The opinion of the court was delivered by: THOMAS J. MCAVOY
Once a veteran is appointed through this process, the position that he receives is changed from a competitive class position to a noncompetitive class position. The job retention rights in a noncompetitive position are less than those of a competitive position. Therefore, a veteran appointed under CSL § 55-c has fewer job retention rights than similarly situated persons holding the same title in the competitive class.
Plaintiff is a Vietnam War veteran with post-traumatic stress disorder and a knee disability. He is also a recovering alcoholic and substance abuser. He obtained state employment through the CSL § 55-c program as a entry level Substance Abuse Specialist (SAS I) on September 28, 1989. He was permanently appointed to this position on December 4, 1989 and he received good performance evaluations for his work.
This position is also available as a competitive class job with the same job description. As just described, once plaintiff was hired for the job, the classification of his position changed from the competitive "SAS I" to the noncompetitive "SAS I (55-c)." Thus, his job retention rights were governed by CSL § 80-a which applies to noncompetitive positions rather than CSL § 80 which governs competitive positions. Ultimately, this meant that in the event of a layoff, plaintiff had no right to displace or bump a less senior SAS I in the competitive class. Thus, if a layoff occurred, he could be let go before a less senior SAS I regardless of the fact that he had worked there longer.
Such a scenario did occur on July 31, 1991 when plaintiff was laid off from his job due to a reduction in force at the Office of Alcoholism and Substance Abuse Services (OASAS). Plaintiff was laid off before two less senior competitive class employees. Thus, plaintiff claims that he was discriminated against based on his disability. He asserts that because his job retention rights are not the same as those of his coworkers in the competitive class, he has been discriminated against based on his disability. Therefore, he brings a facial challenge to the validity of CSL § 55-c which classifies employees as noncompetitive claiming that it violates § 504 of the Rehabilitation Act of 1973.
Both plaintiff and defendants have moved for summary judgment on the Rehabilitation Act claim. Defendants have also moved for dismissal of the accompanying claim under the Americans with Disabilities Act (ADA). These claims will be discussed seriatim.
A. Standard for Summary Judgment
Summary judgment is appropriate when no genuine issues of material fact exist, and thus the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). There must be more than a "metaphysical doubt as to the material facts." Delaware & H. Ry. v. Conrail, 902 F.2d 174, 178 (2d Cir. 1990), quoting, Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). All ambiguities must be weighed in favor of the nonmoving party. Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989). "Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) cert. denied, 502 U.S. 849, 112 S. Ct. 152, 116 L. Ed. 2d 117 (1991).
B. Rehabilitation Act Claim
§ 504 of the Rehabilitation Act provides that:
No otherwise qualified individual with a disability in the United States, as defined in section 706(8) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination ...