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BARTLETT v. NEW YORK STATE BD. OF LAW EXAMINERS

August 15, 1997

MARILYN J. BARTLETT, Plaintiff, against NEW YORK STATE BOARD OF LAW EXAMINERS; JAMES T. FULLER, Individually and as Executive Secretary, New York State Board of Law Examiners; JOHN E. HOLT-HARRIS, JR., Individually and as Chairman, New York State Board of Law Examiners; RICHARD J. BARTLETT, Individually and as Member, New York State Board of Law Examiners, LAURA TAYLOR SWAIN, Individually and as Member, New York State Board of Law Examiners, CHARLES T. BEECHING, JR., Individually and as Member, New York State Board of Law Examiners and IRA P. SLOANE, Individually and as Member, New York State Board of Law Examiners, Defendants.


The opinion of the court was delivered by: SOTOMAYOR

MEMORANDUM OPINION AND ORDER

 SONIA SOTOMAYOR, U.S.D.J.

 Defendants move, pursuant to Fed. R. Civ. P. 59(e) and 60(b), for amendment of the judgment or relief from the decision and order of this Court rendered on July 3, 1997 (the "Opinion"), familiarity with which is assumed. For the reasons to be discussed, defendants' motion is DENIED.

 I. The Court's Use of The EEOC Regulations Under Title I of the ADA

 A. The Appropriateness of Employing Title I Regulations Generally

 In its Opinion, the Court used the regulations promulgated by the EEOC under Title I of the Americans with Disabilities Act (the "ADA" or the "Act") to elucidate and expand upon the Court's understanding of the concept of "substantial limitation" as it relates to defining who is disabled under the Act. The Court employed the Title I regulations for this purpose even though plaintiff's claim was brought under Titles II and III of the Act, and the Department of Justice, not the EEOC, is charged with promulgating regulations pursuant to those titles. While neither party directly challenges the Court's use of the EEOC regulations and interpretive guidance, the tenor of the defendants' instant motion for reconsideration implies that the use of the Title I regulations was somehow inappropriate. *fn1" The Court disagrees for the following reasons.

 Initially, one must understand, how, if at all, regulations under Title I and Title II differ, keeping in mind that the statutory definition of "disabled" is the same for all titles of the Act and that no agency is imbued with dispositive authority to state what the term means. The only difference between the Title I regulations promulgated by the EEOC and the Title II regulations promulgated by the Justice Department is that the EEOC goes to much greater lengths to explore the concept of substantial limitation, particularly as that concept relates to the major life activity of working. Both sets of regulations define a disability -- according to the statutory definition -- as an impairment that substantially limits any major life activity. Both regulations list the following examples of major life activities: "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i) (Title I regulation)(emphasis added); 28 C.F.R. § 36.104(2) (Title II regulation) (emphasis added).

 Clearly, then, the Department of Justice in promulgating rules under Title II contemplated an assessment of a plaintiff's impairment under the major life activity of working. The only question is whether the Department of Justice regulations under Title II forecloses application of the EEOC's interpretation that substantial limitation in the context of the major life activity of working should be measured by a different reference population -- by a comparison to "the average person with comparable training, skills and abilities" 29 C.F.R. § 1630.2(j)(1)(ii) rather than "the average person in the general population. "29 C.F.R. § 1630.2(j)(3)(i). *fn2" I hereby reaffirm my prior conclusion that the EEOC's interpretation of substantial limitation in the context of the major life activity of working is both a part of, and consistent with, the Department of Justice's regulations and the purpose of the ADA.

 I reach this conclusion in part because of the cooperative spirit in which the regulations were promulgated. See, e.g., I Henry H. Perritt, Jr., Americans With Disabilities Act Handbook § 1.9 (3d ed. 1997) (discussing the fact that the Justice Department and EEOC regulations were issued jointly, as required by § 107(b) of the ADA). In addition, the Department of Justice's own "rule of interpretation," under Title II provides: "Except as otherwise provided in this part, this part shall not be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973 . . . or the regulations issued by Federal agencies pursuant to the title." 28 C.F.R. § 36.103. Notably, the Rehabilitation Act now looks to the standards established by Title I of the ADA and the regulations promulgated thereunder. See 29 U.S.C. § 793(d) (providing that "the standards used to determine whether this section has been violated in a complaint alleging nonaffirmative action employment discrimination under this section shall be the standards applied under title I of the Americans with Disabilities Act").

 In its analysis of this "rule of interpretation," the Justice Department has even more pointedly written: "Title II, however, also incorporates those provisions of titles I and III of the ADA that are not inconsistent with the regulations implementing section 504. Therefore, this part also includes appropriate provisions derived from the regulations implementing those titles." 28 C.F.R. § 35.103, App. A, reprinted in, Arlene B. Mayerson, ed., Americans With Disabilities Act Annotated: Legislative History, Regulations & Commentary Title II - 25 (1997); see also H.R. Rep. No. 101-485 at 49-51 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 472-74 ("Title II should be read to incorporate provisions of titles I and III which are not inconsistent with the regulations implementing Section 504 of the Rehabilitation Act of 1973 . . . . However, nothing in the other titles should be construed to lessen the standards in the Rehabilitation Act regulations which are incorporated by reference in Section 204."); U.S. Equal Employment Opportunity Commission & The Department of Justice, Americans with Disabilities Act Handbook I-3 (1992) ("It is the intent of Congress that the regulations implementing the ADA be comprehensive and easily understood. Part 1630 [promulgated by the EEOC], therefore, defines terms not previously defined in the regulation implementing section 504 of the Rehabilitation Act, such as "substantially limits . . ." Where possible, part 1630 establishes parameters to serve as guidelines in such inquiries.").

 From these two statements, it is self-evident that the Department of Justice's own "rule of interpretation" sanctions the use of regulations from a different title to help lend meaning to a concept that is not addressed in its own regulations, see note 2, supra, provided that the other regulations do not impose or permit a "lesser standard." Here, the Title I regulation merely determines the appropriate characteristics -- comparable training, skills, and abilities -- of the persons within the general population against which a substantial limitation is measured in the context of the major life activity of working. The EEOC's conclusion, therefore, does not provide a lesser standard. Moreover, it is perfectly consistent with the Rehabilitation Act, as well as Title II and the remedial nature of the ADA as a whole, and has a sound basis in logic. Thus, the Court's invocation of the Title I regulations as a meaningful interpretive tool was consistent with general rules of statutory interpretation. See, eg., Silverman v. Eastrich Multiple Investor Fund, 51 F.3d 28, 31 (3d Cir. 1995) (explaining that there is "a basic tenet of statutory construction, equally applicable to regulatory construction, that a statute 'should be construed so that effect is given to all of its provisions, so that no part will be inoperative or superfluous, void or insignificant, and so that one section will not destroy another unless the provision is the result of obvious mistake or error.'") (citation omitted); Bower v. Federal Express Corp., 96 F.3d 200, 209-10 (6th Cir. 1996) (arguing that the better choice is to use another regulation for interpretative guidance rather than interpret a term "without regulatory assistance"); Yeskoo v. United States, 34 Fed. Cl. 720, 734 (Ct. Fed. Cl. 1996) (providing that "in construing a statute, courts should attempt not to interpret a provision such that it renders other provisions of the same statute inconsistent, meaningless or superfluous. . . . The meaning of statutory language depends on context, and a statute should be read as a whole. . . . Therefore, when reviewing the statute and regulations at issue in this case, this court must construe each part of a statute in connection with all the other sections, so as to produce a harmonious whole. Moreover, common sense requires that the same words used twice in the same act should have the same meaning."); United States v. Hayashi, 22 F.3d 859 (9th Cir. 1994) (providing that a defendant can not be convicted under the regulations of a statute different from that under which he was indicted, but that nevertheless "a regulation implementing a different statute might aid in interpreting those under another statute."); Price v. The National Board of Medical Examiners, 966 F. Supp. 419, 426 & n.2 (S.D. W. Va. 1997) (employing the Title I regulations in a Title II case, and explaining that "The EEOC guidelines do not govern [Title II] because the guidelines pertain only to Subchapter I. However, Congress clearly intended for the term 'disability' (and, therefore, the phrase 'substantially limits') to have a uniform meaning throughout the ADA. Accordingly, wherever possible, the Court must define the phrase 'substantially limits' in a manner consistent with each of the agencies' interpretations."); Medical Society of New Jersey v. Jacobs, 1993 U.S. Dist. LEXIS 14294, 1993 WL 413016 (D. N.J. 1993) (importing Title I requirements into Title II context); Ellen S. v. Florida Board of Law Examiners, 859 F. Supp. 1489 (S.D. Fla. 1994) (applying Title I standard regarding pre-employment inquiries to Title II case involving bar application).

 B. The Appropriateness of Invoking the Major Life Activity of Working

 1. The Court Considered Other Major Life Activities First

 As previously explained, the defendants do not directly challenge the Court's reliance upon the Title I regulations. In fact, defendants invoke the Title I regulations promulgated by the EEOC as the correct test for assessing disability under the Act. (See Defs.' Brief at 3). However, looking to the EEOC regulations, the defendants contend that the Court erred by analyzing plaintiff's impairment as one which impacts the major life activity of working "without first ...


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