The opinion
KRAVITCH, Circuit Judge,
dissenting:
Respectfully I dissent. In the complex circumstances that led to the release of appellant from his job as a firefighter the legal issue is neither whether the employer had good intentions and was trying to help him in his struggle with HIV and, ultimately, AIDS, nor that the fire department did not know what to do with him. Nor is the court’s impression that appellant’s pursuit of his legal rights made him a “lawsuit promoting” person relevant, except as it affected his credibility at trial on some minor points. 1 The issue is causation: did his condition cause or result in his dismissal from his job? A full review of the trial record shows that his condition was at least a necessary cause of his dismissal and may also be viewed as the primary or sole cause of his dismissal. He would not have been dismissed but for his medical condition, and for this reason he is entitled to relief.
The Rehabilitation Act forbids discrimination against otherwise qualified people in federally funded programs “solely by reason of her or his handicap.” 29 U.S.C. § 794 (a). This does not mean, however, that if the employer can articulate any reason for discriminatory behavior other than handicap there is no claim under the statute. Cases interpreting the statute have held that if an employer discriminates on the basis of the handicap, an employee may have a valid complaint. See Reynolds v. Brock, 815 F.2d 571, 574 (9th Cir.1987); Pushkin v. Regents of Univ. of Colorado, *1184 658 F.2d 1372 , 1386-87 (10th Cir.1981). In cases in which a legitimate motive is mixed with an illegitimate (i.e., handicap-based) motive, the inquiry is whether the illegitimate motive was the most significant factor in or was a "but for” cause of discriminatory conduct. See Ross v. Beaumont Hospital, 687 F.Supp. 1115, 1118, 1120 (E.D.Mich.1988); Sanders by Sanders v. Marquette Public Schools, 561 F.Supp. 1361, 1372 (W.D.Mich.1983); see also Pushkin, 658 F.2d at 1387 (plaintiff may prove “reasons articulated for the rejection other than the handicap encompass unjustified consideration of the handicap itself”); Lawson, AIDS, Astrology and Arline: Towards A Causal Interpretation of Section 50k, 17 Hofstra L.Rev. 237, 259, 265 (1989) (recognizing “but for” causation standard, despite the word “solely”). In this respect, the causation standard of the Rehabilitation Act is similar, although not identical, to other federal civil rights statutes. See 41 C.F.R. § 101-8.312 (Title VI procedures applicable to Rehabilitation Act); 2 see also Prewitt v. United States Postal Service, 662 F.2d 292, 309-310 (5th Cir. Unit A 1981) (applying Title VII proof model to handicap discrimination). Therefore, the Rehabilitation Act’s use of the word “solely,” upon which the district court and majority opinions rely, does not mean any explanation for discriminatory action will shield the defendant from liability. Only a legitimate reason that outweighs or nullifies the effect of an illegitimate reason based on handicap will defeat a claim.
The Supreme Court repeatedly has characterized the federal regulations designed to implement the Rehabilitation Act as “an important source of guidance on the meaning of § 504.” See Alexander v. Choate, 469 U.S. 287 , 304 n. 24, 105 S.Ct. 712 , 722 n. 24, 83 L.Ed.2d 661 (1985) (quoted in School Bd. of Nassau County v. Arline, 480 U.S. 273, 279 , 107 S.Ct. 1123, 1127 , 94 L.Ed.2d 307 (1987) and in Traynor v. Turnage, 485 U.S. 535 , 549 n. 10, 108 S.Ct. 1372 , 1382 n. 10, 99 L.Ed.2d 618 (1988)). In this case the relevant federal regulations are those prohibiting discrimination on the basis of handicap in employment. 41 C.F.R. § 101-8.305 . Throughout these regulations, the word “solely” is not used to describe causation; discrimination is forbidden “on the basis of” or “because of” handicap. Id. at § 101-8.305(a), (b). The regulations forbid limiting, segregating, or classifying employees in a way that adversely affects their opportunities or status because of handicap. Id. These prohibitions apply to all aspects of employment, including terminations, job assignments and leaves of absence. Id. at § 101-8.305(d)(2), (4), (5), (9). These regulations are not mere technical suggestions, but carry the authority of law traditionally afforded federal regulations designed to implement a statute.
In failing to use the Rehabilitation Act causation standard outlined above, the district court erred as a matter of law. In its oral ruling from the bench, the district court repeatedly stated that the supervisors at the fire department were trying to help appellant, and thus there was no showing of intentional discrimination. Dist. ct. ord. at 31, 49, 50. In fact, the court called this its “ultimate and, perhaps, most important finding” in its denial of the claim. Id. at 50. However, intentional discrimination is not required to make out a claim under the statute, as the Supreme Court and lower courts have unequivocally held. See Alexander v. Choate, 469 U.S. 287, 294-97 , 105 S.Ct. 712, 716-18 , 83 L.Ed.2d 661 (1985); Georgia State Conf. of Branches of NAACP v. Georgia, 775 F.2d 1403, 1427 (11th Cir.1985); Pushkin, 658 F.2d at 1384; Sanders, 561 F.Supp. at *1185 1372 ; New Mexico Ass’n for Retarded Citizens v. New Mexico, 495 F.Supp. 391, 398 (D.N.M.1980), rev’d on other grounds, 678 F.2d 847 (10th Cir.1982). In the words of the Pushkin court: “Discrimination on the basis of handicap usually results from more invidious causative elements and often occurs under the guise of extending a helping hand or a mistaken, restrictive belief as to the limitations of handicapped persons.” 658 F.2d at 1385.
As the majority points out, the district court’s legal error does not preclude af-firmance on other grounds if appellant’s claim is insufficient under the proper causation standard. This requires an examination of the facts of the case, which we review under the clearly erroneous standard. It is important to bear in mind the district court’s findings on several key points. First, the district court found, as does the majority at fn. 4 supra, that appellant’s asymptomatic HIV status and his subsequent condition as a Class IV AIDS patient brought him under the definition of handicapped persons covered by the federal statute during all times relevant to this lawsuit. Dist. ct. ord. at 20; see also Martinez by and through Martinez v. School Bd. of Hillsborough County, 861 F.2d 1502, 1506 (11th Cir.1988) (AIDS a handicap under section 504); Chalk v. United States Dist. Ct, Central Dist. of Cal., 840 F.2d 701 , 709 (9th Cir.1988) (same); Doe v. Centinela Hospital, 1988 WL 81776 , at *7, 1988 U.S.Dist. LEXIS 8401, at *21 (C.D.Cal.1988) (HIV a handicap). Second, the district court found that appellant was qualified to perform full firefighting duties at the time he was reassigned to light duty in December 1987 and at the time he was fired in May 1988. 3 Dist. ct. ord. at 20, 22-23. This is supported in the record by the testimony of his treating physician, Dr. Schwartz, whom the district court specifically credited over other medical testimony. 4 In addition, as late as February or March 1989 appellant was engaged in full firefighting duties as a volunteer at another fire department and played a leading role in quelling a bridge fire on the Tallahassee River. Third, the district court found that the fire department’s conduct violated the federal regulations enforcing the statute. Dist. ct. ord. at 30, 46. The department reassigned appellant to light duty and eventually dismissed him without consulting any independent medical authorities. As the district court explained:
In ordering plaintiff to do light duty, the department did not consult medical authorities, did not take affirmative steps which plaintiff contend[s] should have been taken to ensure that discrimination on the basis of his handicap did not occur. The department did nothing_ They did not, until later, adopt a policy with reference to these diseases. They did things too late to ensure that the assignment of light duty to the plaintiff was not on the basis of his handicap.
Dist. ct. ord. at 46-47.
Finally, the district court found appellant never knowingly and intelligently waived his rights under the statute because he was initially unaware of them. 5 Only in January 1988 did he become aware that he could perform as a full firefighter and that he had a legal right to pursue that position. Appellant wanted to return to work and attempted to do so after he was fired, and *1186 he asserted his rights under the statute through his attorney first in March and then again in May 1988. 6 I agree with the district court’s factual findings on these four aspects of the case.
These findings seem to require a finding of liability under the statute. Indeed, the majority acknowledges that handicap played a role in the reassignment and subsequent dismissal. However, the majority affirms the district court’s denial of appellant’s claim because it concludes that appellant was dismissed for legitimate reasons, not “solely” on the basis of handicap. It is with this conclusion that I disagree.
A review of the record shows that the reasons furnished for dismissing appellant were insubstantial when viewed alongside the admitted consideration of his HIV/AIDS status. The initial decision to reassign him to light duty was indisputably based on handicap alone. There had not been any allegations of inadequate job performance before appellant told the department he had tested positive for HIV. What is contested is the reason for placing appellant on medical leave and his subsequent release. According to appellees, Severino was fired because of a single incident in January or February 1988 when appellant stated to his superiors that he did not want to perform certain aspects of the light duty assignment, specifically dump runs and hydrant cleaning, because he feared it would adversely affect his health. No written record was made of this incident, nor is there evidence of a specific reprimand in appellant’s personnel file, the usual practice. R5-176. There was no warning that the incident, or similar ones, would cost him his job. Appellant was placed on 90-day medical leave in February 1988. 7 Then, months later and with no intervening incidents or deliberations, appellant was summarily fired in May 1988. According to the fire chief, the department’s disciplinary regulations and practice usually entailed oral reprimand after a first offense, a written reprimand after a second, then after a third offense time off or termination. R5-124. 8 In this case, the reason for the dismissal was a single incident which resulted in only an oral reprimand, the details of which are disputed. One witness, employed at the fire department for twenty-three years, testified that he did not know of any other situation in which a superior officer gave an oral reprimand and then fired a firefighter without taking intermediate measures such as a written reprimand or suspension. R6-152. 9
Viewing the entire record, the department’s explanation does not plausibly account for the firing of a formerly satisfactory employee when compared with the admitted consideration of his handicap. Thus, to return to the causation standard outlined above, appellant would not have been fired but for his handicap. 10 His reassignment to light duty was based on handicap alone, and that reassignment placed him in an uncertain position; medical leave *1187 and dismissal were merely the extension of it. Other reasons given for the firing do not sever this chain of causation because they are not credible. Therefore appellant has made out the elements of a statutory claim. 11
I also disagree with the majority’s disposition of appellant’s claim based on the Florida Constitution. It merits discussion because it appears to provide a separate avenue of relief. The Florida Constitution “Basic Rights” section reads in part: “No person shall be deprived of any right because of race, religion or physical handicap.” Fla. Const. Art. I, Sec. 2. In one case a federal district court stated that a county employee with AIDS could bring an action based on this section. Shuttleworth v. Broward County, 639 F.Supp. 654, 660 (S.D.Fla.1986); see also Florida Paraplegic Ass’n v. Martinez, 734 F.Supp. 997 , 1006 n. 18 (S.D.Fla.1990) (paraplegics may have cause of action under Florida Constitution) (dictum); Schreiner v. McKenzie Tank Lines & Risk Management Services, Inc., 408 So.2d 711 , 713 n. 2 (Fla.App.1982) (epilepsy a handicap under Florida Constitution) (dictum). The interpretation of the constitutional provision on handicap is aided by the Florida legislature’s passage in 1989 of legislation to extend the existing state protections against AIDS-related discrimination: “Any person with or perceived as having acquired immune deficiency syndrome, acquired immune deficiency syndrome related complex, or human immunodeficiency virus shall have every protection made available to handicapped persons.” Fla.Stat. § 760.50(2). According to one commentator: “By incorporating prior handicap law, the 1989 Enactment extends state constitutional protections to those who have AIDS, ARC, HIV infection or the perception of any of these illnesses.” Waters, AIDS and the Perception of AIDS as Handicaps Under Florida Law, 17 Fla. State L.Rev. 441, 462 (1990). Thus, although there are as yet no reported cases on the point, the Florida Constitution appears to provide appellant with a cause of action provided the other requirements for recovery are met. In this case, the same facts that make out a federal cause of action appear to suffice to prevail under the Florida Constitution. A state constitution may afford greater protection than federal law provides, and in this case the Florida Constitution seems to provide at least a parallel, if not more favorable, route to recovery.
For the foregoing reasons, I respectfully dissent.
. It is also noteworthy that the district court’s finding that appellant’s condition as an AIDS patient affected his memory and rendered him less credible was unsupported by medical testimony of any kind. Dist. ct. ord. at 36.
. Some jurisdictions have explicitly endorsed the "but for” standard in Title VII cases; others have stated that liability exists if a prohibited consideration such as race was a discernible or significant factor in discriminatory conduct. See Lawson, supra, at 259 n. 100 (discussing cases); Schlei & Grossman, Employment Discrimination Law (2d ed. & 1983-88 Supp.) at 484. The responsibility to disentangle legitimate from illegitimate motives also resembles the court’s inquiry into pretextual justifications under Title VII. If a plaintiff makes a prima facie case for discrimination under Title VII and the defendant offers a non-discriminatory explanation, the court will examine the defense to see if it is pretextual. See, e.g., Moore v. Alabama State Univ., 864 F.2d 103, 105 (11th Cir.1989).
. This means appellant was "otherwise qualified” under the statute, even without any "reasonable accommodation.” The regulations provide: "A recipient [of federal funds] shall make reasonable accommodation to the known physical or mental limitations of an otherwise qualified handicapped applicant or employee unless the recipient can demonstrate that the accommodation would impose an undue hardship on the operation of its program.” 41 C.F.R. § 101-8.306 (a).
. It is also supported by the testimony of fire chief Brown:
Q: "Was there ever a time when you considered Mr. Severino could not physically do his job?”
A: “No."
R9-90.
.He wanted to do the light work. But that was not a sufficient discharge of the department’s obligation. The department was not, under the regulation, entitled to rely simply on the plaintiffs willingness to do the light work, and his preference and, indeed, insistence that he not be put back on the [firefighting] line.
Dist. ct. ord. at 47.
. Although appellees initially disputed liability based on the fact that appellant was a probationary employee, they specifically abandoned that defense in light of testimony that his probationary status had nothing to do with his dismissal.
. The term "medical leave” is evidence enough that appellant’s handicap was still uppermost in the employer's mind.
. The department’s regulations on formal corrective action, § 905, read:
Formal corrective action shall be construed to mean such action taken by Superior Officers against subordinates where actual punishment is imposed. The results of such formal action shall be made a permanent record in the Department and in the personnel file of the offending member. Formal corrective action includes, but is not limited to the following:
905.1 Written Reprimand
905.2 Suspension
905.3 Demotion
905.4 Dismissal.
Appellant’s Trial Exhibit C, at 36.
. In civil rights cases the departure from usual disciplinary procedures is evidence of pretext. Schlei & Grossman, supra, at 1314-15.
. This conclusion is reinforced by the testimony of fire chief Brown:
Q: "It is your opinion that if Mr. Severino hadn't said anything to you, he would still be working there today, if he hadn’t said anything about his HIV positivity?”
A: "Yes.”
R5-76.
. I reserve a discussion of remedies, also at issue in this case, for another occasion.