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United States District Court, S.D. New York

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, the requirements laid out by act of Congress for who may bring suit.*fn27 In this case, the Authority challenges the Unions' standing to sue both under Article III and under the ADA.

  1. Statutory Standing Under the ADA

  The Authority makes a lengthy argument as to why it believes the Unions are not proper plaintiff's under the ADA. In fact, the Authority reads a standing requirement into the text of the ADA that does not exist.

  With respect to Article II of the ADA, the Authority contends that only a "qualified individual with a disability"*fn28 — which obviously excludes the Unions — has standing. This is a misreading of the statute. It is true that Title II prohibits discrimination against such qualified individuals; Title II provides a cause of action, however, for "any person alleging discrimination on the basis of disability."*fn29 Title II therefore imposes no standing requirement whatsoever. If there was any doubt about this fact, it was definitively dispelled by the Second Circuit, which held that "the use of such broad language in the enforcement provisions of the statute[] evinces a congressional intention to define standing to bring a private action under . . . Title II as broadly as is permitted by Article III of the Constitution."*fn30

  Title I similarly imposes no statutory standing requirement. Indeed, Title I contains the same enforcement language as does Title II, specifying that the "powers, remedies, and procedures" provided to "any person alleging discrimination on the basis of disability" are supplied by Title VII of the Civil Rights Act of 1964.*fn31 And even if one looks to the language of Title VII, as the Authority urges, that statute provides a remedy for any "person aggrieved,"*fn32 language just as sweeping, if not broader, than that used in the ADA itself. Indeed, such language has consistently been interpreted — in Title VII as well as other statutes — by appellate courts as conferring standing on all persons who otherwise have standing under Article III of the Constitution.*fn33

  In sum, neither Title I nor Title II of the ADA imposes a statutory standing requirement. The only question, therefore, is whether the Unions have Article III standing.

  2. Constitutional Standing

  The Unions advance two independent bases for their standing. First, the Unions argue that they have standing in their own right, as a party aggrieved by the Authority's sick leave policy. Second, they argue that they also have associational standing to sue on behalf of their members, who are subject to the challenged policy and unquestionably have standing.*fn34

  a. The Unions' Standing in Their Own Right

  The Supreme Court has explained the elements of Article III standing as follows:

  It is by now well settled that "the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an `injury in fact' — an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of. . . . Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision."*fn35 The burden "clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute" falls decisively on "the party who seeks the exercise of jurisdiction in his favor."*fn36 These requirements apply equally to organizations — such as labor unions — as to natural persons.*fn37

  In this case, the Unions have alleged a concrete harm that is causally linked to the Authority's sick leave policy: the expenditure of resources while representing employees in grievance and arbitration hearings regarding sick leave, and the attendant diversion of those resources from other union activities.*fn38 Moreover, this injury will be remedied (at least, going forward) if the allegedly illegal aspects of the sick leave policy are struck down. This is precisely the sort of injury that courts have historically found provides an organization standing to sue on its own behalf.*fn39 This case is no exception. Thus, the Unions have standing to sue in their own right.

  b. Associational Standing

  Completely apart from the harms that provide standing to the Unions on their own behalf, they argue that they also have "associational standing" — that is, standing to sue on behalf of their constituents.*fn40 The Second Circuit has very recently had occasion to address the requirements for an organization to assert associational standing:

In determining whether an association has standing to maintain a suit to redress its members' injuries, rather than an injury to itself, we apply a three-pronged test. Under this test, the association has standing if (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.*fn41
The Unions easily meet the requirements of this test. First, in Conroy v. New York State Department of Correctional Services, the Second Circuit squarely held that an employee has standing to challenge her employer's sick leave policy under the ADA. Although Conroy apparently involved only a Title I claim, for the reasons discussed above, the contours of standing under Title I and Title II are precisely the same (and are coterminous with the reach of Article III of the Constitution). Because the Unions' constituents are employees of the Authority subject to the sick leave policy, they have standing to sue.*fn42

  Second, the interests that the Unions seek to protect here — the quality of working conditions and conditions of employment — are obviously germane to the Unions' purpose.*fn43 Indeed, that the sick leave policy is codified in an agreement collectively bargained by the Authority and the Unions is powerful proof of the Unions' interest in the policies its members are subject to.

  Third, and finally, no individual employee's participation is required to adjudicate the Unions' claims or grant its requested relief. Ordinarily, claims for injunctive relief, as opposed to damages, will satisfy this requirement.*fn44 Under this prong, however, an "organization lacks standing to assert claims of injunctive relief on behalf of its members where `the fact and extent' of the injury that gives rise to the claims for injunctive relief `would require individualized proof,' or where `the relief requested would require the participation of individual members in the lawsuit.'"*fn45

  Here, the Unions "seek[] a purely legal ruling without requesting that the federal courts award individualized relief to its members."*fn46 The Second Circuit has held that under such circumstances, the third prong of the associational standing test is satisfied.*fn47 There is no reason to believe that the Unions' claims are anything but generic: they are making a facial challenge to a sick leave policy that applies equally to all employees. The only questions on the merits are, first, whether the policy offends the ADA and second, whether the Authority can demonstrate a "business necessity" for that policy. Neither of these questions turn on the claims of individual employees.*fn48 Nor does the relief requested — essentially, an invalidation of the sick leave policy — require any individualized attention.

  c. Estoppel

  As a fall-back position, the Authority argues that even if the Unions have standing under the ordinary rules, they have waived their standing to object to the sick leave policy by virtue of the policy's inclusion in the collective bargaining agreement. The existence of the challenged policy in a collective bargaining agreement, however, does not alter the standing calculus.

  The nature of collective bargaining is that it is a negotiation — one party relinquishes something (either by lowering its demands or agreeing to a provision that the other party values) in order to receive a concession that it deems more worthwhile. Therefore, in order to eliminate the sick leave policy from the collective bargaining agreement, the Unions would have been required to sacrifice some other benefit for their members. But if the policy is not legal, the Unions should not have to make that sacrifice.*fn49 This is especially true where, as here, the challenged policy was inserted unilaterally by the Authority into the original collective bargaining agreement. Thus, the Unions would have been required to bargain to remove a pre-existing policy that the Authority valued; the cost of winning that concession would likely have been considerable.*fn50

  The Authority argues that if a court strikes the sick leave policy from the collective bargaining agreement, it will have lost the benefit of its bargain. Nonetheless, a party imposing an illegal provision in a collective bargaining agreement bears the risk that the provision will be struck down.*fn51 In short, the presence of the sick leave policy in the collective bargaining agreement is irrelevant to the Unions' standing.

  In sum, the Unions have demonstrated the necessary elements of associational standing and can therefore prosecute this suit on behalf of their members. In addition, the Unions have demonstrated an actual injury to themselves, meeting the requirements for standing under Article III to pursue their claim on their own behalf.

 B. Employment Discrimination Under Title II of the ADA

  Having determined that the Unions are proper plaintiff's in this case, I turn now to the only other question presented by the Authority's motion: whether Title II of the ADA may give rise to claims of employment discrimination. Title II provides:

Subject to the provisions of this [title], no 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.*fn52
The question, then, is whether this provision contemplates employment discrimination.*fn53 In particular, the question is whether the phrase "or be subject to discrimination" can be read expansively, to include employment discrimination, or whether it refers back to discrimination in the "services, programs, or activities of a public entity."*fn54 In this case — because the Unions have also sued under Title I — the question is somewhat academic. As a general matter, however, whether Title II covers employment discrimination by public entities is an important question. Among other reasons, a Title I plaintiff is required to exhaust her administrative remedies before filing a federal suit: she must make a timely complaint to the EEOC, receive a right-to-sue letter, and then file suit within 300 days.*fn55 A Title II plaintiff is not subject to any of these requirements.*fn56 In any event, the Unions are certainly entitled to pursue their claims under multiple legal theories.*fn57

  At the outset, I note that the Unions' assertion that the Second Circuit, in Innovative Health Systems, resolved this issue is incorrect. There, the court wrote:

  [T]he language of Title II's anti-discrimination provision does not limit the ADA's coverage to conduct that occurs in the "programs, services, or activities" of the City. Rather, it is a catch-all phrase that prohibits all discrimination by a public entity, regardless of the context, and that should avoid the very type of hair-splitting arguments the City attempts to make here.*fn58 The seemingly broad scope of the court's language notwithstanding, it is important to read these words in context.*fn59 Innovative Health Systems concerned a challenge to an allegedly discriminatory zoning decision, and the question presented there was whether zoning decisions are "programs, services, or activities" of a locality, or are otherwise covered by Title II.*fn60 As the Second Circuit subsequently made clear, whether Title II of the ADA covers employment discrimination claims remains an open question.*fn61 I turn, then, to the words of the statute itself.*fn62 1. Plain Language of Title II

  "The preeminent canon of statutory interpretation requires us to presume that the legislature says in a statute what it means and means in a statute what it says there. Thus, our inquiry begins with the statutory text, and ends there as well if the text is unambiguous."*fn63 In conducting this analysis, however, statutory language must not be taken out of context, or examined outside of the overall structure and purpose of the law that contains it.*fn64 In this case, the plain language of Title II is informed by the ADA as a whole, as well as by the Rehabilitation Act and Title VII of the Civil Rights Act of 1964, both of which are referenced in the ADA and are part of the same legislative scheme.*fn65

  The ADA was enacted to redress "discrimination against individuals with disabilities . . . in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services."*fn66 Thus, in drafting the ADA, Congress sought "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disability."*fn67 Taken together, Title VII, the Rehabilitation Act, and the ADA provide a comprehensive regime designed to combat discrimination that "invoke[s] the sweep of congressional authority."*fn68

  Given this broad congressional mandate, it is certainly at least a plausible reading of Title II that it covers employment discrimination.*fn69 This conclusion is bolstered by the Second Circuit's dicta in Innovative Health Systems that Title II's anti-discrimination language is a "catch-all phrase that prohibits all discrimination by a public entity, regardless of the context."*fn70 Indeed, the Second Circuit has applied Title II in employment actions, albeit without discussing the issue presented here.*fn71

  In Zimmerman v. Oregon Department of Justice, the Ninth Circuit suggested another reading: Congress intended for the second clause [the "or be subjected to discrimination by any such entity" language] to prohibit intentional discrimination, whereas it intended for the first clause to prohibit disparate treatment of the disabled. . . . [B]oth clauses prohibit discrimination by a public entity in providing its services, programs, and activities. The clauses differ only in their method of prohibiting discrimination.*fn72

 The court provided the following example of conduct it thought prohibited under the "first clause" of Title II:

Few would argue that architectural barriers to disabled persons such as stairs, or communication barriers such as the preference for the spoken word, are intentionally discriminatory. Yet stairs can deny the wheelchair-bound access to services provided on the second floor of a government building; and communicating only by the spoken word can deny deaf persons the ability to find out that it is the second floor where they must go to obtain the services they seek.*fn73
The "second clause," presumably, would prohibit intentional discrimination such as an explicit policy banning the disabled from the second-floor offices, or the services provided there. Obviously, such a construction would not cover employment discrimination.

  The strongest argument advanced by the Authority on behalf of this interpretation is that a construction of Title II that includes employment discrimination would render Title I redundant, at least insofar as it applies to public entities.*fn74 It is, after all, a "cardinal rule of statutory interpretation that no provision should be construed to be entirely redundant."*fn75

  This argument is unpersuasive for a number of reasons. First, Title II — even on the Authority's reading — is not "entirely" redundant. The two titles overlap only to the extent that they deal with public entities. Second, even with respect to public entities, the scope of the two titles is different:

There are differences in the scope of coverage of employment discrimination under Title I and Title II (Title I covers employers with 15 or more employees, while Title II covers all public employers, regardless of size), the two Titles evolved from different civil rights laws (Title I is modeled on Title VII of the 1964 Civil Rights Act, while Title II is modeled on the Rehabilitation Act and Title VI of the 1964 Civil Rights Act), and there is a difference in the forms of relief (compensatory and punitive damages are available under Title I, but may not be under Title II), and the procedures to be followed (administrative exhaustion is required under Title I but not under Title II). Thus, the provisions of the two Titles are not coextensive; although both apply to employment, neither is redundant.*fn76
Third, and finally, there is nothing "redundant" about Congress creating overlapping rights, especially in the area of discrimination.*fn77

  But even assuming that the construction advanced by the Ninth Circuit in Zimmerman is a plausible reading of Title II,*fn78 that would render Title II's scope ambiguous. If the meaning of a statute is ambiguous, then a court must use other tools of statutory construction to determine its proper meaning.

  2. Agency Regulations

  As noted, Title II does not contain an extensive definition of the term "discrimination." Rather, Congress delegated to the Attorney General the power to promulgate regulations relevant to Title II.*fn79 The Attorney General, in turn, has explicitly determined that Title II applies to employment discrimination:

No qualified individual with a disability shall, on the basis of disability, be subjected to discrimination in employment under any service, program, or activity conducted by a public entity.*fn80
Under the Supreme Court's decision in Chevron U.S.A. Inc. v. Natural Resources Council, Inc., a court must give "considerable weight" to a regulation unless it is "arbitrary, capricious, or manifestly contrary to the statute."*fn81 Thus, a court must defer to the executive's construction of Title II unless the "intent of Congress is clear" and the meaning of the statute is unambiguous, for a court may not give effect to a regulation that ignores the "unambiguously expressed intent of Congress."*fn82 Because I have already determined that the text of Title II is susceptible to two plausible readings, I must adopt the construction of Title II provided by the Attorney General's regulation. 3. Legislative History

  The legislative history of the ADA also compels the conclusion that Title II covers employment discrimination. The House Judiciary Committee Report, for example, notes that "[t]he Committee intends . . . that the forms of discrimination prohibited by [Title II] be identical to those set out in the applicable provisions of titles I and III of this legislation . . .,"*fn83 The Committee went on to say: "The purpose of title II is to continue to break down barriers to the integrated participation of people with disabilities in all aspects of community life. The Committee intends that title II work in the same manner as Section 504 [of the Rehabilitation Act]."*fn84

  Section 504 of the Rehabilitation Act, in turn, is unquestionably an employment discrimination provision. As the Eleventh Circuit noted in Bledsoe v. Palm Beach County Soil and Water Conservation District,

It is significant that Congress intended Title II to work in the same manner as Section 504 of the Rehabilitation Act, because Section 504 was so focused on employment discrimination that Congress enacted subsequent legislation to clarify that Section 504 applied to other forms of discrimination in addition to employment discrimination.*fn85
  In conclusion, it appears quite clear that Title II of the ADA covers employment discrimination.


  For the reasons just given, the Authority's motions to dismiss are denied. The Unions have stated viable claims for employment discrimination under both Titles I and II of the ADA. The Clerk is directed to close these motions [#14, #21], A conference is scheduled for April 30, 2004, at 4:30 p.m. in Courtroom 15C.


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