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KILCULLEN v. NEW YORK DEPT. OF TRANSP.

January 19, 1999

JOSEPH C. KILCULLEN, PLAINTIFF,
v.
NEW YORK STATE DEPARTMENT OF TRANSPORTATION, DEFENDANT.



The opinion of the court was delivered by: Kahn, District Judge.

    MEMORANDUM — DECISION AND ORDER

Plaintiff commenced this action alleging employment discrimination on the basis of disability in violation of the Americans with Disabilities Act (hereinafter "ADA"), 42 U.S.C.A. §§ 12101, et seq. (West 1995 & Supp. 1998) and N.Y. Exec. Law §§ 290, et seq. (McKinney 1993) (hereinafter "Human Rights Law" or "HRL"). Presently before the Court is Defendant's motion for summary judgment and Plaintiff's cross-motion for partial summary judgment on the issue of whether he has a disability as that term is defined by the ADA and implementing regulations. This Court finds that it lacks subject matter jurisdiction due to the Defendant's immunity to suit in federal court under the Eleventh Amendment to the United States Constitution. Therefore, Defendant's motion for summary judgment is granted and Plaintiff's cross-motion is denied.

I. Background

Plaintiff alleges that he suffers from epilepsy and a "learning disability." Compl. ¶ 9. He began employment with the Defendant on September 21, 1995 as a Highway Maintenance Trainee 2 ("HMT2"), assigned to work in the Clifton Park Department of Transportation ("DOT") Garage. HMT2s are hired initially under probationary status which continues for one year. While they have probationary status, employees can be fired without cause. Plaintiff was at all relevant times a probationary employee.

Plaintiff's employment responsibilities included the task of snow plowing. Between mid-December 1995 and early January 1996, Plaintiff was involved in four accidents while plowing. On February 28, 1996, Plaintiff was involved in a fifth accident. On February 29, 1996, Glen Decker ("Decker"), the general DOT foreman in Clifton Park, completed a probationary report recommending that the Plaintiff be terminated. Decker also made the subsequent decision to discharge the Plaintiff. Following his termination, Plaintiff brought this action alleging that his discharge was motivated by discrimination against the disabled.

II. Discussion

Defendant argues that the Court lacks subject matter jurisdiction because of the Defendant's immunity to suit in federal court under the Eleventh Amendment. "`Without jurisdiction the court cannot proceed at all in any case. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the case.'" Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, 1012, 140 L.Ed.2d 210 (1998) (quoting Ex parte McCardle, 7 Wall. 506, 514, 19 L.Ed. 264 (1868)). It is well-established that immunity under the Eleventh Amendment "affects our subject matter jurisdiction." Atlantic Healthcare Benefits Trust v. Googins, 2 F.3d 1, 4 (2d Cir. 1993) (citation omitted), cert. denied, 510 U.S. 1043, 114 S.Ct. 689, 126 L.Ed.2d 656 (1994). "The Eleventh Amendment . . . does not automatically destroy original jurisdiction," Wisconsin Dep't. of Corrections v. Schacht, 524 U.S. 381, ___, 118 S.Ct. 2047, 2052, 141 L.Ed.2d 364 (1998), and if a State fails to raise the question of Eleventh Amendment immunity, "a court can ignore it." Id. Here, however, the issue has been raised by the Defendant, and this Court must therefore address whether Eleventh Amendment immunity is applicable.

A.  Eleventh Amendment — General Principles

The Eleventh Amendment to the United States Constitution provides that:

  [t]he Judicial power of the United States shall
  not be construed to extend to any suit in law or
  equity commenced or prosecuted against one of the
  United States by Citizens or Subjects of any
  Foreign State.

U.S. Const. amend. XI. Under this amendment, a State "is immune from suits brought in federal courts by her own citizens as well as by citizens of another state." See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (citation and internal quotations omitted). Further, state agencies are entitled to assert the same Eleventh Amendment immunity as the States themselves. Id. Here, Plaintiff has brought a suit in federal court against a state agency, and the requirements for application of Eleventh Amendment immunity are therefore present.

However, there are two ways that a state may be divested of its Eleventh Amendment immunity: (1) "a state may waive its immunity and agree to be sued in federal court," or (2) "Congress may abrogate a state's sovereign immunity through a statutory enactment . . . ." Close v. State of N.Y., 125 F.3d 31, 36 (2d Cir. 1997).

It is conceded by both parties that neither of these exceptions applies to the HRL claim. See Mete v. New York State Office of Mental Retardation and Developmental Disabilities, 984 F. Supp. 125, 134 (N.D.N.Y. 1997) (McCurn, J.) (holding HRL claim against New York State was subject to Eleventh Amendment immunity). Plaintiff's HRL claim is therefore dismissed. The Court must determine whether an exception applies to the ADA claim. In particular, because there is no assertion that New York has waived immunity, the question presented is whether Congress has abrogated state immunity to claims brought pursuant to the ADA's employment anti-discrimination provision.

Congress may not abrogate a state's Eleventh Amendment immunity unless it (1) "`unequivocally express[s] its intent to abrogate the immunity'"; and (2) acts "`pursuant to a valid exercise of power.'" Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55, 116 S.Ct. 1114, 134 L.Ed.2d 252(1996) (quoting Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985)). To satisfy the first requirement, "Congress' intent to abrogate the States' immunity from suit must be obvious from `a clear legislative statement.'" Id. (quoting Blatchford v. Native Village of Noatak and Circle Village, 501 U.S. 775, 779, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991)). The ADA expressly provides that a "State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter." 42 U.S.C. § 12202 (1994). The first requirement for abrogation is therefore clearly satisfied. Whether the law in question, and specifically the employment anti-discrimination provision, also constitutes a valid exercise of legislative power requires a more thoughtful analysis.

The validity of Congress' attempt to impose federal jurisdiction over the States depends on whether "the Act in question [was] passed pursuant to a constitutional provision granting Congress the power to abrogate [Eleventh Amendment immunity]." Seminole Tribe, 517 U.S. at 59, 116 S.Ct. 1114. It is now established that Congress may abrogate the States' Eleventh Amendment sovereign immunity only by the power vested to it under § 5 of the Fourteenth Amendment. Close, 125 F.3d at 37-38 (citing Seminole Tribe, 517 U.S. at 63, 116 S.Ct. at 1128); see also Mete, 984 F. Supp. at 131 ("the only remaining authority for Congress to abrogate the States' immunity is through § 5 of the Fourteenth Amendment."). Section 5 states: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." U.S. Const. amend XIV, § 5. The first provision of the Fourteenth Amendment states, in relevant part, that "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend XIV, § 1. The question before the Court is whether the ADA's employment anti-discrimination provision is a valid exercise of Congress' power to enforce the Equal Protection Clause of the Fourteenth Amendment.

B.  Is ADA's Employment Anti-Discrimination Provision a
        Valid Exercise of Section 5 of the Fourteenth
        Amendment?

All of the federal appellate courts and a majority of the district courts that have ruled on this issue have concluded that the ADA is a valid Fourteenth Amendment enactment. See Kimel v. State Bd. of Regents, 139 F.3d 1426, 1433 (11th Cir.), reh'g en banc denied, 157 F.3d 908 (1998), petition for cert. filed, 67 U.S.L.W. 3348 (U.S. Nov 13, 1998); Coolbaugh v. State of La., 136 F.3d 430, 438 (5th Cir. 1998), reh'g en banc denied, (May 11, 1998), cert. denied, ___ U.S. ___, 119 S.Ct. 58, 142 L.Ed.2d 45 (1998); Clark v. State of Calif., 123 F.3d 1267, 1270-71 (9th Cir. 1997), cert. denied, Wilson v. Armstrong, ___ U.S. ___, 118 S.Ct. 2340, 141 L.Ed.2d 711 (1998); Crawford v. Indiana Dept. of Corrections, 115 F.3d 481, 487 (7th Cir. 1997); Lamb v. John Umstead Hospital, 19 F. Supp.2d 498 (E.D.N.C. Sept. 1, 1998); Muller v. Costello, 997 F. Supp. 299, 304 (N.D.N.Y. 1998) (Scullin, J.); Martin v. State of Kan., 978 F. Supp. 992, 994-98 (D.Kan. 1997); Williams v. Ohio Dept. of Mental Health, 960 F. Supp. 1276, 1280-83 (S.D.Ohio 1997); Mayer v. University of Minn., 940 F. Supp. 1474, 1477-80 (D.Minn. 1996); Niece v. Fitzner, 941 F. Supp. 1497, 1503-04 (E.D.Mich. 1996). However, a number of appellate and district court judges have come to the opposite conclusion. See Coolbaugh, 136 F.3d at 439-442 (J. Smith, dissenting); Kimel, 139 F.3d at 1449 (J. Cox, concurring in part and dissenting in part); Garrett v. Board of Trustees of University of Ala. in Birmingham, 989 F. Supp. 1409 (N.D.Ala. 1998); Brown v. North Carolina Div. of Motor Vehicles, 987 F. Supp. 451 (E.D.N.C. 1997); Nihiser v. Ohio E.P.A., 979 F. Supp. 1168, 1170-76 (S.D.Ohio 1997); cf. McGregor v. Goord, 18 F. Supp.2d 204, 209 (N.D.N.Y. 1998) (McAvoy, C.J.) (concluding that Family and Medical Leave Act, 29 U.S.C. § 2601, et seq., was not a proper exercise of Congress' § 5 power).*fn1 After considering the controlling precedents, this Court finds that the minority position is the correct one.

The Court is guided principally by City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). The Supreme Court held in Boerne that the Religious Freedom Restoration Act of 1993 ("RFRA") was not a valid enactment under § 5 of the Fourteenth Amendment. RFRA had been passed in reaction to the Supreme Court's decision in Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), which held that where a governmental burden on the exercise of religion is the "incidental effect of a generally applicable and otherwise valid provision," the First Amendment's guarantee of free exercise of religion has not been offended. Id. at 878, 110 S.Ct. 1595. With RFRA, Congress established a different standard controlling the validity of state or local actions that affect the exercise of religion. RFRA prohibited government from "substantially burden[ing]" a person's exercise of religion unless the government could demonstrate that the burden was "in furtherance of a compelling governmental interest" and was "the least restrictive means of furthering that compelling governmental interest." 42 U.S.C.A. § 2000bb-1 (West Supp. 1998).

In reviewing whether RFRA was a valid enactment under § 5 of the Fourteenth Amendment, the Court acknowledged that "§ 5 is `a positive grant of legislative power' to Congress," Boerne, 521 U.S. at ___, 117 S.Ct. at 2163, and that under that grant, the scope of Congress' legislative authority was broad:

  Whatever legislation is appropriate, that is,
  adapted to carry out the objects the amendments
  have in view, whatever tends to enforce
  submission to the prohibitions they contain, and
  to secure to all persons the enjoyment of perfect
  equality of civil rights and the equal protection
  of the laws against state denial or invasion, if
  not prohibited, is brought within the domain of
  congressional power.

Id. (quoting Ex parte Commonwealth of Virginia, 100 U.S. 339, 345-46, 25 L.Ed. 676 (1879)). However, the Court also held that Congress' enforcement power under § 5 of the Fourteenth Amendment "`is not unlimited.'" Id. (quoting Oregon v. Mitchell, 400 U.S. 112, 128, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970)). The critical limitation, the Court found, is that Congress can pass legislation which "enforc[es]" the rights protected by the Fourteenth Amendment as defined by governing judicial precedent, but cannot pass legislation which changes those rights or otherwise declares what the Fourteenth Amendment rights are:

  The design of the Amendment and the text of § 5 are
  inconsistent with the suggestion that Congress has
  the power to decree the substance of the Fourteenth
  Amendment's restrictions on the States. Legislation
  which alters the meaning of the Free Exercise
  Clause cannot be said to be enforcing the Clause.
  Congress does not enforce a constitutional right by
  changing what the right is. It has been given the
  power "to enforce," not the power to determine what
  constitutes a constitutional violation.

Id. at 2164.*fn2

The Court clarified that valid enforcement legislation is restricted to "measures that remedy or prevent unconstitutional behavior . . . ." Id.*fn3 Further, the Court held that not every measure which addresses some unconstitutional behavior is valid Fourteenth Amendment legislation. The Court explained that "[t]here must be a congruence and proportionality between the [constitutional] injury to be prevented or remedied and the means adopted to that end." Id. Under this requirement,

  [t]he appropriateness of remedial measures must
  be considered in light of the evil presented.
  Strong measures appropriate to address one harm
  may be an unwarranted response to another, lesser
  harm.

Id. at ___, 117 S.Ct. at 2169. The Court also stated that where a Congressional enactment singles out for prohibition a particular type of law or conduct which is not facially unconstitutional, there must be "reason to believe that many" instances of the law or conduct "have a significant likelihood of being unconstitutional." See Boerne, 521 U.S. at ___, 117 S.Ct. at 2170. The Court concluded that RFRA was not a valid enactment under the Fourteenth Amendment because it was "not designed to identify and counteract state laws likely to be unconstitutional . . . ." Id. at ___, 117 S.Ct. at 2171.

C.  The Relevant Constitutional Right

The constitutional rights of the disabled under the Equal Protection Clause were addressed by the Supreme Court in City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). In that case, the Court rejected the argument that state action involving persons with mental disabilities and challenged as violating the Equal Protection Clause should be reviewed under heightened scrutiny. Id. at 446, 105 S.Ct. 3249. Instead, it held that such state action was subject only to rational-basis scrutiny. Id.

Under this standard, state action which has a disparate impact does not violate the Equal Protection Clause "if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose." Heller v. Doe by Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993); see also Romer v. Evans, 517 U.S. 620, 632, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (under rational basis review, a law "will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group . . . ."). This relationship is "not difficult to establish" since the rational relationship need only be "`at least debatable.'" Metropolitan Life Insurance Co. v. Ward, 470 U.S. 869, 881, 105 S.Ct. 1676, 84 L.Ed.2d 751 (1985) (quoting Western & Southern Life Ins. Co. v. State Board of Equalization of California, 451 U.S. ...


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