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]

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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

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