Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
KILCULLEN v. NEW YORK DEPT. OF TRANSP.
January 19, 1999
JOSEPH C. KILCULLEN, PLAINTIFF,
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
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
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.
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
[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
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
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
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
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.
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
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. ...