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January 12, 2000


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 place read:

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 physical requirements:
(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 vehicle

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.

Bacalakis met with McCarthy in December 1993. She was the District official who managed the contract with Amboy. Under that contract and by SED regulation, the District had to approve every driver who transported students. McCarthy was responsible for reviewing each application submitted by Amboy and recommending approval to the Superintendent. McCarthy was quite sympathetic to the driver's plight. While Bacalakis was in her office she placed a call to the Transportation 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

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 opportunities.*fn2

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 prohibited.

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