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April 12, 2004.

TRANSPORT WORKERS UNION OF AMERICA, LOCAL 100, AFL-CIO; ROGER TOUSSAINT, as President of Transport Workers Union of America, Local 100, AFL-CIO; TRANSPORT: WORKERS UNION OF AMERICA, AFL-CIO; SONNY HALL, as President of Transport Workers Union of America; AFL-CIO; AMALGAMATED TRANSIT; UNION, LOCAL 726, AFL-CIO; and ANGELO TANZI, as President of: Amalgamated Transit Union, Local 726, AFL-CIO, Plaintiffs -against- and MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY, Defendants

The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge


This case presents two important questions concerning the Americans with Disabilities Act (ADA).*fn1 First, whether a labor union has standing to assert claims of employment discrimination on behalf of, or regarding, its members under either Title I or Title II of the ADA. And second, whether a claim of employment discrimination may be maintained under Title II, as opposed to Title I, of the ADA. Because I answer both questions in the affirmative, the defendants' motion to dismiss is denied in its entirety.


  The allegations of the complaint are remarkably straightforward and can be summarized, for the purposes of this motion, as follows. Plaintiffs are three labor unions (and their respective presidents): Transport Workers Union of America, Local 100; Local 100's parent union, the Transport Workers Union of America; and Amalgamated Transit Union, Local 726 (collectively, the "Unions").*fn2 Defendants New York City Transit Authority and Manhattan and Bronx Surface Transit Operating Authority (collectively, the "Authority") operate mass transit within New York City. The Unions collectively represent the majority of the Authority's hourly employees who work in the subways and bus depots in Manhattan, the Bronx, and Brooklyn.*fn3

  In this action, the Unions are challenging a sick leave policy codified in the collective bargaining agreement negotiated by the Authority and the Unions.*fn4 (As a historical matter, the policy predated the existence of the bargaining agreement and is contained in the current agreement because of the ruling of an independent arbitration panel in 1982. The Unions have objected to enforcement of the policy since at least 2002, and possibly as early as 1991.)*fn5 Under the terms of the challenged policy — the details of which are not relevant here — Authority employees who seek sick leave must produce documentation containing a diagnosis and treatment plan, and may have to submit to medical examinations.*fn6 The Unions complain that this policy discriminates against their members, in violation of the ADA.

  Although the sick leave policy does not "discriminate" in the ordinary sense of treating some people less favorably than others,*fn7 Title I of the ADA defines discrimination as including "medical examinations and inquiries."*fn8 In particular,
A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.*fn9
Unless the Authority can demonstrate a "business necessity" — an issue not presented by this motion — it is easy to see that the challenged sick leave policy may run afoul of the ADA.*fn10

  The Unions assert two causes of action, both on their own behalf and on behalf of their members, alleging unlawful discrimination in violation of the ADA. The first claim is premised on Title II of the ADA, which prohibits discrimination by any "public entity" on account of a person's disability.*fn11 The Unions' second claim is based on Title I of the ADA, which prohibits employment discrimination by any "covered entity."*fn12 The Authority concedes, as it must, that it is both a "public entity" within the meaning of Title II of the ADA, as well as a "covered entity" within the meaning of Title I.*fn13 The Authority moves to dismiss this case in its entirety, arguing that the Unions lack standing to assert these claims, and that, in any case, Title II of the ADA does not give rise to claims for employment discrimination.*fn14 II. LEGAL STANDARD

  "Given the Federal Rules' simplified standard for pleading, `[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'"*fn15 Thus, a plaintiff need only plead `"a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests."*fn16 Simply put, "Rule 8 pleading is extremely permissive."*fn17

  At the motion to dismiss stage, the issue `"is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test.'"*fn18

  The task of the court in ruling on a Rule 12(b)(6) motion is `"merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'"*fn19 When deciding a motion to dismiss pursuant to Rule 12(b)(6), courts must accept all factual allegations in the complaint as true and draw all reasonable inferences in plaintiff's favor.*fn20


  The Unions assert claims of discrimination under Titles I and II of the ADA. Title I explicitly addresses employment discrimination, prohibiting discrimination based on a person's disability with respect to "job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment."*fn21 Peculiar to Article Fs definition of discrimination is that it "include[s] medical examinations and inquiries."*fn22 Article II, on the other hand, provides in relevant part:
[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.*fn23
Unlike Title I (and Title HI), Title II contains no specific definition of the term "discrimination" at all, much less the particular provision regarding medical examinations and inquiries.

  The Authority thus asserts two independent bases for dismissing the Unions' claims. First, it argues that because the Unions themselves have not been discriminated against by virtue of the Authority's sick leave policy, they have no standing to sue under the ADA. Second, even if the Unions do have standing, their claim under Title II must be dismissed because that title does not permit claims of employment discrimination. As standing may be jurisdictional, I address that argument first.*fn24

  A. Standing

  Standing can be constitutional or prudential. Constitutional standing arises from the "case or controversy" requirement of Article III, whereas prudential standing involves "judicially self-imposed limits on the exercise of federal jurisdiction . . .,"*fn25 Included in this latter category is "the general prohibition on a litigant's raising another person's legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked."*fn26 Also included within the broad rubric of prudential standing is statutory standing, ...

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