The opinion of the court was delivered by: Ross, District Judge.
This action was brought by the United States against two New
York state agencies, the Department of Motor Vehicles ("DMV") and
the Department of Education ("SED"), and the Three Village
Central School District (the "District") under the Americans with
Disabilities Act (the "ADA"). The case is the second to arise
from the refusal of the Amboy Bus Company ("Amboy") to hire
Theodore Bacalakis as a school bus driver due to regulations of
DMV and SED (collectively, the "State Defendants") barring
operation of a bus by any individual missing a limb and a
contract between Amboy and the District that incorporated the
regulations. On August 19, 1998 in a separate action, Equal
Employment Opportunity Comm'n v. Amboy Bus Co., 96-CV-5451, this
court determined that Amboy, despite its good faith adherence to
state regulations, was liable for its violation of the ADA. The
United States separately sued the three defendants in this action
seeking to compel the agencies to amend their regulations and
seeking damages for Bacalakis. All parties
now move for summary judgment on the issue of liability and the
availability of an award of back pay.*fn1
Theodore Bacalakis, an alumnus of the Three Village Schools,
began driving a school bus on District routes for Amboy in 1986.
On August 10, 1991, Bacalakis was struck by a car while off-duty
and, as a result, lost his left leg below the knee. He underwent
extensive rehabilitation and was fitted with a prosthesis. During
his convalescence he remained in touch with Amboy, and by May
1993 was able to resume his duties. Bacalakis therefore paid a
visit that month to Joseph LoGelfo, his manager at Amboy, hoping
to return to work.
LoGelfo informed Bacalakis, however, that he was no longer
qualified to drive a bus in New York. A DMV regulation then in
A person is physically qualified to drive a bus if he
or she has no loss of a foot, a leg, a hand or an
arm, except that if a person has been employed by a
motor carrier and has suffered a loss of a foot, leg,
hand or an arm prior to the biennial physical
examination of July of 1978 and he or she has
demonstrated an ability to safely operate a bus, he
or she may be deemed to be physically qualified in
spite of such loss.
15 N.Y.C.R.R. § 6.11(b)(1). Bacalakis was also prohibited from
operating a school bus by an SED regulation:
Physical fitness: (1) Each driver of a school
transportation conveyance shall meet the requirements
of § 6.11 of the regulations of the Commissioner of
Motor Vehicles and the following basic minimum
(ii) shall have all limbs, hands and feet, including
sufficient digits on each hand and the use thereof to
enable the driver to control and safely operate the
8 N.Y.C.R.R. § 156.3(c). LoGelfo was sympathetic, but explained
to Bacalakis that the regulations prohibited Bacalakis from
driving a school bus. He took Bacalakis out for a drive in a bus
that day, for at least part of which Bacalakis drove. But for the
regulations, LoGelfo would have rehired Bacalakis. He recommended
that Bacalakis contact the bus driver certification unit of DMV
to inquire whether he might somehow qualify to drive a bus.
Bacalakis did so and was told that no exception could be made
under the regulation.
Shortly before the 1993-94 school year began, Bacalakis
attended the "pick," at which the drivers selected their routes
based on seniority. Bacalakis was not permitted by LoGelfo to
participate on the ground that he was not qualified to drive a
bus. In October, Bacalakis again visited LoGelfo, seeking
reinstatement. LoGelfo told him that, in light of DMV's response
to Bacalakis's inquiry seeking an exception, LoGelfo could not
hire him. He suggested that Bacalakis might talk to Eileen
McCarthy, the District's Transportation Coordinator.
On December 15, 1993, Bacalakis filed a charge against Amboy
with the EEOC. On March 3, 1994 he did the same against DMV, SED,
and the District. The EEOC issued reasonable cause determinations
that all four parties violated the ADA on September 28, 1994.
Conciliation attempts failed, including negotiations between
Plaintiff and DMV and SED to amend their regulations, and on June
13, 1996 this action was commenced. On August 28, 1996, New York
rescinded its regulations prohibiting individuals missing limbs
from driving school buses and Amboy reinstated Bacalakis within a
week. On November 5, 1996, the EEOC brought suit against Amboy.
As noted above, Amboy was held liable for damages to Bacalakis
for the period preceding his reinstatement. The damages were set
by consent decree in the amount of $49,000.
All parties in this case agree that Bacalakis is an individual
with a disability within the meaning of the ADA and that he is
qualified to drive a school bus. All agree also that the blanket
refusal to hire amputee school bus drivers violated the ADA. At
issue is whether DMV, SED, and the District discriminated against
him and, if so, to what damages he is entitled.
I. The Standard for Summary Judgment
In ruling on a motion for summary judgment, judgment "shall be
rendered forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment
as a matter of law." Fed.R.Civ.P. 56(c). "[T]he burden is upon
the moving party to demonstrate that no genuine issue respecting
any material fact exists," Gallo v. Prudential Residential
Services, L.P., 22 F.3d 1219, 1223 (2d Cir. 1994), but "the mere
existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine
issue of material fact." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
"On summary judgment the inferences to be drawn from the
underlying facts . . . must be viewed in the light most favorable
to the party opposing the motion," United States v. Diebold,
Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176
(1962), but the non-moving party "must do more than show there is
some metaphysical doubt as to the material facts." Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106
S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). In making the necessary
showing, "[c]onclusory allegations [by the non-moving party] will
not suffice to create a genuine issue." Delaware & Hudson Ry.
Co. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d.Cir.
1990). A "genuine" issue is one that could be decided in favor of
the non-moving party based on the evidence by a reasonable jury.
Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510. The role of
the court in deciding a motion for summary judgment is not to
decide issues of fact, but only to determine whether or not they
exist. Rattner v. Netburn, 930 F.2d 204, 209 (2d.Cir. 1991).
II. The Defendants as Employers
All three defendants move for summary judgment on the ground
that they were not covered entities under Title I of the ADA with
respect to Bacalakis, and therefore that title's strictures did
not bind them in this situation. A "covered entity" is defined
for the purposes of Title I as "an employer, employment agency,
labor organization, or joint labor-management committee."
42 U.S.C. § 12111(2). The parties agree that if the defendants are
covered entities, it is because they fall under the definition of
"employer." That term means "a person engaged in an industry
affecting commerce who has 15 or more employees for each working
day in each of 20 or more calendar weeks in the current or
preceding calendar year, and any agent of such person. . . ."
42 U.S.C. § 12111(5)(A). The State Defendants do not contend that
they do not meet this definition generally, but argue that, with
respect to Bacalakis specifically, Amboy, and perhaps the
District, were employers, not DMV and SED. See State
Defendant's Mem. of Law 14 n. 10. The District argues that only
Amboy employed Bacalakis. See District's Mem. of Law 7. Whether
an entity is an "employer" is a question of law. See Amarnare v.
Merrill Lynch, Pierce, Fenner & Smith, Inc., 611 F. Supp. 344,
348 (S.D.N.Y. 1984).
A. Interference and the Sibley Line of Cases
The term "employer" as used in civil rights laws extends beyond
the entity that pays an individual his or her paycheck. A
defendant that does not have a direct employment relationship
with a plaintiff may nonetheless be liable under Title VII of the
Civil Rights Act of 1964 ("Title VII"), the Age Discrimination in
Employment Act (ADEA), or the ADA for its discriminatory acts if
it interferes with the plaintiff's employment opportunities with
a third party and the defendant controls access to those
This principle was first articulated in Sibley Memorial Hosp.
v.. Wilson, 488 F.2d 1338 (D.C.Cir. 1973). In that case, a male
private-duty nurse relied on referrals from the hospital, but was
not an employee of the hospital. The court sustained a Title VII
action against the hospital when hospital staff twice refused to
refer the plaintiff to female patients on the basis of his sex.
See id. at 1339-40. The goal of providing equal access to the
job market would be undermined, the court reasoned, by applying a
narrow definition of "employer:"
To permit a covered employer to exploit circumstances
peculiarly affording it the capability of
discriminatorily interfering with an individual's
employment opportunities with another employer, while
it could not do so with respect to employment in its
own service, would be to condone continued use of the
very criteria for employment that Congress has