Supervisor at SED to ask whether some exception might be made to
what McCarthy viewed as an unfair rule. According to McCarthy,
the SED official responded angrily, and insisted that the
District must abide by the regulation. McCarthy therefore
informed Bacalakis that her hands were also tied, and that she
could not help him.
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rescinded its regulations prohibiting individuals missing limbs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
Id. at 1341. The Sibley court noted that Congress provided
remedies for "any individual" who suffered employment
rather than limiting the statute's coverage to employees and
applicants, and found that choice to be a "strong indication that
the proscriptions contemplated by [Title VII] reach beyond the
immediate employment relationship." Id. Thus, because the
hospital "control[led] the premises upon which [appellee's]
services were to be rendered, including appellee's access to the
patient for purposes of the initiation of . . . employment," it
could be considered the nurse's employer for Title VII purposes
notwithstanding the absence of a direct employment relationship.
Id. at 1342.
The Second Circuit has adopted the indirect employment
rationale of Sibley. Spirt v. Teachers Insurance and Annuity
Assoc., 691 F.2d 1054 (2d Cir. 1982), judgment vacated on other
grounds, 463 U.S. 1223, 103 S.Ct. 3565, 77 L.Ed.2d 1406 (1983),
it is generally recognized that the term "employer,"
as it is used in Title VII, is sufficiently broad to
encompass any party who significantly affects access
of any individual to employment opportunities,
regardless of whether that party may technically be
described as an "employer" of an aggrieved individual
as that term has generally been defined at common
Spirt, 691 F.2d at 1063 (internal quotation marks omitted).
Diana Spirt was a professor at Long Island University who was
required as a term of her contract to participate in the
retirement benefits program run by the defendants. Those benefits
included an annuity that, due to women's longer average lifespan,
paid a lower monthly benefit to women than to men. The Second
Circuit concluded that because the defendants were so intertwined
with the university, they could be considered Spirt's employers
for Title VII purposes. See id. The Spirt decision thus
adopted Sibley's concept of "indirect liability for an
employer's interference with an individual's employment with
third parties." Bender v. Suburban Hosp., Inc., 159 F.3d 186,
188 (4th Cir. 1998).*fn3 Where an entity meets the statutory
requirements of an "employer" and exerts significant control over
an individual's access to or terms and conditions of employment
with a third party, that entity can be considered an "employer"
despite the absence of a common-law employment relationship with
B. Applying the Interference Theory to the District
The contract between the District and Amboy gave the District
sufficient control over Bacalakis's employment to deem it his
employer under Spirt. That contract provides:
The names of all prospective Drivers, whom the
Contractor [Amboy] expects may operate a Bus with
student passengers under the terms of this contract,
must be submitted to the District by the Contractor
for District approval. The District shall withhold or
withdraw approval of any Driver who does not comply
with any provision of this contract. The District
may, in the prudent exercise of its sound discretion,
withhold or withdraw approval for any other reason.
At no time shall any Bus carrying student
passengers under this contract be operated other than
by an approved Driver.
McCarthy Dep.Exh. 1 at 21 (emphasis in original). For each
driver, Amboy was required to provide the District with medical
reports, letters of reference, a list of accidents occurring
within the previous three years from Amboy's insurer, a driver
abstract from the Motor Vehicle Bureau, and certification of
completion of a forty-six hour driver training course. See id.
at 17-20. The District could require that drivers be
fingerprinted by the police and that the prints be checked. See
id. at 18.