, the Court finds, is determining the handicap or handicaps relevant to Plaintiff’s claim of discrimination. Cerebral palsy is the sole handicap pled in Plaintiff’s Complaint. Plaintiff emphasized in a Motion to Vacate (Doc. # 10) that “cerebral palsy is the sole handicap condition alleged in the Complaint.” Yet, Plaintiff apparently did not indicate to Defendant that he was afflicted by cerebral palsy. Rather, Plaintiff recalls that he indicated on his EEO form that he was “handicapped under EEOC guidelines.” In his deposition, Plaintiff seemed to allude to three possible bases for his claim of handicap discrimination: cerebral palsy, a history of mental illness, and a learning disability. Plaintiff’s final pretrial order (Doc. # 21) mentions no particular handicap as the basis for his claim of handicap discrimination. One witness named in Plaintiff’s final pretrial order is listed as competent to testify to Plaintiff’s learning disability.

In short, cerebral palsy is the only handicap pled by Plaintiff, but two other handicaps have received brief mention in the record. Although pro se litigants are to be treated indulgently in the scrutiny of their pleadings, Plaintiff is not a typical pro se litigant.. He is a lawyer whose position in this case hinges both implicitly and explicitly upon his competence to practice law. This observation having been made, the Court believes nonetheless that Plaintiff’s mental illness and learning disability cannot properly be ignored. In the interests of justice and in a fair and complete treatment of the record, these two conditions will be considered, in addition to Plaintiff’s cerebral palsy, as possible predicates for Plaintiff’s claim of handicap discrimination.

(A) Whether Plaintiff is a “Handicapped Individual” Within the Meaning of 29 U.S.C. § 706(7)(B).

[1] The first component of Plaintiff’s prima facie case of handicap discrimination requires the finding that Plaintiff is a “handicapped individual” falling within the protected class of Section 504 of the 1973 Rehabilitation Act. The relevant statutory definition is contained in 29 U.S.C. § 706(7)(B), which provides that a “handicapped individual” 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.

The “major life activities” referred to in Section 706(7)(B) are in turn defined in 45 C.F.R. § 84.3(j)(2)(ii) as “functions, such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.”

The Court is satisfied that, were cerebral palsy the sole handicap to be answered in this case, summary judgment would have to be entered against Plaintiff on the basis that he fails to fall within the protected class of Section 706(7)(B). Plaintiff testified at his deposition that he has a “faint” ease of cerebral palsy. (Pridemore deposition, p. 70). As the Jasany court made clear, however, an impairment must substantially limit a person’s major life activity or activities before that person can qualify as a “handicapped individual.” Plaintiff’s testimony at his deposition was that cerebral palsy does not impair his ability to walk and talk. He further testified that the impact of his cerebral palsy upon his motor functions is discernible only with the use of sophisticated diagnostic equipment. (Pridemore deposition, p. 70). This condition, which Plaintiff himself characterizes as “mild,” cannot be found to substantially limit one or more of Plaintiff’s major life activities as required by Section 706(7)(B)(i).

Plaintiff’s cerebral palsy also fails to render him a “handicapped individual” under the remaining two subsections of Section 706(7)(B). Although Plaintiff could qualify as handicapped under Section 706(7)(B)(ii) if he could demonstrate a record of a substantially limiting impairment, Plaintiff’s doctors did not even diagnose his condition of cerebral palsy until 1984. (Pridemore deposition, p. 66-67). Nor is there any indication that prior to 1984 he suffered from a “substantially limiting” condition which was only later diagnosed as cerebral palsy. Finally, there is no indication in the record that, as required by Section 706(7)(B)(iii), Defendant regarded Plaintiff as “having such an impairment,” that is, as suffering from a “substantially limiting” condition of cerebral palsy. For these reasons, the Court finds no dispute as to a material fact to interfere with the conclusion that Plaintiff does not qualify as a “handicapped individual” on the basis of cerebral palsy.

As mentioned supra, the Court believes the interests of justice to also require consideration of Plaintiff’s learning disability and past mental illness as possible bases for his qualification as a “handicapped individual” under 29 U.S.C. § 706(7)(B). With respect to Plaintiff’s learning disability, Plaintiff testified at his deposition that he has undergone sensory integration therapy intermittently since the diagnosis of this condition in 1980. (Pride-more deposition, p. 68). Plaintiff indicated his uncertainty as to the symptoms or problems created by this dysfunction, positing only that “I probably have problems reading. Have to compensate time-wise for problems like that.” (Pridemore deposition, p. 81).

Application of the standards of 29 U.S.C. § 706(7)(B) to the learning disability thus described by Plaintiff indicates that no genuine issue of material fact prevents this Court’s conclusion that Plaintiff fails to qualify as a “handicapped individual” on the basis of his learning disability. Any reading or comprehension impediment created by Plaintiff’s sensory disintegration function certainly, by Plaintiff’s own account, does not substantially limit one or more of Plaintiff’s life activities. As such, Plaintiff cannot qualify as a “handicapped individual” pursuant to 29 U.S.C. § 706(7)(B)(i).

In considering whether Plaintiff can be said to have a record of a substantially limiting impairment due to his learning disability, 29 U.S.C. § 706(7)(B)(ii), the Court notes that Plaintiffs condition was not diagnosed until 1980, that is, after he had completed law school and had begun to prepare for the Ohio bar examination. Nothing in the record indicates that Plaintiffs dysfunction has, in the period since its diagnosis, risen to the level that it substantially limited one or more of Plaintiffs major life activities. Given Plaintiff’s successful completion of his academic requirements, including law school, there is no indication in the record for a theory that Plaintiff suffered prior to 1980 from a substantially limiting condition which was only subsequently diagnosed as a learning disability.

Finally, there is no indication that Defendant regarded Plaintiff as suffering from a substantially limiting impairment, as required by 29 U.S.C. § 706(7)(B)(iii). Plaintiff testified at his deposition that he never informed Defendant of his learning disability. (Pridemore deposition, p. 71). For these reasons, no genuine issue of material facts exists as to Plaintiff’s failure to qualify as a “handicapped individual” due to his learning disability.

There are questions of material fact, on the other hand, as the Court proceeds to consider Plaintiff’s qualification as a “handicapped individual” on the basis of his past mental illness. As mentioned supra, on April 25, 1983, Plaintiff sent Defendant a two page letter requesting employment. That letter included the following passage:

Also, as you will notice on my law school transcript, I withdrew from the Spring semester of 1979. I wish this could have been avoided because the course offerings excited me: Law and Social Change, Welfare Litigation, Employment Discrimination and Debtor-Creditor (Bankruptcy). Personal tragedy struck two of my closest friends. One was murdered, while the other later decided that life was not worth living. I sunk into a depression that required hospital treatment. Nearly every employer except VISTA has discrimminated (sic) against me because of this. If this fact causes you any problems, please use this letter as my personal authorization to contact my doctor, Dr. Harry Whitely, Professor of Psychiatry, Northwestern University Medical School. He can tell you what he told VISTA.

(Pridemore deposition, Exh. A, p. 1-2).

Drawing all inferences favorable to Plaintiff, as the nonmovant, Plaintiff’s hospitalization for depression in 1979 indicates that his mental illness substantially limited a major life activity, that of being able to function and to care for himself. Thus, this passage in Plaintiff’s letter to Defendant creates a genuine issue of material fact as to whether, as required by Section 706(7)(B)(ii), Plaintiff had a record, at the time of his application to Defendant, of an impairment which substantially limited one or more of his major life activities.

Given this material factual dispute as to Plaintiff’s qualifications under Section 706(7)(B)(ii) due to a history of mental illness, the Court needs not, and does not, consider whether any additional bases exist for Plaintiff’s qualification as a “handicapped individual.” It instead becomes necessary to consider the remaining two components of Plaintiff’s prima facie case in order to determine whether summary judgment may be entered in favor of Defendant and against Plaintiff. The Court again notes that Plaintiff does not qualify as a “handicapped individual” by virtue of his condition of cerebral palsy, the sole handicap condition pled by Plaintiff.

(B) Whether Plaintiff Was “Otherwise Qualified” for the Position of Staff Attorney.

Assuming Plaintiff to be a “handicapped individual,” the second prong of Plaintiff’s prima facie case under Section 504 is whether Plaintiff was “otherwise qualified” for Defendant’s staff attorney position. The Supreme Court has defined an “otherwise qualified handicapped individual” as “one who is able to meet all of a program’s requirements in spite of his handicap,” provided that none of those requirements are “unreasonable and discriminatory.” Southeastern Community College v. Davis, 442 U.S. 397, 406, 412-13, 99 S.Ct. 2361, 2367, 2370, 60 L.Ed.2d 980 (1979). Regulations promulgated by the Department of Health and Human Services define a “qualified handicapped person” as one “who, with reasonable accommodation, can perform the essential functions of the job in question.” 45 C.F.R. § 84.3(k)(l).

Defendant contends that Plaintiff was not asked to interview for the staff attorney position because, wholly apart from any handicap(s) claimed by him, his application materials indicated that he was not “otherwise qualified” for the job. Defendant’s Executive Director, Dalma Grandjean, avers that one hundred fifty-seven individuals applied for the job, and that sixty-three applicants were selected for an interview. (Grandjean Affidavit, Doc. # 15, Exh. 1, ¶ 4). She states that the position of staff attorney, which involved the conduct of major litigation projects, required both good judgment and the ability to effectively communicate. Id., 1Í 3. Ms. Grandjean explains in her affidavit that Plaintiff’s April 25th letter revealed an unfocused, rambling style of communication, and that it contained mistakes of both spelling and grammar. Id., ¶ 6, 8. The resume submitted by Plaintiff indicated no work experience subsequent to 1981, and only limited experience prior to 1981. Id., 11 6.

For those reasons, Defendant’s position is that Plaintiff was not “otherwise qualified” despite the fact that Plaintiff possessed a law degree from an accredited institution and that he had passed the Ohio bar examination. As an initial proposition, the Court agrees that the organizational and intellectual demands of the position of staff attorney may be considered in the determination of whether a handicapped professional is “otherwise qualified.” See Pushkin v. Regents of University of Colorado, 658 F.2d at 1385-90 (consideration of whether a psychiatrist, who suffered from cerebral palsy was “otherwise qualified” included not only whether he possessed necessary academic degrees, but whether he possessed the experience, intellect and emotional disposition to be a successful psychiatrist); see also Upshur v. Love, 474 F.Supp. 332, 342 (N.D.Cal.1979) (blind candidate for position as school administrator found not “otherwise qualified” due to his lack of experience and familiarity with school administration).

The skills and attributes which Defendant puts forth in its definition of the staff attorney it sought to hire appear no more arbitrary and discriminatory than those characteristics contemplated at trial by the Pushkin and Upshur courts. The Court does not believe, however, that it can conclude that no genuine issues of material fact exist as to whether or not Plaintiff was “otherwise qualified,” given the dependence of this determination upon Defendant’s own good faith, yet subjective requirements for the position which it sought to fill. Given the existence of factual disputes as to this issue, the Court must proceed to the final component of Plaintiff’s prima facie case in order to determine whether summary judgment is to be entered in favor of Defendant and against Plaintiff.

(C) Whether Plaintiff was Rejected Under Circumstances Giving Rise to an Inference of Handicap Discrimination.

Assuming Plaintiff to have been an “otherwise qualified handicapped individual apart from his handicap,” the remaining prong of Plaintiffs prima facie case considers whether Plaintiff was rejected under circumstances giving rise to the inference that his rejection was based solely on his handicap(s). Jasany, 755 F.2d at 1250 n. 5. The Court finds Defendant to have established the absence of a genuine issue as to any material facts susceptible of an inference that Plaintiff was rejected by Defendant solely on the basis of his handicap(s). With this demonstration as to Plaintiffs inability to make out the final prong of his prima facie case of handicap discrimination, summary judgment must be entered in favor of Defendant and against Plaintiff.

The facts and circumstances put forward by Defendant as to Defendant’s receipt of Plaintiff’s April 25th letter and its evaluation of Plaintiff’s application materials raise no inference, in this Court’s opinion, that Plaintiffs rejection was based “solely on his handieap(s).” Plaintiff sent in application materials to Defendant which included a notation on the EEO form that he was handicapped under EEO guidelines and which included mention that he had received hospital treatment for depression. During the next four months, Plaintiff was not asked by Defendant to interview for the position which he sought. That Plaintiff became frustrated and upset, as would any applicant for any position, is understandable. Ninety-three individuals besides Plaintiff, however, also failed to be selected for an interview. The Court does not believe that Plaintiff’s bare mention of or allusion to a handicap should mean that he, without more, is entitled to maintain a cause of action based upon handicap discrimination.

The only other circumstance in the record meriting scrutiny is the fact that Defendant’s formal rejection of Plaintiff for the position for which he had applied occurred sometime after Plaintiff had threatened to file, and then filed a charge of handicap discrimination with the OCRC. To accept that this sequence of events raises an inference of discrimination would be to allow an individual to bootstrap into a prima facie case of handicap discrimination simply by filing an OCRC charge before the potential employer had acted or had the opportunity to act. New individuals, whether job seekers or not, relish waiting for a desired outcome. Yet the lawsuit which Plaintiff seeks to maintain in this Court ought not to be a remedy simply for such frustration.

This is not to say or imply that this Court and other courts ought not to be sensitive to conduct which hints at decisions improperly based on a person’s real or perceived handicaps. In Pushkin, for example, an inference of handicap discrimination was drawn from the fact that plaintiff’s rejection for a residency position at a university hospital was based upon attributes which plaintiff was believed to possess due to his cerebral palsy, rather than upon plaintiff's own ability to function. While obviously there was less contact between Plaintiff and Defendant herein than took place between the parties in Pushkin, their course of dealings, and the very sparseness of their dealings during the application process, do not in themselves raise any inference that Plaintiff was rejected by Defendant solely on the basis of his handicap(s).

A party opposed to a motion for summary judgment is required by Fed.R.Civ.P. 56(e) to do more than rely upon conclusory allegations to defeat the motion. Having considered the two allegations raised by Plaintiff in his deposition, the Court does not believe Plaintiff to have put forward any facts in support of his claim of discrimination which would create a genuine issue for trial.

Plaintiff stated in his deposition that the OCRC investigator who pursued Plaintiff’s claim of handicap discrimination had relayed to Plaintiff, on four different occasions, certain statements which Dalma Grandjean had allegedly made to the OCRC concerning her reasons for not selecting Plaintiff for an interview. Plaintiff contends that the statements made by Ms. Grandjean were false, thus raising an inference of handicap discrimination. (Pride-more deposition, p. 48-49, 71-72). The Court notes that, in order for Plaintiffs statement to be admissible, the statements of both Ms. Grandjean and the OCRC investigator must either be found not to be hearsay or be found to fall within an exception to the hearsay rule. Hunters Intern. Mfg. v. Christiana Metals Corp., 561 F.Supp. 614, 617 (E.D.Mich.1982), aff'd 725 F.2d 683 (6th Cir.1983); see Fed.R.Evid. 805. If the two statements cannot be so characterized, then Plaintiffs statement is hearsay which cannot be considered in ruling upon Defendant’s Motion for Summary Judgment. Fed.R.Civ.P. 56(e); Adickes v. Kress & Co., 398 U.S. 144, 159 & n. 19, 90 S.Ct. 1598, 1609 & n. 19, 26 L.Ed.2d 142 (1970).

Pursuant to Fed.R.Evid. 801(d)(2)(D), Dalma Grandjean’s statements to the OCRC investigator could be found not to be hearsay. Plaintiff offers these statements against Defendant. Ms. Grandjean, an agent of Defendant, made these remarks during her employment by Defendant. Her comments about Plaintiff’s application for employment would fall within the scope of her duties as Executive Director. Such statements, then, would not be hearsay.

A similar rationale does not embrace the OCRC investigator’s alleged recounting to Plaintiff of Dalma Grandjean’s remarks; such a recounting of Ms. Grand-jean’s statements would be hearsay, offered for the truth of said statements. Nor do either of the potentially relevant exceptions to the hearsay rule appear applicable. Fed.R.Evid. 803(1) excludes a declarant’s present sense impression from the operation of the hearsay rule. To come within this hearsay exception, a statement describing an event must be made while the declarant was perceiving the event, or immediately thereafter. The requirement that the statement be made contemporaneously, or nearly so, with perception of the event is the basis of the belief that such a statement is trustworthy. 4 Weinstein and Berger, Weinstein’s Evidence, ¶ 803(1)[01]. There is nothing in the record to indicate that the OCRC investigator, on each of four separate occasions, repeated Ms. Grandjean’s statements to Plaintiff immediately or almost immediately after Ms. Grandjean had made those statements to him. Without a reliable indication as to the time frame involved, Rule 803(1) cannot cover the statements of the OCRC investigator to Plaintiff.

Fed.R.Evid. 803(3) provides the following exception to the hearsay rule;

Then existing mental, emotional, or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of the declarant’s will.

There is no indication in Plaintiff’s deposition that the OCRC investigator recounted Ms. Grandjean’s statements in order to explain his (the investigator’s) intent to rely upon those statements in reaching a conclusion upon the merits of Plaintiff’s OCRC complaint. Nor can Ms. Grandjean’s statement somehow be taken as an indication of the OCRC investigator’s own mental feelings about Plaintiff’s allegations of discrimination. The final phrase of Rule 803(3), moreover, was designed to preclude admission of the OCRC investigator’s statement in order to prove the contents of his conversation with Ms. Grandjean. Marshall v. Commonwealth Aquarium, 611 F.2d 1, 3-5 (1st Cir.1979). Thus, again, the OCRC investigator’s remarks to Plaintiff, as recounted by Plaintiff in his deposition, are hearsay not covered by any exception. As such, they cannot be considered herein.

Plaintiff also alleged in his deposition that an inference of discrimination is raised by Defendant’s failure to employ any handicapped individuals. (Pridemore deposition, p. 72, 74). This statement, unsupported by any figures or other evidence, is also insufficient to create a genuine factual dispute herein. Even if gross statistical disparities would be sufficient alone to constitute prima facie evidence of a pattern or practice of handicap discrimination, see Teamsters v. United States, 431 U.S. 324, 340 n. 20, 97 S.Ct. 1843, 1856 n. 20, 52 L.Ed.2d 396 (1977), there has been no such showing by Plaintiff in this case.

For the reasons aforesaid, Defendant’s Motion for Summary Judgment (Doe. # 15) is sustained. As Plaintiff did ultimately provide the medical authorizations sought by Defendant, Defendant’s Motion to Dismiss and Alternatively, for Sanctions, is moot, as is Plaintiff’s Motion to Vacate Discovery Order. (Docs. # 10, 11). Plaintiff’s Motions for Default Judgment (Docs. # 16, 17) are overruled. The Court cannot agree that default judgment against Defendant is warranted by virtue of its delay of several days, due to confusion of this case with another filed by Plaintiff, in filing its Answer. Nor does this Court agree that default judgment is warranted due to the delay in Defendant’s identification of its witnesses.

Based on the reasons aforesaid, judgment is entered in favor of Defendant and against the Plaintiff herein.

The above captioned cause is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.

      . Dalma Grandjean, Executive Director of Defendant, states in her affidavit that this EEO form, as executed by Plaintiff, has been lost. (Doc. # 15, Affidavit of Dalma Grandjean, ¶ 5). Ms. Grandjean’s recollection is that Plaintiffs EEO form included roughly the following notation: "I may be mentally handicapped, but am not sure.” Id. For purposes of Defendant’s Motion for Summary Judgment, the Court accepts Plaintiff's version of the notation on the EEO form as the best approximation of what the form indicated. A sample EEO form is attached as Exhibit 1 to Ms. Grandjean’s affidavit.

      . 29 U.S.C. § 794 provides as follows:
      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 or under any program or activity conducted by any Executive agency or by the United States Postal Service. The head of each such agency shall promulgate such regulátions as may be necessary to carry out the amendments to this section made by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978. Copies of any proposed regulation shall be submitted to appropriate authorizing committees of the Congress, and such regulation may take effect no earlier than the thirtieth day after the date on which such regulation is so submitted to such committees.

      . In an angry handwritten letter dated January 23, 1984, written after Plaintiff had filed a charge with the OCRC, Plaintiff declared to Defendant that he suffered from cerebral palsy. (Pridemore deposition, Exh. B).

      . The Court refers to this exchange between Defendant’s counsel and Plaintiff during Plaintiffs deposition:
      Q. And it’s your claim that Dayton Legal Aid Society discriminated against you because you had cerebral palsy. Is that correct?
      A. Yes, on the basis of handicaps.
      Q. Any other handicap?
      A. Well, I would say also learning disabilities qualifies as a handicap. Whether I have any problems with psychiatric, it would probably be from the stigma associated with prior treatments. I don't find that really too much of a handicap at present.
      (Pridemore deposition, p. 70, lines 2-12).

      . The legislative history of 29 U.S.C. § 706(7)(B)(iii) reveals that this test for a "handicapped individual” was intended to cover persons believed to suffer from a condition which they did not in fact have, or persons with a mental or physical condition which did not substantially limit their major life activities, but who were believed to be so limited by their condition. S.Rep. No. 93-1297, 93rd Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Adm. News at 6373, 6389-6390. Neither Plaintiffs notation on his EEO form nor his threat of an OCRC handicap charge during his final telephone call to Defendant create a material factual question as to the latter part of the test, that is, whether Defendant erroneously believed that Plaintiff suffered from a condition of cerebral palsy which substantially limited his major life activities. Plaintiff makes no claim that Defendant erroneously perceived him as having a condition which he did not have, but rather that Defendant took action against him on the basis of his condition of cerebral palsy.

      . Plaintiff seems to suggest in his deposition that he might have communicated the existence of his learning disability to Defendant by virtue of his indication on the Defendant's EEO form that he was handicapped under EEOC guidelines. (Pridemore deposition, p. 71). This Court cannot accept that such a notation by Plaintiff on the EEO form, without more, is sufficient to raise a genuine issue of material fact that Defendant not only perceived Plaintiff as suffering from a learning disability, but as suffering from a learning disability which substantially limited one or more of his major life activities.

      . The legislative history of Section 706(7)(B)(ii) reveals Congress’ intent that the protection of Section 504 be extended to those individuals with a record of a substantially limiting impairment, even if the individual could be shown to have recovered in whole or in part from that handicapping condition. S.Rep. 93-1297, 93rd Cong., 2d Session., reprinted in 1974 U.S.Code Cong. & Adm.News 6373, 6388.

      . Plaintiff states that Dalma Grandjean made four false statements to the OCRC: (1) that Plaintiffs application was not timely submitted; (2) that Plaintiff had not indicated on the EEO form that he was handicapped; (3) that Plaintiffs writing samples were of poor quality; and (4) that Plaintiff’s resume was not current. (Pridemore deposition, p. 48-49).


text:
    George William PRIDEMORE, Plaintiff, v. RURAL LEGAL AID SOCIETY OF WEST CENTRAL OHIO, Defendant.
    No. C-3-84-754.
    United States District Court, S.D. Ohio, W.D.
    Nov. 19, 1985.

      George Pridemore, Middletown, Ohio, pro se.
    Neil F. Freund, Jane M. Lynch, Dayton, Ohio, for defendant.
   DECISION AND ENTRY GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (DOC # 20); PLAINTIFF’S MOTION TO RECUSE (DOC. #19) OVERRULED; PLAINTIFFS MOTION FOR SUMMARY JUDGMENT UNTIMELY FILED AND NOT RULED UPON (DOC. # 23); OTHER MOTIONS (DOCS. # 15, 16) DEEMED MOOT; JUDGMENT TO DEFENDANT AND AGAINST PLAINTIFF; TERMINATION ENTRY

RICE, District Judge.

This case comes before the Court for resolution of the Motion for Summary Judgment filed on June 21, 1985 by Defendant Rural Legal Aid Society of West Central Ohio (RLAS) (Doc. # 20). Plaintiff, a lawyer licensed to practice law in the State of Ohio, who is representing himself in this action, filed a pleading styled “Plaintiff’s Motion for Summary Judgment and Motion Contra Defendant’s Motion for Summary Judgment” on August 14, 1985 (Doc. # 23).

To the extent that Plaintiff's August 14th filing sought to contest Defendant’s motion, it was filed approximately 29 days late. To the extent that Plaintiff sought to assert a Motion for Summary Judgment, said filing came nearly two months after the June 24, 1985 motions cut-off date in this case. See Preliminary Pretrial Conference Order (Doc. # 6). In the interest of giving fair consideration to Defendant’s Motion for Summary Judgment, Plaintiff’s August 14th filing has been considered as a memorandum contra Defendant’s Motion for Summary Judgment, despite its untimely filing. Defendant’s Reply Memorandum has also been considered (Doc. # 24). As Plaintiff did not seek leave of this Court to file an untimely Motion for Summary Judgment, Plaintiff's August 14th memorandum has not been treated as a Motion for Summary Judgment by the Court, and the Court makes no ruling upon any such request for relief by Plaintiff.

I. Plaintiffs Claim of Handicap Discrimination by Defendant on the Basis of Plaintiff s Cerebral Palsy.

(A) Facts

Plaintiff, as mentioned supra, is a lawyer. He contacted Defendant, through a letter and resume, about the possibility of employment in late 1982 or early 1983. (Pridemore Deposition, p. 38). The record reveals that Defendant, faced with an imminent staff attorney vacancy in the summer of 1983, decided to hire an interim staff attorney to serve until funds for the position ran out at the end of the year. Applications were solicited in the August 1, 1983 edition of the Ohio Bar Association Reports. Letters were sent to lawyers, including Plaintiff, who had submitted unsolicited resumes during the preceding year. Defendant’s letter to Plaintiff, asking him to interview for the position if he remained interested, contained a correct address, but an inaccurate zip code. Plaintiff was interviewed by Defendant for a position of staff attorney on August 8, 1983, and submitted a seven-page letter to members of Defendant’s interview committee regarding his application. (Pridemore deposition, Exh. 4). Plaintiff was not offered the job. Plaintiff alleges in his Complaint that Defendant denied him employment solely on the basis of his condition of cerebral palsy. He charges Defendant with handicap discrimination in violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (West Supp.1976-84).

(B) Legal Analysis

In Jasany v. United States Postal Service, 755 F.2d 1244, 1249-50 & n. 5 (6th Cir.1985), the Sixth Circuit quoted with approval the test for claims of handicap discrimination outlined by the Tenth Circuit in Pushkin v. Regents of University of Colorado, 658 F.2d 1372 (10th Cir.1981). In Pushkin, the first two steps of the method of evaluating Title VII claims set forth by the Supreme Court in cases such as McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1972), were adapted to cases of handicap discrimination as follows:

(1) The plaintiff must establish a prima facie case by showing that he was an otherwise qualified handicapped person apart from his handicap, and was rejected under circumstances which give rise to the inference that his rejection was based solely on his handicap;
(2) Once plaintiff establishes his prima facie case, defendants have the burden of going forward and proving that plaintiff was not an otherwise qualified handicapped person, that is one who is able to meet all of the program’s requirements in spite o/his handicap, or that his rejection from the program was for reasons other than his handicap____

755 F.2d at 1250 n. 5.

As set forth in Jasany, the first prong of Plaintiff’s prima facie case of handicap discrimination requires that he be a member of the class of handicapped persons protected by Section 504. The relevant statutory definition is contained in 29 U.S.C. § 706(7)(B), which provides that a “handicapped individual” 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.

The “major life activities” referred to in Section 706(7)(B) are in turn defined in 45 C.F.R. § 84.3(j)(2)(ii) as “functions, such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.”

Plaintiff’s cerebral palsy was first diagnosed by a physician in approximately November, 1984. (Pridemore deposition, p. 72). Plaintiff explains, in his August 14th memorandum, the impact of this condition upon his muscular control. (Doc. #23). Plaintiff’s condition causes him to have poor control over his ocular muscles, which he says limits his ability to read and to make sustained eye contact. He also states in his memorandum that he has speech defects due to his cerebral palsy, but his speech can be understood by listeners. After careful scrutiny of the record, the Court concludes that summary judgment must be entered against Plaintiff on the basis that his condition of cerebral palsy does not render him a “handicapped individual” within the meaning of 29 U.S.C. § 706(7)(B).

While the Court in no way seeks to denigrate Plaintiff’s condition of cerebral palsy, 29 U.S.C. § 706(7)(B)(i) requires that an impairment substantially limit a major life activity in order for a person to qualify as a “handicapped individual.” Jasany, 755 F.2d at 1248. There is no genuine issue of material fact on this record as to the absence of such a substantial limitation upon Plaintiff’s major life activities by virtue of his cerebral palsy. Plaintiff explained in his deposition that he had been diagnosed as having a “borderline” case of cerebral palsy. (Pridemore deposition, p. 72). He further explained that, due to the mildness of his condition, his cerebral palsy can be detected only with the use of sophisticated diagnostic medical equipment. (Pridemore deposition, p. 71). To the extent that Plaintiff’s cerebral palsy affects his reading and speaking abilities, not only can the level of limitation not be considered substantial, but Plaintiff states in his August 14th memorandum that any such reading or speaking difficulties do not in any way interfere with his ability to practice law. (Doc. # 23). Clearly, then, these two major life activities of Plaintiff cannot be found to be substantially limited by his borderline cerebral palsy. Nor are there any indications in the record as to any other major life activities which can be found to be substantially limited.

Under 29 U.S.C. § 706(7)(B)(ii), a person who has a record of an impairment which substantially limited one or more of his major life activities qualifies as a “handicapped individual.” This subsection extends the protection of Section 504 to individuals who have recovered in whole or in part from a handicapping condition and to those individuals who have been classified at one point as handicapped. S.Rep. No. 93-1297, 93rd Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad.News 6373, 6388-89. As Plaintiffs cerebral palsy was not diagnosed until late 1984, at which time he had already completed law school and the events in this case had already occurred, he has no such record of cerebral palsy.

Finally, Plaintiff could qualify as a “handicapped individual” under 29 U.S.C. § 706(7)(B)(iii) if members of Defendant’s interview committee could be shown to have regarded Plaintiff as suffering from a condition of cerebral palsy which substantially limited one or more of his major life activities. Such a perception by Defendant would allow Plaintiff to claim the protection of Section 504, even if his condition did not substantially limit his major life activity or activities. S.Rep. No. 93-1297, 93rd Cong., 2d Sess., reprinted in 1974 U.S. Code Cong. & Ad.News 6373, 6388-89. The Court finds Defendant to have carried its burden as to the absence of material factual dispute on this issue. Plaintiff has not created a genuine issue of material fact as to whether Defendant knew that Plaintiff suffered from cerebral palsy and that Defendant erroneously believed that this condition was a substantially limiting impairment within the meaning of 29 U.S.C. § 706(7)(B)(iii).

Plaintiff stated at his deposition that he did not mention his cerebral palsy to the members of Defendant’s interview committee who met with him on August 8, 1983. (Pridemore deposition, p. 101-03, 123). Plaintiff also testified that a lay person would not know that Plaintiff suffered from cerebral palsy after observing his outward appearance and demeanor. Id. at 123-24. The only written document which Plaintiff believes could have informed Defendant as to his cerebral palsy was the seven-page letter which Plaintiff provided to members of Defendant’s interview committee at the time of his interview. Id. at 105-07. The letter did not state that Plaintiff had cerebral palsy. Plaintiff’s contention at his deposition was that his cerebral palsy could have been inferred from the statements in the letter. Id. at 105-06, 123-25. The first of those statements provided as follows: “I was born, after a difficult delivery, with miniscule brain damage to the perceptual and sensory-motor areas of the brain in 1952.” (Pridemore deposition, Exh. 4 at 1). The second of those statements would be the final sentence of the letter, which admonished: “Whatever your decision here today, I hope you do not turn me down in violation of the Rehabilitation Act of 1973.” Id. at 7.

The Court cannot agree that these statements in Plaintiff’s letter raise a genuine issue as to Defendant's knowledge of Plaintiff’s cerebral palsy. The second statement is devoid of any substantive content. As for the first statement, the Court notes Plaintiff’s own admission that a lay person would not be aware that the type of infantile brain damage alluded to by Plaintiff would indicate a diagnosis of cerebral palsy. (Pridemore deposition, p. 125).

Having considered all three subsections of 29 U.S.C. § 706(7)(B), the Court finds no factual issues to exist or to have been created with respect to Plaintiffs qualification as a “handicapped individual” by virtue of his cerebral palsy. Plaintiff has failed to demonstrate a genuine issue of material fact on his qualifying as such a “handicapped individual.” Consequently, summary judgment must be entered against Plaintiff and in favor of Defendant, on the grounds that Plaintiff cannot establish a prima facie case of handicap discrimination.

II. Other Motions Remaining for Disposition.

As is apparent by the very fact of this ruling, Plaintiffs motion for recusal, contained in his final pretrial order (Doc. #21), is overruled. Plaintiffs displeasure with this Court stems from the earlier opinion of this Court in Moxley v. Vernot, 555 F.Supp. 554 (S.D.Ohio 1982). The Court is compelled to note that said decision accurately reflected and conformed with existing federal law then on point at the time it was rendered in 1982. Simply because the United States Supreme Court took an opposing point of view in a later unrelated opinion does not mean that the instant Court is irretrievably prejudiced in ruling in this case. Moreover, the Court cannot accept Plaintiffs contention that scheduling deadlines have been manipulated in order to render difficult Plaintiffs pursuit of this litigation. This Court’s scheduling deadlines not only impact equally upon both sides to this litigation, but also reflect this Court’s standard practice followed in all cases upon its docket.

As Plaintiff did provide Defendant with medical authorizations to obtain certain records, Plaintiff’s motion to vacate discovery (Doe. # 15) is moot. Defendant’s motion to dismiss or, alternatively for sanctions, based on the same discovery dispute (Doc. # 16), is also moot.

III. Whether, Even Assuming Plaintiff to be a “Handicapped Individual, ” Plaintiff Could Establish a Prima Facie Case of Handicap Discrimination.

The Court notes that, as a result of its decision in Part I of this opinion that Plaintiff does not qualify as a “handicapped individual,” Part III of this decision contains only the dicta of this Court.

The Court’s observations in the instant Part III are prompted by Plaintiff’s statement in his deposition that he has two handicaps other than his cerebral palsy: a learning disability and a history of treatment for mental depression. (Pridemore deposition, p. 63, 73, 87, 115-16). As noted in Part I, Plaintiff’s Complaint alleges cerebral palsy as the handicap which served as the sole basis for Defendant’s discrimination against him. No other handicap is mentioned. Plaintiff reiterated in a subsequent motion that “cerebral palsy is the sole handicap condition alleged in the complaint.” (Doc. #15). Plaintiffs August 14th memorandum only reinforces his total focus upon cerebral palsy and its symptoms. (Doc. #23). Furthermore, Plaintiff is a lawyer, unlike most pro se litigants. Lawyers are expected to bring directly before the Court all those conditions and circumstances which are relevant in a given case. Plaintiff plainly has not brought before the Court any allegations concerning his mental depression and his learning disability. This being said, the Court nonetheless believes that, in the interests of justice, brief consideration should be given to these two additional handicapping conditions. Part III of this opinion contains the Court’s conclusion that, even with these additional handicap conditions, Plaintiff would not be found to state a prima facie case of handicap discrimination.

(1) Plaintiffs Possible Membership in the Protected Class.

Having scrutinized Plaintiff’s discussion in his deposition of his learning disability and of his mental illness, the Court believes that Plaintiff’s history of treatment for mental depression could render him a “handicapped individual” under 29 U.S.C. § 706(7)(B). Plaintiff was hospitalized for mental depression at the Institute of Psychiatry at Northwestern Memorial Hospital in Chicago in the summer of 1978. (Pridemore deposition, p. 79). He was re-admitted over the Christmas holidays in December, 1978. Plaintiff withdrew from law school for the spring semester of 1979, feeling that he could not complete his education at that time. (Pridemore deposition, p. 80). He was admitted to the Illinois State Psychiatric Institute for a week in early 1979, and then spent eighty-three or so days again at the Institute of Psychiatry at Northwestern Memorial Hospital in mid-1979. While Plaintiff does not discuss his ability to function during this period in 1978-79, the Court believes that such a history of psychiatric treatment could indicate that Plaintiff’s depression substantially limited a major activity during this period, namely, his ability to care for himself. Cf. Doe v. New York University, 666 F.2d 761, 775 (2d Cir.1981). Plaintiff had a record of such an impairment when he applied for a position with Defendant, and this history of depression was both mentioned in the letter submitted at the interview as well as discussed verbally at his interview. (Pridemore deposition, p. 101-103).

As for the sensory integration dysfunction claimed by Plaintiff in his deposition, certain exhibits attached to Plaintiff’s August 14th memorandum, none of which are properly authenticated as required by Fed. R.Civ.P. 56, explain the nature of this dysfunction. His learning disability apparently involves some rather subtle difficulties with balance, coordination and fine and gross motor development. There is no indication whatsoever that this dysfunction, which was diagnosed in the spring of 1980 after Plaintiff’s completion of law school, substantially limits one or more of Plaintiff’s major life activities, within the meaning of 29 U.S.C. § 706(7)(B)(i). Likewise, there is no record of any period during which this dysfunction so substantially limited Plaintiff, within the meaning of 29 U.S.C. § 706(7)(B)(ii).

The Court believes, however, that a genuine issue of material fact would exist under 29 U.S.C. § 706(7)(B)(iii) as to whether Defendant regarded Plaintiff as suffering from a learning disability which substantially limited his major life activity or activities, even if his condition did not in fact have such an impact upon his activities. Defendant had knowledge of Plaintiff’s sensory integration dysfunction due to Plaintiff’s mention of this dysfunction, and the therapy which he has undergone for it, in the letter submitted to Defendant at his interview. (Pridemore deposition, Exh. 3). This Court could not, had Plaintiff pled his learning disability as the basis for Defendant’s discrimination against him, conclude that no genuine issue of material fact existed as to whether Defendant regarded Plaintiff as suffering from a substantially limiting learning disability.

In summary, had Plaintiff properly presented, as bases for his claim, his handicaps of a history of mental illness and a learning disability, the Court would find him to be a “handicapped individual” on the basis of his record of mental illness and would find a genuine issue of material fact as to whether Defendant perceived Plaintiff as having a substantially limiting learning disability.

(2) Whether Plaintiff Could be Found to be “Otherwise Qualified.

Assuming Plaintiff to be a “handicapped individual” due to his record of mental illness or to Defendant’s perception of his learning disability, the second component of Plaintiff’s prima facie case under Section 504 would require consideration of whether Plaintiff was “otherwise qualified” for Defendant’s staff attorney position. The Supreme Court has defined an “otherwise qualified handicapped individual” as “one who is able to meet all of a program’s requirements in spite of his handicap,” provided that none of those requirements are “unreasonable and discriminatory.” Southeastern Community College v. Davis, 442 U.S. 397, 406, 412-413, 99 S.Ct. 2361, 2367, 2370, 60 L.Ed.2d 980 (1979). Regulations promulgated by the Department of Health and Human Services define a “qualified handicapped person” as one “who, with reasonable accommodation, can perform the essential functions of the job in question.” 45 C.F.R. § 84.3(k)(1).

Defendant contends that Plaintiff was not selected for the interim staff attorney position because, wholly apart from any handicap claimed by him, he lacked certain attributes believed to mark a successful candidate. Defendant’s Executive Director, Roy Martin, avers that Plaintiff did not demonstrate effective communication skills, nor did he establish an ability to exercise sound professional judgment. (Martin Affidavit, Doc. # 19, Exh. A, 1113, 14, 15). Martin bases his conclusion upon Plaintiff’s performance at his interview and upon the contents of a seven-page letter which Plaintiff presented to members of Defendant’s interview committee during his interview. (Id. at U 8, 13, 14, 15). Martin also states that Plaintiff’s resume reflected his unemployment from 1981 through 1983 and a lack of experience in the Ohio courts. (Id. at 1110). For these reasons, Defendant’s position is that, despite the fact that Plaintiff had a law degree from an accredited institution and that he had passed the Ohio bar examination, Plaintiff was not “otherwise qualified” for their interim staff attorney position.

The Court agrees that the organizational and intellectual demands of the position of staff attorney could be considered in the determination of whether a handicapped professional is “otherwise qualified.” See Pushkin v. Regents of University of Colorado, 658 F.2d at 1385-90 (consideration of whether a psychiatrist, who suffered from cerebral palsy, was “otherwise qualified” included not only whether he possessed necessary academic degrees, but whether he possessed the experience, intellect and emotional disposition to be a successful psychiatrist); see also Upshur v. Love, 474 F.Supp. 332, 342 (N.D.Cal. 1979) (blind candidate for position as school administrator found not “otherwise qualified” due to his lack of experience and familiarity with school administration.) The skills and attributes which Defendant put forth in its definition of the interim staff attorney it sought to hire appear no more arbitrary and discriminatory than those characteristics contemplated at trial by the Pushkin and Upshur courts.

This being said, had the Court in fact considered whether Plaintiff was handicapped on the basis of his record of mental illness or due to Defendant’s perception of his learning disability, it would have been forced to find that a genuine issue of material fact existed as to whether Plaintiff was “otherwise qualified.” The Court does not believe that this issue could be resolved against Plaintiff on summary judgment, given the dependence of this issue upon Defendant’s evaluation of Plaintiff’s credentials and upon Defendant’s good faith but subjective requirements for the position which it sought to fill. Thus, to complete its treatment of the record, the Court concludes that, had mental illness or a learning disability been presented as a basis for discrimination, which they were not, the Court would have found a genuine issue of material fact to exist as to whether Plaintiff was “otherwise qualified.”

(3) Whether Plaintiff Would be Found to Have Been Rejected Under Circumstances Giving Rise to an Inference of Handicap Discrimination.

Assuming Plaintiff to have been an “otherwise qualified handicapped individual apart from his handicap,” the final prong of Plaintiffs prima facie case would require consideration of whether Plaintiff was rejected under circumstances giving rise to the inference that his rejection was based solely on his handicap(s). Jasany, 755 F.2d at 1250. Had this consideration been put forward to the Court, it would have concluded that Defendant has established the absence of a genuine issue as to any material facts susceptible of an inference that Plaintiff was rejected by Defendant solely on the basis of his record of mental illness or a perception that he was substantially limited due to his learning disability. Plaintiff has failed to create a genuine issue as to any such facts.

As noted supra in Part I, Defendant’s letter to Plaintiff, asking him to interview for the position if he remained interested, contained a correct address, but an inaccurate zip code. Plaintiff asserts that Roy Martin, or another staff person employed by Defendant, intentionally placed an inaccurate zip code on Plaintiff’s letter in order to delay its arrival. Plaintiff’s belief is that the inaccurate zip code, the short period of time between the mailing date of the letter and the scheduled interview date, and Defendant’s failure to ask Plaintiff to bring additional materials or information with him to the interview indicate that Defendant did not in good faith interview Plaintiff due to Plaintiff’s status as a handicapped individual. (Pridemore deposition, p. 93-98). Plaintiff also asserts that Roy Martin’s knowledge of Plaintiff’s threat in August, 1983, to sue the Dayton Legal Aid Society for handicap discrimination, is an additional basis for his claim that circumstances of his treatment by Defendant raise the inference that he was rejected solely on the basis of his handicap.

The issue is not whether Plaintiff agrees with the method in which Defendant attempted to meet its immediate need for a staff attorney, but whether Defendant’s interview process raises the inference that Plaintiff was rejected solely on the basis of his handicap of past mental illness. The Court cannot agree with Plaintiff’s inference of discrimination by virtue of an inaccurate zip code. It is difficult to accept that Defendant would have cloaked its discriminatory animus by scheduling an interview for Plaintiff and mailing him a letter containing the interview date, all the while gambling that a deliberately inaccurate zip code would delay the arrival of the letter and inalterably stymie Plaintiff’s pursuit of employment with Defendant. This delay, moreover, had no impact upon Plaintiff’s pursuit of employment with Defendant. As Plaintiff had called Defendant’s office prior to the scheduled interview date of August 8, 1983, he was informed of Defendant’s request to interview him during that phone conversation. The inaccurate zip code thus did not impede Plaintiff’s ability to interview for the position of staff attorney, which interview took place as scheduled on August 8, 1983.

Plaintiff’s implicit allegation that he, alone, of the pool of potential job applicants was told not to bring additional written materials to the interview is unsupported by any evidence. Plaintiff’s belief is also that such restrictions made evaluation of a candidate’s qualifications impossible. Again, the Court cannot agree that this constraint raises the inference that Plaintiff’s rejection by Defendant was based solely on the basis of his handicap. There is no indication on Plaintiff’s resume, which Defendant had kept in its files, of his record of mental illness or his sensory integration dysfunction. (Pridemore deposition, Exh. 2). Nor is there any indication that Defendant otherwise knew of Plaintiff’s possible conditions of handicap prior to the interview and specifically sought to arrange a pro forma interview by instructing Plaintiff not to bring other materials to the interview with him which would further explain or develop his credentials.

Plaintiff admits that his assertion of Martin’s knowledge of Plaintiff’s threat to bring a handicap discrimination claim against another potential legal aid employer is simply the product of an inference which he (Plaintiff) drew from the structure and timing of his interview with Defendant. Plaintiff acknowledges that he has no specific knowledge that Martin possessed any such information of the threat of such other action against the Dayton Legal Aid Society. (Pridemore deposition, p. 41-43, 93-94,113). Plaintiff’s contention that he has been “unofficially blacklisted by all legal aid programs in Ohio” is, again, conclusory and without other support in the record. (Doe. # 23).

For the reasons aforesaid, the Court concludes that no facts have been put forward or contested which would allow an inference that Defendant’s rejection of Plaintiff was based solely on his record of mental illness or perceived learning disability handicap. Thus, even had Plaintiff asserted these handicaps, which he has not, Plaintiff would not have established the necessary genuine issue of material fact susceptible of the inference that he was rejected solely on the basis of his handicap(s). As such, Plaintiff’s prima facie case would have failed, even had Plaintiff put forward to the Court these conditions, and Defendant would have been entitled to summary judgment.

Having engaged in the lengthy dicta of Part III, as well as having ruled upon the pending motions in this case in Parts I and II, the Court believes the record to have been fully addressed.

The instant case is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.

      . 29 U.S.C. § 794 provides as follows:
      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 or under any program or activity conducted by any Executive agency or by the United States Postal Service. The head of each such agency shall promulgate such regulations as may be necessary to carry out the amendments to this section made by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978. Copies of any proposed regulation shall be submitted to appropriate authorizing committees of the Congress, and such regulation may take effect no earlier than the thirtieth day after the date on which such regulation is so submitted to such committees.

      . As Plaintiff states that a physician did not diagnose his cerebral palsy until 1984, he would have had to base any claim of this condition either on his own speculation or upon sources not disclosed in his deposition.

      . The Court notes that Plaintiff makes no claim in his deposition that he currently suffers from a handicap of mental illness, and the Court does not consider same.'

      . As noted supra in Part I, the legislative history of Section 706(7)(B)(ii) reveals Congress’ intent that the protection of Section 504 be extended to those individuals with a record of a substantially limiting impairment, even if the individual could be shown to have recovered in whole or in part from that handicapping condition. S.Rep. 93-1297, 93rd Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Adm.News 6363, 6388.

      . Plaintiff recounts his conversation with Roy Martin as follows in his August 14, 1983 memorandum: “Mr. Roy Martin told plaintiff, 'We don’t want you to bring anything to the interview — no transcripts, no references, no writing samples, no letters of recommendations, nothing.’” (Doc. #23).