C. v. New York State and Local Retir

Filing 124

REPLY BRIEF, on behalf of Appellant Mary Jo C., FILED. Service date 12/05/2011 by CM/ECF. [464129] [11-2215]

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

x----------------------------------------------------------------X
MARY JO C.
Plaintiff-Appellant,

NEW YORK STATE AND LOCAL
RETIREMENT SYSTEM,
CENTRAL ISLIP PUBLIC LIBRARY,
Defendants-Appellees.

REPLY BRIEF FOR PLAINTIFF-APPELLANT

ON APPEAL FROM A FINAL JUDGMENT BY THE
UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF NEW YORK

WILLIAM M. BROOKS
Attorney for PlaintifS-Appellant
Mental Disability Law Clinic
Touro College
Jacob D. Fuchsberg Law Center
225 Eastview Drive
Central Islip, New York 11722
(631 ) 76 1-7086

TABLE OF CONTENTS
Page
PRELLIMIN ARY STATEMENT.. ..................................................................
ARGUMENTS.. ...............................................................................................
I.

THE PLAINTIFF HAS STATED A CLAIM UNDER
TITLE I1 OF THE ADA BECAUSE THE WAIVER OF
THE THREE-MONTH PROCEDURAL RULE
CONSTITUTES A REASONABLE MODIFICATION .............
A. The Three Month Requirement For Filing Is not
Critical to the Functioning of the State
Retirement System................................................................
B.

11.

No Basis Exists to Exempt State Statutes From
the Reasonable Modification Provisions of
Title I1...................................................................................

ELEVENTH AMENDMENT IMMUNITY DOES NOT
DEFEAT THE PLAINTIFF'S CLAIM.. .....................................
A. Because the Plaintiff Does Not Seek Damages
From NYSLRS, the Plaintiff can Amend her
Complaint to Substitute the Chief Officer of
NYSLRS in his Official Capacity.......................................
B. Congress Validly Abrogated the State's Eleventh
Amendment Immunity With Respect to the
Provision of Disability Retirement Benefits.........................

111.

BECAUSE CONGRESS INTENDED THAT TITLE I1
INCOPORATE THE PROVISIONS OF SECTION 504
TO STATE AND LOCAL GOVERNMENTS, TITLE I1
COVERS EMPLOYMENT..........................................................
A. Introduction-Understanding the Framework
Underlying the Passage of the ADA ......................................

18

TABLE OF CONTENTS
Page

B. Title I is not the Only Provision of the ADA that
Addresses Employment Discrimination............................

19

C. The Weight of Second Circuit District Court
. .
Authonty 1s Wrong ............................................................

22

1. The Text and Structure of the ADA Does not
Warrant the Conclusion that Only Title I
Covers Employment Discrimination......................

22

2. That Title I1 Does not Require Exhaustion
Of Administrative Remedies is not
Persuasive Authority...............................................

24

3. That Congress Created Different Regulatory
Authority for Titles I and I1 Does not Justify
The Conclusion that Congress Wanted to
Exclude Employment Discrimination From
Title I1 Coverage.....................................................

26

4. The Linlung of the Rehabilitation Act to
Title I is not Persuasive Authority..........................

27

D. The Department of Justice Regulations Withstand
Chevron Analysis..............................................................

27

E. The Library's Attempts to Limit Innovative Health
Lack Merit.........................................................................

29

CONCLUSION.................................................................................................

30

TABLE OF AUTHORITIES
Page

Cases
Acierno v. Barnhart,
475 F.3d 77 (2d Cir. 2007)...................................................................

7

Anobile v. Pelligrino,
303 F.3d 107 (2d Cir. 2001).................................................................

13

Bd. of Trs. Of the Univ. of Ala. V. Garrett,
531 U.S. 356 (2001)....................................................................

15, 20, 29

Bellikoflv. Eaton Vance Corp..
481 F.3d 110 (2d Cir. 2007).............................................................

14

Bloom v. N. Y. City Bd. of Educ.,
00 Civ. 2728,2003 U.S. Dist. LEXIS 5290
(Apr. 2, 2003).........................................................................................

28

Bolmer v. Oliveira,
594 F.3d 98 (2d Cir. 2001)...................................................................

17

Canales v. Sullivan,
936 F.2d 755 (2d Cir. 1991).......................................

7, 11, 15

Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S., 837 (1984). .....................................................

27, 28

City of Boerne v. Flores,
521 U.S. 507 (1997)..............................................................................

14

Consolidated Rail Corp. v. Darrone,
465 U.S. 624 (1984)..............................................................................

19

Crowder v. Kitagawa,
81 F.3d 1480 (2d Cir. 1996)............................................................

5-6, 9

TABLE OF AUTHORITIES
Page

Cases
Easly v. Snider,
36 F.3d 297 (3d Cir. 1994)....................................................................

4

English v. General Elec. Co.,
496 U.S. 72 (1990).................................................................................

11

Fleming v. State University of New York,
502 F. Supp.2d 324, (E.D.N.Y. 2007)...................................................

20

Fry v. Saenz,
98 Cal. App.th 256 (Ct. App. 3 Dist 2002)............................................

4

Garcia v. S. U.N. Y. Health Scis. Ctr. Of Brooklyn,
280 F.3d 98 (2d Cir. 2001)....................................................................

17

Goldberg v. Kelly,
397 U.S. 254 (1970)...............................................................................

16

Greene v. Locke
223 F.3d 1064 (9th Cir. 2000).................................................................

5

Harris v. Mills,
575 F.3d 66 (2d Cir. 2009)................................................................
Henrietta D. v. Bloomberg,
33 1 F.3d 26 1 (2d Cir. 2003). ......................................

2 1, 30
4, 8,27

Hines v. Davidowitz,
312 U.S. 52 (1941)................................................................................

11

Huntington Branch, NAACP v. Town of Huntington,
844 Fl2d 926 (2d Cir. 1988)..................................................................

10

Innovative Health Systems, Inc. v. City of White Plains,
117 F.3d 37 (2d Cir. 1997)............+.......................................................passim

TABLE OF AUTHORITIES
Page
Cases
In re Cmty. Bank of N. Va.,
418 F.3d 277 (3d Cir. 2005)..................................................................

10

Iselin v. Ret. Bd. of the Employees' Ret. Sys. Of R.I.,
943 A.2d, 1045 (R.I. 2008)....................................................................

8

Kungys v. United States,
485 U.S. 759 (1988)..............................................................................

24

Logan v. Z i m m e m n Brush Co.,
455 U.S. 422,429-3 1 (1982). ..................................................

16

McPherson v. Michigan High Sch. Athl. Ass'n. Inc.,
119 F.3d 453 (6thCir. 1997) (en banc) ..................................................

4,5

Melrose v. N.Y. State Dep't of Health,
05 Civ. 8778,2008 U.S. Dist. LEXIS 123180
(S.D.N.Y. Dec. 12, 2008). ....................................................

27

Mitchum v. Foster,
407 U.S. 225 (1972)..............................................................................

26

N. Y. State Dep't of Soc. Servs. v. Dublino,
413 U.S. 405, 14 (1973).......................................................................

10

Olmstead v. L.C. ex re1 Zimring,
527 U.S. 581 (1999). ......................................................... 27-28
Olson v. State of N. Y.,
04-CV-0419,2005 U.S. Dist., LEXIS 44929
(Mar. 9, 2005).......................................................................................

28

Owen v. City of Independence,
445 U.S. 622 (1980).............................................................................

26

TABLE OF AUTHORITIES
Page
Cases
Patsy v. Bd. of Regents,
457 U.S. 496 (1982)..............................................................................

26

PGA Tour, Inc. v. Martin,
532 U.S. 661 (2001).........................................................

7,8

Powell v. Nat. Bd of Med. Exam'rs,
364 F.3d 79 (2d Cir. 2004)...........................................................

19, 20, 29

Schermun v. N. Y. State Banking Dep't,
09 Civ. 2476,2010 U.S. Dist. LEXIS 26288
(S.D.N.Y. Mar. 19, 2010).................................................................

21,22,23

Sibbach v. Wilson
312 U.S. 1 (1941)..................................................................................
Syken v. State of New York,
02 Civ. 4673 2003 U.S. Dist. LEXIS 5358
(S.D.N.Y. Apr. 2, 2003).....................................................................
Tennessee v. Lane,
5541 U.S. 509, 520 (2004)...........................................................

5

21,24
14, 17,24

Tsombanidis v. West Haven Fire Dep't,
352 F.3d 565, 578 (2d Cir. 2003)....................................................... 10, 12
United States v. Brockamp,
519 U.S. 347 (1997)..............................................................................

7

United States v. City of Yonkers,
856 F.2d 444 (2d Cir. 1988)...................................................................

12

United States v. Georgia,
546U.S.151(2006) ...............................................................................

14

TABLE OF AUTHORITIES
United States v. Pettus.
303 F.3d 480 (2d Cir. 2002)..................................................................

Page
7

United States v. Smith.
499 U.S. 160 (1991).............................................................................

7

Washington v. Indiana High Sch. Athl . Ass 'n.,
181 F.3d 840 (7th Cir. 1999)..................................................................

4

Zimmerman v. Oregon Dep 't of Justice.
170 F.3d 1169 (9" Cir. 1999) cert. denied. 531 U.S. 1189 (200 1)......

29

Statutes
42 U.S.C. $ 12101 (a) (5)..............................................................................

16

42 U.S.C. $ 12101 (a) (6)..............................................................................

16

42 U.S.C. 3 12101 (a) (8)...............................................................................

16

42 U.S.C. 3 12101 (b)....................................................................................

25

42 U.S.C. 3 12131 (2)....................................................................................

4

42 U.S.C. $ 12132.........................................................................................

21

42 U.S.C. 3 12201 (e)....................................................................................

6

42 U.S.C. $ 3604(f)(3)...................................................................................

9

42 U.S.C. $ 3604(f) (3) (B)............................................................................

9

N.Y. Ret. & S.S. Law 3 605(b) (2)................................................................

6

vii

TABLE OF AUTHORITIES
Page
Regulations
34 C.F.R. $5 104.11 - 104.............................................................................

27

45 C.F.R. $$ 84.1 1 - 84.14............................................................................

27

Other Authorities
House Report No. 92-2383 (197 1). .................................................... -25
H.R. Rep. No. 71 1, 100'~
Cong. 2ndSess. At 2185 (1988)...............................

9

Black's Law Dictionary (5th Ed. 1979).............................................................

5

H.R. Rep. No. 71 1 looth
Cong. 2nd Sess. (1988).............................................

9

H.R. Rep. 101-485 (11) (1990). ..............................................
Senate Report No. 101-116 (1989)...............................................................

...

Vlll

passim

18

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
MARY JO C.
Plaintiff-Appellant,

NEW YORK STATE AND LOCAL
RETIREMENT SYSTEM,
CENTRAL ISLIP PUBLIC LIBRARY,
Defendants-Appellees.

REPLY BRIEF FOR PLAINTIFF-APPELLANT
PRELIMINARY STATEMENT
What is telling about the briefs of appellees New York State and Local
Retirement System ("NYSLRS") and Central Islip Public Library ("Library") is
how much of appellant Mary Jo C.'s brief they fail to challenge. Neither appellee
argues that Mary Jo C. failed to plead that she was disabled under the Americans
with Disabilities Act ("ADA).See Brief for Plaintiff-Appellant ("Appellant's
Br.") at 15-17. NYSLRS fails to challenge the assertion that a federal court may
order State officials to act in contravention of State law. Appellant's Br. at 21
(citing United States v. City of Yonkers, 856 F.2d 444,459 (2d Cir. 1988).
Similarly, NYSLRS fails to argue that Mary Jo C. should not be given leave to

amend her complaint to eliminate the Eleventh Amendment issue from this case.
Appellant's Br. at 29, n.9.
Likewise, the Library fails to challenge the appellant's contention that the
legislative history of Title I1 clearly demonstrates an intention to apply the
provisions of the Rehabilitation Act to Title 11. Appellant's Br. at 30-3 1.
Similarly, the Library fails to challenge the appellant's contention that the Ninth's
Circuit's interpretation of Title I1 in Zimmeman v. Oregon Dep't of Justice, 170
F.3d 1169 (9thCir. 1999), cert. denied, 53 1 U.S. 1189 (2001), is flatly at odds with
this Court's interpretation of Title I1 in Innovative Health Systems, Inc. v. City of

While Plains, 117 F.3d 37'44-46 (2d Cir. 1997). Appellant's Br. at 32-33.
This brief will establish that all the contentions of the appellees lack merit.
It will first establish that the three-month requirement to file for disability
retirement benefits is not an essential eligibility requirement because it is not
critical to the functioning of the retirement system nor adversely impacts its
purpose. This brief will then detail that well-settled precedent establishes that
statutes are considered "rules" under the ADA. Next, this brief will establish that
this Court can adhere to the principles of judicial restraint by permitting Mary Jo
C. to add as a defendant the Comptroller of the State of New York in his official
capacity, which will eliminate the Eleventh Amendment issue. However, if this
Court believes it is appropriate to address the Eleventh Amendment issue,

Congress validly abrogated immunity in connection with violations of the ADA
resulting from the failure to provide modifications to procedures because Congress
found that the failure to modify practices has resulted in discrimination and
discrimination has economically disadvantaged disabled individuals. Hence,
requiring a modification to the three-month filing period is congruent and
proportional to problems Congress sought to remedy when passing Title 11.
This brief will then establish that when interpreting Congress' intent when it
passed the ADA, it is important to understand the context in which Congress
passed the ADA. Congress was not drafting a new statute from scratch, but instead
simply intended to incorporate existing law: Titles I11 and V I I of the Civil Rights
Act of 1964 and section 504 of the Rehabilitation Act. This accounts for the
somewhat lack of clarity in the ADA. However, it is clear that Congress sought to
incorporate the provisions of section 504 of the Rehabilitation Act into Title I1 and
section 504 prohibits employment discrimination. Accordingly, the Library's
contention that this Court should not give deference to the DOJ regulations lacks
merit.

ARGUMENTS
I.

THE PLAINTIFF HAS STATED A CLAIM UNDER TITLE I1 OF THE
ADA BECAUSE THE WAIVER OF THE THREE-MONTH
PROCEDURAL RULE CONSTITUTES A REASONABLE
MODIFICATION.
A.

The Three-Month Requirement for Filing is not Critical to the
Functioning of the State Retirement System.

This Court has not yet established a broad rule defining when requirements
imposed by a state or local government constitute "essential eligibility
requirements" of a program as to render an individual eligible for protection under
Title 11 of the ADA, 42 U.S.C.

5 12131(2).l However, as one court has found, a

"program eligibility requirement which could discriminate against the disabled
may be deemed essential only if the program's purposes could not be achieved
without the requirement." Fry v. Saenz, 98 Cal.App.4th 256, 265 (Ct. App. 3 Dist.
2002); see also Washington v. Indiana High Sch. Ath. Ass'n., 181 F.3d 840, 850
(7&Cir. 1999) (rule is essential if it's waiver would be "so at odds" with purpose
behind rule that it would constitute a fundamental and unreasonable change);
McPherson v. Michigan High Sch. Ath. Ass'n. Inc., 119 F.3d 453,461 (6thCir.
1997) (en banc) (examining degree to which rule is necessary to further underlying
purposes or goals served by rule); Easly v. Snider, 36 F.3d 297,302-03 (3d Cir.

1

On a case by case basis this court has determined whether a plaintiff has satisfied
the essential requirements of a program for which he sought access. See, e.g.,
Henrietta D. v. Bloomberg, 33 1 F.3d 26 1,277 (2d Cir. 2003).

1994) (examining whether rule is essential to the purpose and nature of the
program).
NYSLRS cannot seriously dispute that the three-month rule is a procedural,
not a substantive rule, which is not critical to the administration of the retirement
benefits program. Rather, the three-month rule regulates the process for securing
one's substantive right to disability benefits. See Sibbach v. Wilson, 3 12 U.S. 1, 14
(1941) (test for whether rule is procedural is whether rule regulates procedure - the
judicial process for enforcing rights recognized by substantive law); see also
Black's Law Dictionary 1083 (5thEd. 1979) defining "procedure" as "mode of
proceeding by which a legal right is enforced, as distinguished from the substantive
law which gives or defmes the right"); Greene v. Locke, 223 F.3d 1064, 1070 (9th
Cir. 2000) (filing of a complaint prior to a certain deadline constitutes a procedural
requirement).
While the Legislature did not distinguish between substantive and
procedural criteria within Retirement and Social Security Law 5 605(b), this Court
must undertake such analysis; it is not enough to say, as does NYSLRS, that the
Legislature placed the three-month requirement in the same statute as the ten-years
of service requirement. See McPherson, 119 F.3d at 461 (that Title I1 entity
"labels a rule necessary does not make it so"; responsibility of court to
independently assess necessity of rule); Crowder v. Kitagawa, 8 1 F.3d 1480, 1485

(91h Cir. 1996) (responsibility of courts to "insure that the mandate of federal law is
achieved").
NYSLRS errs when it suggests that no principled reason exists for treating
the ten years of service requirement differently than the three-month filing
requirement. First, the ten year requirement serves a goal of providing benefits to
individuals who have contributed a particular sum of money into the system. That
no significant purpose is served by the three-month rule is illustrated by RSSL 5
605(b) itself: members of the teachers' retirement system may file for benefits
within a twelve month period. N.Y. Ret. & S.S. Law

5 605(b)(2).

Accordingly, the provision of the ADA cited by NYSLRS to support its
position does constitute persuasive authority - for Mary Jo C. The relevant portion
of the statute is as follows:
Nothing in this chapter alters the standards for determining eligibility
for benefits under State worker's compensation laws or under State
and Federal disability benefit programs.

42 U.S.C.

5 12201(e) (emphasis added). That Congress exempted eligibility

standards for modification under the ADA, but did not provide the same exemption
for state procedures indicates that Congress intended to subject procedures to
modification. This is so because '"[wlhere Congress explicitly enumerates certain
exceptions to a general prohibition, additional exceptions are not to be implied, in

the absence of a contrary legislative intent."' United States v. Pettus, 303 F.3d
480,485 (2d Cir. 2002) (quoting United States v. Smith, 499 U.S. 160, 167 (199 1).
Likewise, for two reasons it is not relevant that some courts have refused to
waive filing deadlines in different contexts for mental disability. See Brief for
State Appellee ("NYSLRS Br.") at 17. First, the ADA imposes some
administrative burdens on covered entities "that could be avoided by strictly
adhering to general rules and policies that are entirely fair with respect to the ablebodied but that may indiscriminately preclude access by qualified individuals with
disabilities." PGA Tour, Inc. v. Martin, 532 U.S. 66 1, 690 (2001).~
Second, in any case in which a party raises the issue of a waiver of a filing
requirement, numerous considerations indigenous to the case at hand impact on the
ruling. See, e.g., Canales v. Sullivan, 936 F.2d 755,758-59 (2d Cir. 1991)
(applying judicial estoppel to revive some untimely applications because of
inability of people with mental illness to challenge adverse determinations); United

States v. Brockamp, 5 19 U.S. 347,352-53 (1997) (attempting to decipher
Congressional intent to conclude Congress would not have wanted to permit
equitable tolling); Acierno v. Barnhart, 475 F.3d 77, 83 (2d Cir. 2007) (equitable
tolling not warranted because of Congressional intent to not provide such a toll);
While Martin involved an application of Title I11 of the ADA, the standards
governing Title LI are the same as Title 111. See Senate Report No. 101-116 at 42
(1989) (evincing Senate intention to apply identical concepts of discrimination
within Title I through 111).

Iselin v. Ret. Bd. of the Employees' Ret. Sys. Of R.I., 943 A.Zd, 1045, 1051 (R.I.

2008) (legislature intended to impose stringent disability requirements).
Martin provides some instruction for this case. In Martin, the Supreme
Court held that because the object of golf is to progress from tee to hole in as few
strokes as possible, shot-making is the "essence" of golf." 532 U.S. at 683-4 and
n.39. Walking is simply a method by which a player arrives at the ball and hence,
not an "indispensable feature" of golf. Id. at 685.
Similarly, no one can seriously dispute that people join a retirement system
(or open individual retirement accounts) for the purpose of obtaining some
financial security. Other than matters of convenience, people care very little about
how they obtain the money that they are owed as a result of payments made; it can
be by mail, on-line or in person.
In Henrietta D.v Bloomberg, when the plaintiffs sought services to which
they alleged they were entitled under state law, this Court defined essential
eligibility requirements of a program by the program's formal legal eligibility
requirements. 33 1 F.3d at 277. As detailed in Mary Jo C.'s initial brief, to always
define a program's essential eligibility requirements by its formal legal
requirements would eliminate the ability of a disabled individual to obtain an
accommodation to a program's requirements, regardless of how unimportant the
program requirement was to the overall functioning of the program.

B.

No Basis Exists to Exempt State Statutes From the Reasonable
Modification Provisions of Title 11.

For numerous reasons, NYSLRS errs when it argues that the reasonable
modification requirement to "rules, policies or practices' encompassed within Title
I1 does not require modifications to state statutes. "[Iln virtually all controversies
involving the ADA and state policies that discriminate against disabled persons,
courts will be faced with legislative (or executive agency) deliberation over
relevant statutes, rules and regulations." Crowder, 81 F.3d at 1485.
Accordingly, this Court has held that zoning laws are subject to the
reasonable modification requirement of Title 11. See Innovative Health Systems,

Inc. v. City of While Plains, 117 F.3d 37,44-46 (2d Cir. 1997). NYSLRS cannot
argue that Innovative Health applies to only individual "zoning decisions" made by
local officials but not zoning statutes themselves. A decision applying a zoning
law is not a rule, policy or practice. It is the application of a statute.
Next, the requirement of modifications to "rules, policies or practices"
within Title I1 is identical to the requirement of rules, policies or practices within
the Fair Housing Amendments Act of 1988 ("FHAA"), 42 U.S .C. 5 3604(f)(3)(B).
No one can seriously dispute that

5 3604(f)(3)(B) covers zoning laws. See, e.g.,

H.R. Rep. No. 71 1, 100th Cong. 2nd Sess. at 2185 (recognizing that provisions of

FHAA apply to "state or local land use and health and safety laws, regulations,

practices or decisions which discriminate against individuals with handicapsv);'

Tsombanidis v. West Haven Fire Dep't, 352 F.3d 565,571-73, 578 (2d Cir.2003).
Accordingly, the phrase "rules, policies and practices" within Title I1 encompasses
statutes because "[wlhen Congress borrows language from one statute and
incorporates it into a second statute, the language of the two acts ordinarily should
be interpreted in the same way." In re Cmty. Bank of N. Va., 418 F.3d 277,295-96
(3d Cir. 2005).
Finally, this Court has characterized the provisions of a zoning law as a
facially neutral "rule." Huntington Branch, NAACP v. Town of Huntington, 844
F.2d 926,936 (2d Cir. 1988). The contention by NYSLRS that Title I1 applies to
rules, policies and practices but not statutes constitutes the "hair splitting
arguments" that should be avoided when interpreting Title 11. Innovative Health

System, 117 F.3d at 45.
For numerous reasons, NYSLRS further errs when, relying on N. Y. State

Dep 't of Soc. Sews. v. Dublino, 4 13 U.S. 405,4 13-14 (1973), it asserts that a
conclusion that federal preemption is not warranted because a court cannot infer a
Congressional intent to preempt a filed from statutory language that expressly

Nor can NYSLRS argue that the legislative history details that only the
provisions of 42 U.S.C. 5 3604(f)(l) and(2) apply to state statutes. The legislative
history stated that subsections(f)(l) and (2), which prohibit discrimination against
handicapped individuals apply to state and local laws. However, the subsection
(f)(3) simply defines what constitutes discrimination. See 42 U.S.C. 5 3604(f)(3).

omits any reference to state statutes or state laws. NYSLRS Br. at 19. First,

Dublino involved the strain of preemption law addressing whether preemption
exists because Congress intended to exclusively occupy a field. See Dublino, 413
U.S. at 4 13. Whether or not Congress intended to occupy a field exclusively
constitutes a different preemption question from whether a state law actually
conflicts with federal law. English v. General Elec. Co., 496 U.S. 72,79 (1990).
In this latter instance, preemption exists "where state law 'stands as an obstacle to
the accomplishment and execution of the full purposes and objectives of
Congress."' Id. (quoting Hines v. Davidowitz, 312 U.S. 52,67 (1941)). In this
case, Congress sought to assure, inter alia, the equality of opportunity and
economic self-sufficiency for people with disabilities. See 42 U.S.C. 5
12101(a)(8). An application of the three-month rule within N.Y. Ret. & S.S. Law

5 605(b)(2) conflicts with these Congressional goals by imposing a rigid
procedural barrier that can result in the forfeiture of disability retirement benefits
for which disabled individuals may be eligible. See Canales, 936 F.2d at 758-59.
It make little sense to authorize modifications to zoning laws that the
legislatures have drafted and pursuant to which government officials have
determined should not be modified, but not to statutes that provide for no
discretion. First, in terms of statutory interpretation, there is no difference between
the two kinds of statutes when determining whether they are encompassed by the

term "rules, policies or practices." Next, if a court can require a state official to act
in contravention of state law, see United States v. City of Yonkers, 856 F.2d 444,
459(2d Cir. 1988),no question exists about the authority of Congress to so order a
modification. Finally, because a legislature cannot foresee every situation to which
its legislation will apply, there is less of an intrusion on state interests in those
situations in which there is no individualized opportunity to assess whether the
waiver of a state rule is warranted than when such discretion exists.
Next, once this Court recognizes that a statute is a "rule" within the meaning
of Title 11, then resolution of the issue at hand no longer becomes one of statutory
interpretation. Rather, this Court must ask when assessing the reasonableness of
an accommodation that seeks a modification to an application of state law, whether

a basis exists to differentiate between statutes that provide discretion to state
officials, and statutes that do not. Clearly, modifications to state statutes that
provide for some discretion in their application may be reasonable. See, e.g.,
Tsombanidis, 352 F.3d at 580.
If modifications to statutes that provide discretion in their application are
reasonable, it would follow that modifications to statutes that do not provide for
discretion are reasonable. When a state official exercises discretion to apply a
statute, he has taken onto account the pertinent governmental interests that warrant
an application of the statute in a particular manner that best accommodates the

competing interests of the government and the person to whom the statute has been
applied. When no discretion exists, there is no opportunity for the government
official to attempt to accommodate competing interests, particularly those
recognized under federal law. Under such circumstances, it is more appropriate to
find an accommodation reasonable when it modifies the application of a statute
that provides for no discretion than a statute that provides for discretion.
Finally, this Court should not be swayed by the contention that a waiver of
the time period for filing would amount to a re-writing of the statute. NYSLRS Br.
at 22. The statute remains in place for thousands of non-disabled individuals.
11.

ELEVENTH AMENDMENT IMMUNITY DOES NOT DEFEAT THE
PLAINTIFF'S CLAIM.
A.

Because the Plaintiff Does Not Seek Damages From NYSLRS, the
Plaintiff can Amend her Complaint to Substitute the Chief Officer of
NYSLRS in his Official Capacity.

It is well-settled that principles of judicial restraint caution against deciding
constitutional questions when resolution of such questions are unnecessary to the
disposition of the case. Anobile v. Pelligrino, 303 F.3d 107, 123 (2d Cir. 2001).
As appellant Mary Jo C. seeks injunctive relief in connection with her claim
against NYSLRS, this Court can avoid adjudication of the Eleventh Amendment
issue by permitting the appellant to amend her complaint to add twelve words in
the caption preceding the words New York State and Local Retirement System:
THOMAS DiNAPOLI, in his official capacity as the chief executive officer of."
13

It is the usual practice of this Court to grant leave to re-plead on a motion to
dismiss pursuant to Rule 12(b)(6). See, e.g., BellikofJv. Eaton Vance Corp., 48 1
F.3d 110, 118 (2d Cir. 2007). In this case, NYSLRS moved to dismiss on
jurisdictional grounds pursuant to Rule 12(b)(l). In a case such as this where the
jurisdictional issue amounts to a question of law only, no reason exists to not
permit Mary Jo C. to amend her pleading. Indeed, NYSLRS has not opposed the
request to re-plead to name as defendant Thomas DiNapoli in his official capacity.
See Appellant's Br. at 29, n.9. This amounts to at least a tacit concession that repleading is warranted.

B.

Congress Validly Abrogated the State's Eleventh Amendment
Immunity With Respect to the Provision of Disability Retirement
Benefits.
Congressional abrogation of Eleventh Amendment immunity is valid if the

conduct that Congress seeks to remedy violates both Title I1 and the Fourteenth
Amendment. United States v. Georgia, 546 U.S. 151, 159 (2006). Even if the
State's conduct does not violate the Fourteenth Amendment, the waiver of
Eleventh Amendment immunity is valid if the remedial legislation "exhibits 'a
congruence and proportionality between the injury to be prevented or remedied and
the means adopted to that end."' Tennessee v. Lane, 541 U.S. 509,520 (2004)
f
(quoting City o Boerne v. Flores, 521 U.S. 507,520 (1997). Lane makes clear that

the findings of Congress serve as a basis to support a determination that the

remedial provisions of Title I1 are warranted. 541 U.S. at 529 (congressional
findings make clear that inadequate provision of public services was an appropriate
f
f
f
subject for prophylactic legislation); Bd. o Trs. O the Univ.o Ala. v. Garrett, 53 1

U.S. 356,371 (2001) (relying upon Congressional findings to assess magnitude of
discrimination faced by disabled individuals).
At the District Court, Mary Jo C. took the position that the failure to provide
a reasonable accommodation did not violate the Constitution. However, she may
have conceded too much. This Court has recognized that an individual "suffering
from mental illness may raise a colorable due process claim when he asserts that
his mental illness prevented him from proceeding . . . in timely fashion." Canales,
936 F.2d at 758. However, since Mary Jo C. did not raise this issue below, she
will limit her Eleventh Amendment immunity argument to the congruence and
proportionality issue.
The Court found in Lane that the duty to provide an accommodation is both
consistent with the States' Fourteenth amendment obligation to provide an
opportunity to be heard in courts, and is not out of proportion to the
unconstitutional behavior found, the denial of such access that too often existed.
See 529 U.S. at 532-33. Similarly, the Fourteenth Amendment also requires that
States provide individuals with the opportunity for meaningful participation in

administrative hearings at which benefits to which they may be entitled are at
stake. See Goldberg v. Kelly, 397 U.S. 254,262-71 (1970).
Accordingly, it is not relevant that there is no fundamental right to disability
benefits. NYSLRS Br. at 12-13. That is so because the plaintiff possesses
procedural due process rights to enforce State created property rights. See Logan
v. Zimmerman Brush Co., 455 U.S. 422,429-31 (1982).

When studying the need for remedial legislation to protect people with
disabilities, Congress concluded that discrimination includes, inter alia, harms that
results from the adoption of procedures arising from indifference. Senate Report
No. 101- 116 at 29 (1989). Congress found that disabled individuals have
encountered discrimination in the form of a failure to make modifications to
existing practices and have been relegated to receipt of lesser benefits. 42 U.S.C.
12101(a)(5). Congress further found that disabled individuals are severely
disabled economically. 42 U.S .C. § 12101(a)(6). Finally, Congress recognized
that the Nation's goals are to assure equality of opportunity, full participation and
economic self-sufficiency for disabled individuals. 42 U.S.C. § 12101(a)(8).
Based upon such finding, the remedy of a modification in the form of a removal of
a procedural barrier within procedures for the receipt of disability benefits is
congruent and proportional to the problems Congress found.

When addressing this congruence and proportionality issue, NYSLRS first
errs when it argues that a finding of abrogation requires that Congress identified a
"pervasive and widespread pattern of constitutional violations with respect to the
State's provision of disability benefits programs. NYSLRS Br. at 24. Requiring
Congress to find Constitutional violations in category-specific areas would
"disarm Congress in its attempt to eliminate the harms resulting from
unconstitutional conduct by imposing an exceedingly high threshold for remedial
intervention. See Lane, 541 U.S. at 537-38 (Ginsburg, J. concurring).
Likewise, NYSLRS errs when it relies on Garcia v. S. U.N. Y. Health Scis.
Ctr. of Brooklyn, 280 F.3d 98 (2d Cir. 2001), to support its contention that
Congress lacked the power to eradicate, what the Court in Garcia referred to as the
unequal effects of disparate but rational treatment. Id. at 110. This Court in
Bolmer v. Oliveira, 594 F.3d 134 (2d Cir. 2010), recognized that Garcia "is not
applicable" to the question of the scope of Congressional authority to remedy Due
Process violations through the ADA. Id. at 148. This is so because Garcia
addressed the authority of Congress to remedy violations of the Equal Protection
Clause and the Equal Protection Clause prohibits only irrational disparate
treatment. Id. at 146. The requirement of a finding of irrationality does not exist
when focusing on discriminatory state action that violates the Due Process Clause.
See id. 147-48.

111.

BECAUSE CONGRESS INTENDED THAT TITLE I1 INCORPORATE
THE PROVISIONS OF SECTION 504 TO STATE AND LOCAL
GOVERNMENTS, TITLE I1 COVERS EMPLOYMENT.
A.

Introduction - Understanding the Framework Underlying the Passage
of the ADA.

When arguing that only Title I covers employment, the Library assumes that
Congress started from scratch and wrote a carefully crafted statute in which it
methodically created rights and obligations in one congruent instrument. Congress
did not. Rather, the ADA can be seen as Congress choosing not to "reinvent the
wheel" but instead working from a framework of existing anti-discrimination
legislation. Congress simply applied terms of previously existing legislation to
people with disabilities, with a few modifications in order to provide greater
protection than the existing legislation.
In drafting Title I of the ADA, Congress sought to afford protections to
disabled individuals already afforded to other disadvantaged groups in the
employment context. To do so, Congress adopted numerous coverage provisions
of Title VII, and its' remedial provisions. See H.R. Rep. 101-485 (11) at 54,
(1990); id. at 82 ("people with disabilities should have the same remedies available
Likewise,
under title VII of the Civil Rights Act of 1964"); 42 U.S.C. 5 1211 7 . ~
4

On the other hand, Congress believed that in terms of substantive protections, the
concepts of discrimination within the one long-standing existing antidiscrimination law, the Rehabilitation Act provided the appropriate protections.
Senate Report No. 101-116 at 23-34 (1989).
18

Title 111, which prohibits by places of public accommodation, can be viewed as an
extension of Title I1 of the Civil Rights Act of 1964 to people with disabilities. See

Powell v. Nat. Bd. of Med. Exam 'rs, 364 F.3d 79,86 (2d Cir. 2004); 42 U.S .C. Sj
12188.
On the other hand, in passing Title 11, the focus of Congress was slightly
different. Instead of extending anti-discrimination provisions that already existed
in the employment and public accommodations areas to a new protected class,
Congress sought to broaden the coverage of the one anti-discrimination law
protecting disabled individuals by extending "'the anti-discrimination prohibition
embodied in section 504 to all actions of state and local governments."'

Innovative Health Systems, 117 F.3d at 45 (quoting H.R. Rep. 101-485 (11) at 84).
B.

Title I is not the Only Provision of the ADA that Addresses
Employment Discrimination.

The Library argues that no Title other than Title I addresses employment
discrimination claims. Brief for Defendant- Appellee Central Islip Public Library
("Library Br.") at 18. It is wrong.
First, at the time of passage of the ADA, it was well-settled that section 504
of the Rehabilitation Act prohibited employment discrimination by recipients of
federal financial assistance. See, e.g., Consolidated Rail Corp. v. Darrone, 465

U.S. 624,632-33 (1984). If Title I1 applies the provisions of section 504 of the
Rehabilitation Act to state and local governments, and section 504 bars
19

discrimination in employment by entities subject to its provisions, Title I1 must
cover employment.
The Library places much weight on the dicta in Garrett in which the
Supreme Court stated "[wlhere Congress includes particular language in one
section of a statute but omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in the disparate inclusion
or exclusion." Garrett, 53 1 U.S. at 960, n. 1. However, Garrett did not address
this issue as both plaintiffs filed their ADA claims under both Title I and Title I1
and none of the parties addressed the issue of whether or not Title I1 covers
employment discrimination by public entities. Id. Moreover, the rule of statutory
construction set forth by the Court in Garrett is a presumption only.
Hence, it is not persuasive that "'only Title I specifically addresses
employment, while Title I1 is devoid of any employment provisions."' Library Br.
at 28 (quoting Fleming v. State University of New York, 502 F . Supp.2d 324, 33 1

(E.D.N.Y. 2007) (other internal quotes omitted). That is so because Title I1 is
devoid of provisions relating to any area of coverage. Congress chose not to list all
actions of state and local governments that Title I1 prohibits but rather extended the
anti-discrimination prohibition embodied in section 504 to all actions of state and
local governments. H.R. Rep. 101-485(II) at 84.

Likewise, the dicta in Harris v. Mills, 575 F.3d 66 (2d Cir. 2009) and
Powell, 364 F.3d at 79, in which this Court recognized that Title I1 requires access
to services and programs under Title I1 is also not persuasive authority. Harris,
572 F.3d at 73; Powell, 364 F.3d at 85. The setting forth of these governing
principles was appropriate to assess the merits of the plaintiff's legal claims based
upon their factual presentations; at no time did the parties raise the present issue.
Mary Jo C. does not dispute the Library's contention that its actions viz-a-viz
Mary Jo Co. do not amount to "services, programs or activities" within Title 11.
However, in so arguing, the Library ignores the remaining language within Title 11,
which contains a separate proscription against discrimination by entitles covered
by Title I I . ~This Court has interpreted the phrase "or be subjected to
discrimination7'to constitute "a catch-all phrase that prohibits all discrimination by
a public entity regardless of the context." Innovative Health Systems, 117 F.3d at
45.

Title I1 provides as follows:
Subject to the provisions of this subchapter, 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.
42 U.S.C. § 12132.

C.

The Weight of Second Circuit District Court Authority is
Wrong.

Mary Jo C. concedes that the weight of district court authority within this
Circuit holds that Title I1 does not cover employment discrimination claims. Mary
.To will specifically addresses the rationale set forth by these courts to detail the
reasoning of these opinions are flawed.
1.

The Text and Structure of the ADA Does not Warrant the Conclusion that
Only Title I Covers Employment Discrimination.

Some courts have concluded that the text of the ADA warrants the
conclusion that only Title I covers employment claims because services, programs
or activities" generally do not encompass employment. See, e.g., Syken v. State of
New York, 02 Civ. 4673,2003 U.S. Dist. LEXIS 5358 "25-27 (S.D.N.Y. Apr. 2,
2003); see also Scherman v. N.Y. State Banking Dep't, 09 Civ. 2476,2010 U.S.
Dist. LEXIS 26288 * 29-30 (S.D.N.Y. Mar. 19,2010) (same). However, this
rationale ignores that in passing Title 11, Congress wanted to apply the
Rehabilitation Act to public entities and Congress simply adopted the language of
section 504, almost verbatim, when passing Title 11. It also ignores this Court's
holding in Innovative Health that "or be subjected to discrimination by" state and
local governments covers all forms of discrimination, not just discrimination
occurring in programs, services or activities." 117 F.3d at 44-45.

Likewise, the court in Melrose v. N. Y. State Dep ' t of Health, 05 Civ. 8778,
2008 U.S. Dist. LEXIS 123180 (S.D.N.Y. Dec. 12,2008), noted that 42 U.S.C.

5 1213l(2) defines an otherwise qualified individual not in terms of employment
criteria but whether the individual meets the essential criteria for services or
participation in programs or activities. Id. at * 24. However, this ignores that this
language is consistent with this Court's interpretation of Title I1 in Innovative
Health. Section 1213l(2) contains language that is simply consistent with both

language within section 504 and case law interpreting section 504. Certainly,
participating in programs can include working in them. The language within
1213l(2) is clearly not more persuasive than the legislative history of Title 11,
which details that Congress wanted to pass Title I1 for the express purpose of
expanding coverage the Rehabilitation Act.
Some Courts have also relied on the structure of the ADA to conclude that
Title I1 does not cover employment. See, e.g., Scherman at * 29. They have
concluded that Title I clearly covers employment while Title I1 is silent. However,
this ignores that Congress clearly wanted to expand coverage of the Rehabilitation
Act and sought to prohibit all forms of discrimination by state and local
governments and chose not to list the specific forms of discrimination. See
Innovative Health, 117 F.3d at 45.

Courts have also concluded that a finding that Title I1 covers employment
discrimination renders Title I redundant, at least as to public employees. See, e.g.,

Syken at * 27-28. Such a construction of Title I1 violates the "'cardinal rule of
statutory construction that no provision should be construed to be entirely
redundant."' Syken at * 28 (quoting Kungys v. United States, 485 U.S. 759,778
(1988)). This rationale too does not constitute particularly persuasive authority.
First, the proffered interpretation of Title I1 does not render Title I entirely
redundant. Moreover, the rationale of Syken and Scherman assumes that in passing
the ADA, Congress was simply drafting an anti-discrimination law from scratch. It
was not. See supra at 18-19. Some overlap exists between the coverage provided
by Title VII and the Fourteenth Amendment, the latter of which Congress sought
to enforce through Title 11. See Lane, 541 U.S. at 522-23. Finally, to the extent
that Congress thought about the matter, it may have wanted to give public
employees the option of seeking the assistance of the Equal Employment
Opportunity Commission or proceeding directly to court.

2.

That Title I1 Does not Require Exhaustion of Administrative
Remedies is not Persuasive Authority.

Some Courts have concluded that the absence of an exhaustion of
administrative remedies requirement within title I1 warrants the conclusion that
Title I1 does not cover employment. See, e.g., Syken at * 28. These courts have
concluded that such an interpretation enables plaintiffs to escape a requirement
24

imposed by Congress. Id. However, this assumes that Congress wanted to impose
an exhaustion requirement all disability employment discrimination plaintiffs. The
more likely scenario is that Congress simply wanted to apply the protections of
Title VII to disabled individuals. See supra at 18-19.
Furthermore, this rationale assumes that Congress imposed the procedural
requirement to limit prompt access to courts. This was not the case. Rather,
Congress created these enforcement procedures to strengthen the ability of the
Equal Employment Opportunity Commission ("EEOC") to reduce discrimination
in the workplace. House Report No. 92-238 at 3 (1971). A comparatively brief
statute of limitations period for Title I claims serves to enhance the ability of the
EEOC to investigate and remedy claims of discrimination. The short limitations
period prevents evidence from becoming stale or otherwise difficult to gather, a
necessary tool for an agency charged with remedying discrimination around the
country. This concern does not exist when a disabled individual files an individual
claim.
On the other hand, the brief limitations period significantly weakens one
purpose of the ADA, to provide a clear and comprehensive mandate to eliminate
discrimination against people with disabilities. 42 U.S.C. § 12101(b). This is so
because the shorter limitations period in Title I will enable state and local
governments to escape liability when a plaintiff fails to meet the shorter limitations

period, which in turn, eliminates the deterrent aspect of otherwise available
damages remedy. See Owen v. City of Independence, 445 U.S. 622,651 (1980).
Furthermore, not requiring exhaustion is consistent with how Congress has
generally treated attempts to enforce constitutional rights. Just as Congress passes
Title I1 to enforce the provisions of the Fourteenth Amendment, see Lane, 541 U.S.
at 522-23, Congress passed 42 U.S.C. 9 1983 for the same reason. See Mitchum v.
Foster, 407 U.S. 225,240 (1972). It is well-settled that 9 1983 does not require the
exhaustion of administrative remedies. See Patsy v. Bd. of Regents, 457 U.S. 496,
5 12 (1982). Hence, not requiring exhaustion is consistent with how Congress has
dealt with its most other significant attempt to enforce the Fourteenth Amendment.
3.

That Congress Created Different Regulatory Authority for
Titles I and I1 Does not Justify the Conclusion that Congress
Wanted to Exclude Employment Discrimination From Title I1
Coverage.
-

Some Courts have justified their conclusion that Title I1 does not cover
employment discrimination on the ground that Titles I and I1 create different
regulatory authority. E.g., Syken at * 29. These courts have assumed that Congress
would not have wanted to subject state and local governments to possibly
conflicting regulatory authority. See id. To the extent that Congress gave this
matter any thought, Congress could have just as well concluded that both the
Department of Education and the Department of Health and Human Services
possessed regulatory authority over the Rehabilitation Act and these agencies
26

worked in tandem to develop congruent regulations. Compare 34 C.F.R. $9

104.11-104.14 with 45 C.F.R. $9 84.11-84.14.
4.

The Linking of the Rehabilitation Act to Title I is not
Persuasive Authority.

Some courts have concluded that the linking of Title I standards to the
Rehabilitation Act evinced intent by Congress to limit employment discrimination
to Title I. See Fleming v. State Univ. of N. Y., 502 F. Supp. 324, 331 (E.D.N.Y.

2007). However, it is understandable that Congress would reference such
standards. In passing Titles I and 111, Congress set forth specific provisions as to
what constitutes discrimination. See 42 U.S.C. $9 12112 and 12182. Congress
intended that Title I1 encompass the identical protections. See H.R. Rep. 101-

485(II) at 84. Under the circumstances, it made sense for Congress to reference
standards that are more clearly set forth on paper.

D.

The Department of Justice Regulations Withstand Chevron Analysis.
-

The Library has argued that this Court should disregard the views of the
DOJ pertaining to the scope of Title I1 on the ground that these views cannot
withstand scrutiny under the criteria of Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984). In so arguing the Library fails to
explain why this Court should ignore its previous willingness to seek guidance
from these regulations. See Henrietta D., 331 F.3d at 273-74. See also Olmstead
v. L.C. ex re1 Zimring, 527 U.S. 581,598-99 (1999) (internal quotes omitted) ("it is

enough to observe that the well-reasoned views of the agencies implementing a
statute constitute a body of experience and informed judgment to which courts and
litigants may properly resort for guidance").
However, beyond this apparent deference, if this Court wishes to strictly
apply the Chevron criteria, it is clear that this Court should adopt the views of DOJ
and reject the contentions of the Library. The Library first argues that the plain
text of Title I1 establishes a clear intent of Congress to exclude employment from
Title I1 coverage. This appears to be wishful thinking.
Nothing in Title I1 specifically excludes employment. Likewise, Title I does
not contain any language that states that it is the sole remedy for employment
discrimination. Indeed, one must ask if the statutory language was so clear, why
did numerous courts rule that Title I1 covers employment, often without relying on
the DOJ regulations to support its conclusion? See, e.g., Bloom v. N. Y. City Bd. of

Educ., 00 Civ. 2728,2003 U.S. Dist. LEXIS 5290 * 30-33 (Apr. 2,2003); Olson v.
State of N. Y., 04-CV-0419,2005 U.S. Dist. LEXIS 44929 * 12-13 (Mar. 9,2005).
Under these circumstances, the words of the ADA do not come close to
establishing an "unambiguously expressed intent of Congress." Chevron, 467 U.S.
at 843.
The Library's reliance upon the analysis set forth in Z i m m e m n v. Oregon

Dep 't of Justice, 170 F.3d 1169 (9thCir. 199), cert. denied, 53 1 U.S. 1189 (2001),

to argue that the language of Title I1 is clear is equally unavailing. As detailed in
Mary Jo C.'s initial brief, the Ninth Circuit in Zimmemn has interpreted the
phrase "or be subjected to discrimination" to encompass discrimination when the
government provides services or engages in programs or activities. Zimmemn,
170 F.3d at 1175. However, this Court has held that this phrase encompasses
discrimination in any context. Innovative Health, 117 F.3d at 45. When parsing
the language of Title 11, the Ninth Circuit fails to recognize that Congress simply
tracked the language of the Rehabilitation Act. Accordingly, under these
circumstances, the DOJ interpretation of Title I1 "is based on a permissible
construction of the statute." Chevron, 467 U.S. at 843.6

E.

The Library's Attempts to Limit Innovative Health Lack Merit.

For numerous reasons, the Library errs when it asserts that Innovative
Health is inapposite. Library Br. at 24. First, Garrett does not weaken Innovative
Health. Garrett never addressed the scope or contents of Title I1 in any way. See
Garrett, 531 U.S. at 363-74. Next, while this Court's opinions in Powell and
Harris recognize that Title I1 requires State and local governments to make
reasonable accommodations in the provision of services, Powell, 364 F.3d at 85;
Harris, 572 F.3d at 74, these decisions never addressed to what extent, if any, Title
I1 covers other activities.

his is particularly true in light of the legislative history. See supra at 19.

29

CONCLUSION
For the reasons given in this brief and Mary Jo C.'s initial brief, this Court
should vacate the judgment of the district court and remand this case to this district
court. If this Court believes that Mary Jo C. has not set forth enough facts to
establish that she is disabled under the ADA, but has otherwise raised meritorious
claims, this Court should grant her leave to re-plead. If this Court believes that
Congress has not validly abrogated Eleventh Amendment immunity but that Mary
Jo C. has otherwise set forth a valid ADA claim, this Court should grant leave to
re-plead as to enable Mary Jo C. to name the Comptroller in his official capacity in
place of NY SLRS.
Dated: Central Islip, New York
December 5,20 11
WILLIAM M. BROOKS
Attorney for Plaintzff-Appellant
Mental Disability Law Clinic
Touro College
Jacob D. Fuchsberg Law Center
225 Eastview Drive
Central Islip, New York 11722
(63 1) 76 1-7086

CERTIFICATE OF COMPLIANCE
William M. Brooks, the attorney for the appellant, certifies pursuant to 28
U.S.C. 5 1746 and Fed.R.App.P. 32(a)(7)(C):

I used the tool format of Microsoft word, the computer program to type this
brief, to obtain a word count. The program stated that this brief was 6898 words .
Dated: Central Islip, New York
December 5 , 2 0 11
WILLIAM M. BROOKS