C. v. New York State and Local Retir

Filing 62

BRIEF, on behalf of Appellant Mary Jo C., FILED. Service date 08/30/2011 by CM/ECF.[378841] [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.

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 Plaintzfl-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
STATEMENT OF SUBJECT MATTER AND APPELLATE
JURISDICTION.............................................................................................

1

QUESTIONS PRESENTED.............................................................................

2

STATEMENT OF THE CASE.........................................................................

3

RELEVANT STATUTORY AND ADMINISTRATIVE SCHEMES.............

7

STATEMENT OF FACTS ................................................................................

8

SUMMARY OF ARGUMENTS....................................................................... 12
APPLICABLE STANDARDS GOVERNING REVIEW OF
DISTRICT COURT DECISION..................................................................... 15
ARGUMENTS................................................................................................... 16
I.

CONGRESS VALIDLY ABROGATED ELEVENTH
AMENDMENT IMMUNITY BELONGING TO NYSLRS.. ...... 16

A.

The Failure to Provide a Reasonable Accommodation
in the Form of a Waiver of the Three Month Filing
Requirement to Obtain Disability Retirement Benefits
Violated the ADA ...............................................................
1.

2.

17

Mary Jo C. Was Disabled Under the ADA
Because Mental Illness Substantially
Impaired Her Ability to Work..................................

17

If the "Otherwise Qualified" Requirement of the
ADA Even Applies in this Case, Mary Jo C.
Was an otherwise Qualified Individual Because
She Contracted With NYSLRS to be a Member
And Worked at the Time She Was a NYSLRS
Member....................................................................

20

TABLE OF CONTENTS
Page
3.

A Waiver of The Three Month Period
For Filing For Disability Retirement
Benefits Constitutes a Reasonable
Accommodation Under the ADA ...........................
i.

..

11.

B.

11.

Because The Requirements of Federal
Law Supersede State Law, an
Accommodation That Requires State
Officials to Act in Contravention of
State Law is Not Inherently
Unreasonable.. ..............................................
A Waiver of the Three Month Period
For Filing For Disability Retirement
Benefits Constitutes a Reasonable
Accommodation Because it Does Not
Require NYSLRS to Alter Its Substantive
Eligibility Criteria..........................................

Congress Validly Abrogated Eleventh Amendment
Immunity Because Providing the Requested
Accommodation to Mary Jo C. is a Proportional
Remedy to the Problems That Congress Found .................

THE LEGISLATIVE HISTORY OF THE ADA AND
DEFERENCE TO THE ATTORNEY GENERAL
COMPEL THE CONCLUSION THAT TITLE I1 COVERS
EMPLOYMENT DISCRIMINATION BY PUBLIC
ENTITIES...............................................................................................

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

TABLE OF AUTHORITIES
Page

Cases
Ashcroft v. Iqbal,
129 S.Ct. 1937 (2009)..............................................................................15
Allen v. Westpoint-Pepperell Inc.,
945 F.2d 40 (2d Cir. 1991)..................................................................... 8, 16
Arista Records LLC v. Doe 3,
604 F.3d 110 (2d Cir. 2010).. ................................................................... 17
Aughe v. Shalala,
885 F. Supp. 1428 (W.D. Wash. 1995).......................................................6, 28
Barber v. Colorado Dep't of Revenue,
562 F.3d 1222 (loLh i r2009)...................................................................24
~
.
Bd. of Trs. of Univ. of Ala. v. Garrett,
541 U.S. 356 365 (2001). ........................................................... 29, 30
Bell Atlantic Corp. v. Twombly.
550 U.S. 544 (2007) ..................................................................... 15, 17, 19
Bellikof v. Eaton Vance Corp.,
481 F.3d 110 (2d Cir. 2007) .................................................................... 20
Bledsoe v. Palm Beach County Cty. Soil & Water
Conservation Dist.,
133 F.3d 816 (11th Cir. 1998)............................................................... 34, 36
Bolmer v. Oliveira,
595 F.3d 134 (2d Cir. 2010). .................................................................... 30
Borkowski v. Valley Cent. Sch. Dist.,
63 F.3d 131 (2d Cir. 1995).................................................................. 26, 27

TABLE OF AUTHORITIES
Page

Cases
Bragdon v. Abbott,
524 U.S. 624 (1998). .............................................................................. 34
Capobianco v. City of New York,
422 F.3d 47 (2d Cir. 2005). ....................................................................... 17
Castellano v. City of New York,
142 F.3d 58 (2d. Cir. 1998)........................................................................ 21
Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc.
467 U.S. 837, (1984). .............................................................................. 34
Consolidated Rail v. Darrone,
465 U.S. 624 (1984). ...............................................................................
33
Crosby v. Nat'l Foreign Trade Council,
530 U.S. 363 (2000)...........................................................................25, 26
Crowder v. Kitagawa,
81 F.3d 1480 (9th Cir. 1996)......................................................................25
Disability Advocates Inc., v. Paterson,
653 F. Supp. 2d 184 (E.D.N.Y. 2009). ......................................................... 27
Duncan v. Walker,
533 U.S. 167 (2001)............................................................................... 33
Fleming v. State University of New York,
502 F. Supp.2d 324 (E.D.N.Y. 2007). ...........................................................35
Galusha v. New York State Dep't of Evtl Conservation,
27 F. Supp.2d 117 (N.D.N.Y. 1998).. ..................................................... 2 5 ,26
Hargrave v. State of Vermont,
340 F.3d 27 (2d Cir. 2003). ....................................................................... -23

TABLE OF AUTHORITIES
Page

Cases
Harris v. Mills,
572 F.3d 66, (2d Cir. 2009). ................................................................... 15, 28
Henrietta D. v. Bloomberg,
331 F.3d 261 (2d Cir. 2003), cert. denied,
541 U.S. 936 (2004). ...................................................................... 22, 27, 32
Huntington Branch NAACP v. Town of Huntington,
844 F.2d 926 (2d Cir. 1988)........................................................... .23- 24,26
Innovative Health Sys. Inc. v. City of White Plains,
117 F.3d 37 (2d Cir. 1997).................................................................... 32, 36
Leblanc v. Cleveland,
198 F.3d 353 (2d Cir. 1999)........................................................................ 19
Levitin v. Paine Webber,
159 F.3d 698 (2d Cir. 1998)....................................................................... 26
Lyons v. Legal Aid Soc.,
68 F.3d 1512 (2d Cir. 1995).......................................................................29
Mack v. South Bay Beer Distribs.,
798 F.2d 1279 (9th Cir. 1986)....................................................................... 8
Matson v. Bd. of Educ. Of the City Sch. Dist of N. Y.,
63 1 F3d 57, (2d Cir. 201 1)........................................................................... 8
Matter of Grossman v. McCall,
262 A. D. 2d 923 (3d Dep't 1999).................................................................29
McGary v. City of Portland,
386 F.3d 1259 (9thCir. 2004). ........................................................... ..24, 25, 27

TABLE OF AUTHORITIES
Page
Cases
Meyer v. Nebraska,
262 U.S. 390 (1923). ................................................................................ 30
Olmstead v. L. C. ex rel.Zimring,
527 U.S. 581 (1999)............................................................................ 27, 34
Pottgen v. Missouri State High Sch. Activities Association,
40 F.3d 926 (8th Cir. 1994).................................................................... 2 1,28
Quinones v. City of Evanston, Illinois,
58 F.3d 275 (7th Cir. 1995)................................................................. 25, 26-27
Reg '1 Econ. Comty. Action Program v. City of
Middletown ("RECAP"),
294 F.3d 35 (2d Cir. 2002)................................................................... 24, 26
Ronzani v. Sanoj?, S .A.,
899 F.2d 195 (2d Cir. 1990).......................................................................20
Rothchild v.Grottenthaler,
907 F.2d 286 2d Cir. 292 1990)................................................................. 28
Ryan v. Grae & Rybicki, P.C.,
135 F.3d 867 (2d Cir. 199.8)..................................................................... 17
Sandison v. Michigan High Sch. Athletic Ass'n,
64 F.3d 1026 (6th Cir. 1995)..................................................................... 21
Shipping Fin. Servs. C o y . v. Drakos.
140 F.3d 129 (2d Cir. 1998)...................................................................... 16
Smaldone v. Senkowski,
273 F.3d 133 (2d Cir. 2001)
cert. denied, 535 U.S. 1017 (2001)............................................................... 33

TABLE OF AUTHORITIES
Page

Cases
State Employees Bargaining Agent Coalition v. Rowland,
494 F.3d 7 1 (26 Cir. 2007). ........................................................................ 15
Tennessee v. Lane.
54 1 U.S. 509 (2004). .........................................................................-30, 3 1
Thomas v. Westchester County Care Corp.,
232 F. Supp. 2d 273 (S.D.N.Y. 2002). ...........................................................8
Toyota Motor Mfg. Ky. v. Williams,
534 U.S. 184 (2002)................................................................................ 18
Transport Workers Union v. New York City Transit Authority,
342 F. Supp.2d 160 (S.D.N.Y. 2004)............................................................. 35
Tsombanidis v. West Haven Fire Dept.,
352 F.2d 565 (2d Cir. 2003). ...................................................................... 23

U.S. Airways v. Bamett,
535 U.S. 39 1 (2002)................................................................................ 26
United States v. City of Yonkers,
856 F.2d 444 (2d Cir. 1988)................................................................... 23, 25
United States v. Georgia,
546 U.S. 151 (2006)............................................................................. 16-17
Wright v. Giuliani,
230 F.3d 543 (2d Cir. 2000). ....................................................................... 28
Zimmerman v. Oregon Dept. of Justice,
170F.3d 1169 (9th Cir. 1999)............................................................... 35, 36
34,

vii

TABLE OF AUTHORITIES
Page

Cases
State Employees Bargaining Agent Coalition v. Rowland,
494 F.3d 7 1 (26 Cir. 2007). ........................................................................ 15
Tennessee v. Lane.
54 1 U.S. 509 (2004). .........................................................................-30, 3 1
Thomas v. Westchester County Care Corp.,
232 F. Supp. 2d 273 (S.D.N.Y. 2002). ...........................................................8
Toyota Motor Mfg. Ky. v. Williams,
534 U.S. 184 (2002)................................................................................ 18
Transport Workers Union v. New York City Transit Authority,
342 F. Supp.2d 160 (S.D.N.Y. 2004)............................................................. 35
Tsombanidis v. West Haven Fire Dept.,
352 F.2d 565 (2d Cir. 2003). ...................................................................... 23

U.S. Airways v. Bamett,
535 U.S. 39 1 (2002)................................................................................ 26
United States v. City of Yonkers,
856 F.2d 444 (2d Cir. 1988)................................................................... 23, 25
United States v. Georgia,
546 U.S. 151 (2006)............................................................................. 16-17
Wright v. Giuliani,
230 F.3d 543 (2d Cir. 2000). ....................................................................... 28
Zimmerman v. Oregon Dept. of Justice,
170F.3d 1169 (9th Cir. 1999)............................................................... 35, 36
34,

vii

TABLE OF AUTHORITIES
Page
Constitutional Amendments
NY Const . art. V. 3 7 ....................................................................................... 31
U.S. Const . art. VI. C1. 2 .................................................................................... 23

Statutes
42 U.S.C. 5 12101 (a) (6) ................................................................................. 26
42 U.S.C. 3 1211l(2)........................................................................................ 8
42 U.S.C. 5 12112(a)........................................................................................ 7
42 U.S .C. 3 12112(b)(5)(A)..............................................................................-7-8
42 U.S.C. 5 12131(1)......................................................................................... 7
42 U.S.C. 5 12131(2).......................................................................................... 7
42 U.S.C. 5 12132.................................................................................... 7. 35-36
42 U.S.C .. 3 12202.......................................................................................... 16
N.Y. Ret . & S.S. Law 5 605(b)(2).......................................................................... 8
N.Y. Ret . & S.S. Law 5 605(c).............................................................................. 8

Regulations
35 C.F.R. 5 35.130 (b)(7)................................................................................ 7, 27
28 C.F.R. 5 35.140.......................................................................................... 34

...

Vlll

TABLE OF AUTHORITIES
Page

Other Authorities
Americans with Disabilities Act: Title I1 Technical Assistance Manual
$ I1 .3.6100. General Illustration 2 (1993) ............................................................... 29

Letter of Deputy Comptroller. Bill Jacket L. 1981. ch . 756 .......................................... 29
Letter of Superintendent of Insurance. Bill Jacket L. 1981. ch . 756 ................................ 30
Senate Report No . 101-116 (1989) .................................................................. 3 1. 33

TABLE OF AUTHORITIES
Page
Constitutional Amendments
NY Const . art. V. 3 7 ....................................................................................... 31
U.S. Const . art. VI. C1. 2 .................................................................................... 23

Statutes
42 U.S.C. 5 12101 (a) (6) ................................................................................. 26
42 U.S.C. 3 1211l(2)........................................................................................ 8
42 U.S.C. 5 12112(a)........................................................................................ 7
42 U.S .C. 3 12112(b)(5)(A)..............................................................................-7-8
42 U.S.C. 5 12131(1)......................................................................................... 7
42 U.S.C. 5 12131(2).......................................................................................... 7
42 U.S.C. 5 12132.................................................................................... 7. 35-36
42 U.S.C .. 3 12202.......................................................................................... 16
N.Y. Ret . & S.S. Law 5 605(b)(2).......................................................................... 8
N.Y. Ret . & S.S. Law 5 605(c).............................................................................. 8

Regulations
35 C.F.R. 5 35.130 (b)(7)................................................................................ 7, 27
28 C.F.R. 5 35.140.......................................................................................... 34

...

Vlll

TABLE OF AUTHORITIES
Page

Other Authorities
Americans with Disabilities Act: Title I1 Technical Assistance Manual
$ I1 .3.6100. General Illustration 2 (1993) ............................................................... 29

Letter of Deputy Comptroller. Bill Jacket L. 1981. ch . 756 .......................................... 29
Letter of Superintendent of Insurance. Bill Jacket L. 1981. ch . 756 ................................ 30
Senate Report No . 101-116 (1989) .................................................................. 3 1. 33

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.

BRIEF FOR PLAINTIFF-APPELLANT
STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION
This is a civil rights lawsuit in which jurisdiction existed in the district court
pursuant to 28 U.S.C. § 1331, which authorizes jurisdiction of civil actions arising
under the United States Constitution. This Court has jurisdiction to hear this appeal
pursuant to 28 U.S.C. 5 1291 as plaintiff-appellant Mary Jo C. appeals a final
judgment. The district court entered a final judgment on behalf of defendantappellees New York State and Local Retirement System and Central Islip Public
Library on May 6,201 1, A-5 ;A-8. Appellant Mary Jo C. filed her notice of
appeal on May 3 1 20 11. A-5; A-7.

QUESTIONS PRESENTED
l(a). Has a former employee plausibly alleged that she is disabled under the
Americans with Disabilities Act when she alleged that she has suffered from
mental illness her entire adult life, has only worked intermittently since 1986, and
was fired from her job because of her behaviors arising out of her mental illness?
l(b). Does evidence that the employee lost another job because she could
not follow directions as a result of her mental illness, and throughout her life
manifested delusions, hallucinations, mood swings and deterioration of self-scare
skills provide additional support for a finding that she was disabled under the
Americans with Disabilities Act?

2.

Under Title I1 of the Americans with Disabilities Act, is a former

employee rendered not "otherwise qualified to seek an accommodation in the
form of a waiver of the time period for filing for disability retirement benefits by
virtue of her not timely filing for the benefits in the first place?

3.

Is a requested accommodation under the Americans with Disabilities

Act that requires a state or local government official to act in contravention of state
law per se unreasonable?

4.

If such an accommodation is not, does the request to waive a three-

month period for the filing of disability retirement benefits create an undue burden

on the New York State and Local Government Retirement System as to render the
accommodation unreasonable?

5.

May a disabled individual file an employment discrimination claim

against a local governmental entity under Title I1 of the Americans with
Disabilities Act, or must the individual file her discrimination claim under Title I?
STATEMENT OF THE CASE
Appellant Mary Jo C. has suffered from mental illness for approximately
forty years, since she was a teenager. Her illness led to her termination by appellee
Central Islip Public Library ("Library"). As a result of her illness, Mary Jo C. will
never work again.
State law required Mary Jo C. to file for disability retirement benefits within
three months of her last date of employment. However, at that time, she lacked the
ability to apply for the benefits because she was too impaired by her disability to
do so. Because of this, an within the permissible statutory time frame, the brother
of Mary Jo C. asked the Library to file for disability retirement benefits on behalf
of Mary Jo C., as it was permitted to do. The Library refused.
When her clinical condition improved, Mary Jo C. applied for disability
retirement benefits. However, the time to apply for benefits had expired. As a
result, appellee New York State and Local Government Retirement System
("NYSLRS") denied the application on the ground that Mary Jo C. failed to make a

timely application. Subsequently, Mary Jo C. sought an accommodation in the
form of a waiver of the filing period. NYSLRS never responded to this request,
but notified Mary Jo C. that she could appeal the determination, which she did.
However, the hearing officer concluded that no basis in law existed for extending
the filing period.
Mary Jo C. then filed this lawsuit. She asserted that the failing to waive the
filing requirements violated the Americans with Disabilities Act ("ADA") because
it constituted a failure to provide a reasonable accommodation. Mary Jo C. sought
equitable relief for this claim.
Mary Jo C. further asserted a damages claim against the Library, a public
entity under Title I1 of the ADA, in which she alleged that the failure to file an
application for disability retirement benefits also constituted a failure to provide a
reasonable accommodation. Mary Jo C. filed this claim pursuant to Title I1 of the
ADA, as the time to exhaust her administrative remedies had expired.
NYSLRS moved to dismiss this complaint pursuant to Fed.R.Civ.P. 12(b)(6)
on the ground that the Eleventh Amendment barred claims for injunctive relief.
The Library moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) on the ground that
the ADA required all employees, including former employees, to file all
discrimination claims pursuant to Title I only. The district court (Feuerstein, J.)

granted both motions in an opinion reported at 201 1 U.S. Dist. LEXIS 49567
(E.D.N.Y. May 5,201 1).
The court first recognized that the determination of whether Congress
validly abrogated Eleventh Amendment immunity required a determination of the
following questions: what conduct of the state violated Title I1 of the ADA; (2) if
the court finds a violation of Title 11, whether the conduct also violated the
Fourteenth Amendment; and, (3) if the conduct violated Title I1 of the ADA but
not the Fourteenth Amendment, whether Congress's purported abrogation of
Eleventh Amendment immunity is nevertheless valid. A-21. Even though neither
NYSLRS nor the Library asserted that Mary Jo C. was not disabled under the
ADA, A-55 - A-65; A-77 - A-83, the court then concluded that state conduct did
not violate the ADA because Mary Jo C. failed to plead facts that suggested that
the mental illness from which she suffered substantially limited a major life
activity, which meant she was not disabled under the ADA. A-22.
The court further noted that Mary Jo C. sought an accommodation that
NYLRS lacked authority to grant. A-26. The court then held that Mary Jo C. did
not seek a reasonable accommodation because "[rlequiring the State defendant to
violate state law is not a reasonable accommodation as a matter of law." Id. In so
holding, the court distinguished cases in which a plaintiff sought a modification to
rules, policies or practices to which a government official had discretion to waive;

as no such discretion existed in this case. A-25 - A-26. The court failed to
provide a justification for this distinction other than citing to Aughe v. Shalala, 885

F. Supp. 1428, 1431-33 (W.D. Wash. 1995), a non-binding district court case from
another circuit, in which the court concluded that the waiver of a statutory
provision would constitute a fundamental alteration. A-26. As a result, Mary Jo
C. failed to meet the essential eligibility requirements for the receipt of disability
benefits under state law and hence, was not a qualified individual with a disability
under the ADA. A-27
The district court then concluded that Title I serves as the sole remedial
provision within the ADA for claims related to terms, conditions and privileges of
employment. A-32. The court found that the Supreme Court implied that it would
find that Title I1 did not cover employment discrimination. The court first cited
language from Tennessee v. Lane, 541 U.S. 509 (2004), in which the court noted
that "[tlhe ADA "forbids discrimination against persons with disabilities in three
major areas of public life: employment, which is covered by Title I *

* *, public

services, programs and activities, which are the subject of Title 11; and public
accommodations, which are covered by Title 111.'" Id. (quoting Lane, 541 U.S at
516-17). The court noted that the Supreme Court has noted that "'Title I of the
ADA expressly deals with"' claims of employment discrimination. Id. (quoting

Board of Trustees of University of Alabama v. Garrett, 53 1 U.S. 356, 360 n. 1
(2001).
RELEVANT STATUTORY AND ADMINISTRATIVE SCHEMES
Under Title I1 of the ADA, a public entity includes any local government,
and any department, instrumentality or agency of a local government. 42 U.S.C.

5

1213l(1). Under Title 11, a public entity shall not exclude from participation, or
deny benefits of the services, programs or activities operated by the entity, to a
qualified individual with a disability by reason of such disability. 42 U.S.C.

5

12132.
A "qualified individual with a disability" includes an individual with a
disability who, with reasonable modifications to rules, policies or practices, meets
the essential eligibility requirements for the receipt of services, or participation in
the programs provided by the public entity. 42 U.S.C.

5 1213l(2).

A public entity

must make reasonable modifications in policies, practices and procedures when the
modifications are necessary to avoid discrimination on the basis of disability,
unless the public entity can demonstrate that the modification would fundamentally
alter the nature of the activity. 28 C.F.R.

5 35.130(b)(7).

Title I of the ADA prohibits discrimination because of disability in regard to,
inter alia, terms, conditions and privileges of employment. 42 U.S.C. 5 12112(a).
Discrimination includes not making reasonable accommodations to the known

mental disabilities of an otherwise qualified individual with a disability, unless the
proposed accommodation would impose an undue hardship on the operation of the
business of covered entity. 42 U.S.C.

5

12112(b)(5)(~).'

If a state or local government employee is physically or mentally
incapacitated for the performance of gainful employment, and is so incapacitated
that she ought to be retired, she is entitled to disability retirement benefits. N.Y.
Ret. & S.S. Law 5 605(c). The employee must file a disability retirement
application within three months of the employee's last day on the payroll. N.Y.
Ret. & S.S. Law 5 605(b)(2).
STATEMENT OF FACTS
As this Court may consider matters of which it can take judicial notice, Allen
v. Westpoint-Pepperell Inc., 945 F.2d 40,44 (2d Cir. 1991), and it can take judicial

notice of state administrative procedures, Mack v. South Bay Beer Distribs., 798
F.2d 1279, 1282 (9thCir. 1986); Thomas v. Westchester County Care Corp., 232 F .
Supp. 2d 273,276 (S.D.N.Y. 2002), the facts set forth will come from both the
allegations in the complaint, and the administrative proceeding in which Mary Jo
C. attempted to procure the accommodation she presently seeks. However,
because Mary Jo C. has not cited any binding Circuit authority for this position,

1

A covered entity includes an employer. 42 U.S.C.
8

5 1211l(2).

she will first set forth facts alleged in her complaint and then facts presented in the
administrative proceeding to which the complaint referred for ease of reference.
Mary Jo C. is a 57 year-old individual who has suffered from mental illness
since adolescence. A-38,¶ 1 2 . ~
Notwithstanding her illness, Mary Jo C. worked
intermittently as a librarian for various libraries on Long Island between 1986 and
November 2006. A-38, ¶ 13. In January, 1988, Mary Jo C. became a member of
the NYSLRS. Id., ¶ 14.
Appellee Library served as Mary Jo C.'s last employer. Id., ¶ 15. As a result
of behaviors that were symptomatic of her mental illness, the Library fired Mary Jo

C. in November 2006. Id., 116. Also as a result of behaviors manifested by Mary
Jo C. that were symptomatic of her mental illness, libraries in Suffolk County
communicated among themselves and agreed that Mary Jo C. should not be hired
as a librarian; in the vernacular, blacklisting Mary Jo C.. A-42,¶ 40.
Because Mary Jo C. suffered from mental illness, she would have been
eligible for disability retirement benefits if she made a timely application. A-39, ¶
18. New York law required Mary Jo C. to file an application for retirement
benefits within three months of her last day of work. Id., ¶ 19. However, because
of mental illness from which she suffered, Mary Jo C. failed to recognize that state

-

2

A

- refers to the joint appendix.

law required her to file her retirement benefits application within this time period.
Id., ¶ 20.
During this three-month period in which an application could have been
filed for disability benefits, Mary Jo's brother, Harry C., attempted to take steps to
assist Mary Jo C. in obtaining benefits to which she was entitled. Id., ¶ 21. Harry
C. spoke to the NYSLRS Disability Retirement Director. Id., ¶ 22. The Director
notified Harry C. that the Library could file an application for disability retirement
benefits on behalf of Mary Jo C within the permissible time period. Id., ¶ 23.
As a result of his conversation with NYSLRS, Harry C. asked the Library to
file for retirement benefits on behalf of Mary Jo C. A-40,¶ 25. The Library denied
the request to file disability benefits on behalf of Mary Jo C. Id., ¶ 26. In
response, Harry C. then requested in the alternative that the Library reclassify her
termination as an unpaid leave of absence. A-40,¶ 27. If the Library reclassified
her termination as an unpaid leave of absence, Mary Jo C. would have been able to
file for disability retirement benefits once her clinical condition improved and she
recognized the necessity of applying for the disability benefits. Id., ¶ 28. The
Central Islip Public Library also denied the request by Harry C. to reclassify her
termination to an unpaid leave of absence. Id., ¶ 29.
In November, 2007, Mary Jo C.'s clinical condition improved and she
applied for disability retirement benefits. Id., 130. NYSLRS denied the

application on the ground that Mary Jo C. failed to comply with the requirement
under New York State Law in that she did not file her application within three
months of her last day of employment. Id., 9 3 1.
In July, 2008, Mary Jo C. requested an accommodation under the Americans
with Disabilities Act from NYSLRS in the form of a waiver of the filing deadline.
A-41, ¶ 32. Although NYSLRS never responded to this request, it stated that Mary
Jo C. could appeal the denial of her disability retirement claim. Id., 9 34. Mary Jo

C. appealed the denial of her claim, and in the appeal NYSLRS argued that federal
law did not authorize the waiving of the filing requirements. Id., 9 36. The
hearing officer denied the appeal on the ground that no provision existed for
extending the filing deadline. Id.,

37-38.

In 2003, Mary Jo C. also lost a job because of symptoms of mental illness as
she could not relate to others, understand directions given to her, and, in addition,
manifested paranoia. SA-29.3 Throughout her life, when her illness worsened,
Mary Jo C. would manifest persecutory delusions and hallucinations about foreign
bodies or green men coming from the ceiling. SA-30. She would also throw her
furniture away and shred all her personal papers. Id. She also manifested
considerable difficulty in interacting with others, as she manifested poor
concentration, and manifested mood swings between euphoria and a depressed
SA-refers to the supplemental appendix filed by the appellant alone as the
appellees did not consent to its conclusion in the joint appendix.
11

irritable mood. SA- 30 - SA-31. She would also manifest periods of aggression.
SA-3 1.
From 2004 through 2007, her ability to care for herself deteriorated
significantly. See SA-42. Her social interaction with others stopped and her
personal hygiene deteriorated significantly in such areas as grooming, bathing,
attire and weight loss. Id.
After the Library terminated Mary Jo C. and her brother requested that it file
for disability retirement benefits on her behalf, the Library informed Harry C. that
it would not file for disability benefits on behalf of Mary Jo C. on the advice of
counsel. SA-45. Counsel feared that an application by the Library for benefits
would insinuate that Mary Jo C. suffered from mental illness, which raised the
specter of a libel action. Id.
SUMMARY OF ARGUMENTS
Congress validly abrogated the Eleventh Amendment immunity belonging to
NYSLRS because the conduct of NYSLRS violated the ADA, and the abrogation
was congruent and proportional to problems Congress attempted to remedy when it
passed the ADA. Appellant Mary Jo C. is protected by the ADA because she
suffers from a substantial impairment in her ability to work. She has suffered from
mental illness her entire adult life, she lost her job as a result of mental illness and

prospective employers have determined that she should not be hired for other
positions.

Mary Jo C. is a qualified individual with a disability because at this time she
seeks the opportunity to apply for disability retirement benefits, and nothing more.

By utilizing the very same procedural requirement of which Mary Jo C. seeks a
waiver to determine that Mary Jo C. is not otherwise qualified, without examining
the necessity of the rule, the district court turned the ADA on its head.
An accommodation under the ADA is not inherently unreasonable simply
because it requires a state official to act in contravention of state law. Pursuant to
the Supremacy Clause, federal law supersedes state law. This Court has required
state officials to act in contravention of state law when necessary to enforce federal
civil rights, and two Circuits have found that an accommodation under the ADA
that requires state officials to act in contravention of state law are not inherently
unreasonable.
In this case, the proposed accommodation that Mary Jo C. seeks, a waiver of
the three-month period to file for disability retirement benefits, is reasonable.
When determining whether an accommodation in the form of a waiver of state law
constitutes a reasonable accommodation, a distinction must be made between an
accommodation that requires a government entity to alter its substantive standards,
which may be unreasonable, with a waiver of procedural rules. A waiver of

procedural rules does not require a government entity to alter its standards and it
provides an opportunity for a disabled person to obtain benefits to which the
disabled individual may be entitled.
The remedy of a reasonable accommodation in this case is congruent and
proportional to problems Congress found and attempted to remedy. Congress
sought to enforce provisions of the Due Process Clause, which include the right to
contract. Congress further found that people with disabilities were financially
disadvantaged. The accommodation in this case enables Mary Jo C. to enforce her
contract rights with NYSLRS, which may help remedy economic disadvantages to
which she may be subject.
Next, Title I1 of the ADA prohibits employment discrimination by state and
local governments. A review of the legislative history of the ADA establishes that
in passing Title 11, Congress sought to incorporate all forms of discrimination
prohibited by section 504 of the Rehabilitation Act. Section 504 prohibits
employment discrimination. Furthermore, the regulations of the Department of
Justice, which are at the very least, entitled to significant respect, conclude that an
employee may file a claim of employment discrimination against a state or local
government pursuant to Title 11.
In addition, when the Eleventh Circuit found that Title 11of the ADA covers
employment discrimination it engaged in a mode of analysis consistent with this

Court's interpretation of Title 11. On the other hand, when the Ninth Circuit
concluded that Title I1 does not cover claims of employment discrimination, it
engaged in a mode of analysis antithetical to this Court's Title I1 jurisprudence.
Hence, the Eleventh Circuit constitutes far more persuasive authority for this
Court.
APPLLICABLE STANDARDS GOVERNING REVIEW OF
DISTRICT COURT DECISION
The standard of review governing the dismissal of the cause of action
against NYSLRS is de novo, as it involves a determination of a motion to dismiss
on Eleventh Amendment grounds. See State Emples. Bargaining Agent Coalition
v. Rowland, 494 F.3d 7 1,95 (2d Cir. 2007). The standard of review governing the

dismissal of the claim against the Library is also de novo, as it involves a review of
a granting of a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Matson v. Bd.
of Educ. of the City Sch. Dist. of N.Y., 631 F.3d 57,63 (2d Cir. 201 1).

"To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to 'state a claim to relief that is plausible on its face."'
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544,570 (2007)). On the Rule 12(b)(6) part of the defendants'

motion, not only must a court assume as true all factual allegations in the
complaint, it must also draw all reasonable inferences in favor of the plaintiff.
Harris v. Mills, 572 F.3d 66,7 1 (2d Cir. 2009). When assessing the adequacy of

15

the plaintiffs claims, this Court can consider the allegations in the complaint,
documents appended to the complaint or incorporated in the complaint by
reference, and to matters of which judicial notice may be taken. Allen, 945 F.2d at
44. On a motion to dismiss that challenges the jurisdiction of the court, while a
court must assume as true all material allegations in the complaint, it will not draw
inferences in favor of the party asserting jurisdiction. Shipping Fin. Sews. Corp. v.
Drakos, 140 F.3d 129, 131 (2d Cir. 1998).
ARGUMENTS
I.

CONGRESS VALIDLY ABROGATED ELEVENTH AMENDMENT
IMMUNITY BELONGING TO NYSLRS.
It is well settled that in passing the ADA, Congress attempted to abrogate

the Eleventh Amendment immunities belonging to the states: "A state shall not be
immune under the eleventh amendment to the Constitution of the United States
from an action in Federal or State court of competent jurisdiction for a violation of
this chapter." 42 U.S.C.

5 12202.

This statement reflects the "unequivocal

expression of Congress's intent to abrogate state sovereign immunity." United
States v. Georgia, 546 U.S. 151, 154 (2006). Whether such abrogation was valid
requires the following three-part analysis:
(I) which aspects of the State's alleged conduct violated Title 11; (2) to what
extent such misconduct also violated the Fourteenth Amendment; and (3)
insofar as such misconduct violated Title I1 but did not violate the
Fourteenth Amendment, whether Congress's purported abrogation of
sovereign immunity as to that class of conduct is nevertheless valid.

Georgia, 546 U.S. at 159.
A.

The Failure to Provide a Reasonable Accommodation in the Form of a
Waiver of the Three Month Filing Requirement to Obtain Disability
Retirement Benefits Violated the ADA.
1.

Mary Jo C. Was Disabled Under the ADA Because Mental
Illness Substantially Impaired Her Ability to Work.

The ADA defines disability as, inter alia, a physical or mental impairment
that substantially limits a major life activity. Capobianco v. City of New York, 422
F.3d 47,56 (2d Cir. 2005). Work is a major life activity. Ryan v. Grae & Rybicki,
P.C., 135 F.3d 867, 870 (2d Cir. 1998). When evaluating whether or not an
impairment is substantially limiting, a court must examine the nature and severity
of the impairment, its duration, and the existence of any actual or expected long
term impact. Capobianco, 422 F.3d at 57.
This Court has recognized that "'a heightened pleading requirement,'
requiring the pleading of 'specific facts beyond those necessary to state [a] claim
and the grounds showing entitlement to relief . . . [is] . . . impermissible." Arista
Records LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (quoting Bell Atlantic
COT. v. Twombly, 550 U.S. 544,570 (2007)) (other internal quotes omitted).
Accordingly, a complaint "'does not need detailed factual allegations,"' but must
avoid containing "'labels or conclusions"' or "'formalistic recitation[s]'"
(quoting Twombley, 550 U.S. at 555).

Id.

Even when confining an examination of the extent and impact of mental
illness on Mary Jo C.'s ability to work to the face of the complaint, Mary Jo C.
satisfies this standard. Indeed, this may be why neither NYSLRS nor the Library
argued below that Mary Jo C. was not disabled under the ADA. See A-55 - A-64;
A-77 - A-83.
Mary Jo C. has suffered from mental illness since adolescence. A-38, ¶ 12.
With mental illness, she has only worked intermittently since 1986. A-38,¶ 13.
As a result of behaviors symptomatic of her mental illness, the Library fired her in
November, 2006. A-38; ¶ 16. Furthermore, as a result of behaviors manifested by
Mary Jo C. that were symptomatic of her mental illness, libraries in Suffolk
County concluded that Mary Jo C. was not a person who should be hired as a
librarian, virtually ensuring that she will never work again. A-42,¶¶ 40-41. In this
way, there can be little doubt that Mary Jo C. is restricted in performing as a
librarian, which renders her substantially impaired. See Toyota Motor Mfg. Ky. v.
Williams, 534 U.S. 184,202 (2002) (in context of working, degree of limitation of

impairment requires comparison to average person having comparable training,
skills and abilities).
Moreover, an examination of the facts of which this Court can take judicial
notice, see supra at 8, detail why the allegations in the complaint render it
plausible that Mary Jo C. suffers from a substantial impairment in her ability to

work. See Twombly, 550 U.S. at 570. Throughout her life, Mary Jo C. has been
hospitalized at least three times. SA-28. When Mary Jo C. has decompensated,
she has manifested persecutory delusions and hallucinations about foreign bodies
or little green men coming from the ceiling. SA-30. Symptoms of a mood
disorder range from aggression, euphoria, and a depressed mood. SA-30 - SA3 1.
Because of mental illness, and the inability to follow direction, Mary Jo C. also lost
her job in 2003. SA-29.
Furthermore, on a Rule 12(b)(l) motion challenging jurisdiction, when
jurisdictional facts are placed in dispute, a court has the "power and obligation to
decide issues of fact by reference to evidence outside the pleadings." Leblanc v.
Cleveland, 198 F.3d 353,356 (2d Cir. 1999). As neither appellee challenged the
assertion of Mary Jo C. that she was disabled under the ADA, which resulted in the
court, sua sponte, examining only the pleadings, the appellant did not have an
opportunity to make a record as she was entitled to do on a Rule 12(b)(l) motion.
See id.4 1f the appellees themselves raised the issue of disability or if the court
provided Mary Jo C. with an opportunity to address the issue of disability under
the ADA, she would have set forth evidence detailed in the administrative
proceeding as well as point out that since the hearing, her mental health has
4

The remaining issues relating to the issue of jurisdiction, whether the plaintiff
was "otherwise qualified under the ADA and whether she sought a reasonable
accommodation, were questions that did, and do, not involve any disputed issues of
fact. See infra at20-30.

deteriorated significantly, which resulted in inter alia, her being hospitalized three
times within a three month period and rendering it a certainty that she will never
work again.
Mary lo asserts that the failure to provide her with an opportunity to present
evidence of disability can be cured by the usual practice of this Court to grant a
party leave to amend the complaint on a Rule 12(b)(6) motion. See, e.g., Bellikofl
v. Eaton Vance Corp., 48 1 F.3d 110, 118 (2d Cir. 2007); Ronzani v. Sanofi S.A.,

899 F.2d 195, 198 (2d Cir. 1990). In this case, Mary Jo C. did not initially seek
leave from the district court to re-plead on the issue of disability because the
appellees never raised this issue.'

2.

If the "Otherwise Qualified Requirement of the ADA Even
Applies in this Case, Mary Jo C. Was an Otherwise Qualified
Individual Because She Contracted With NYSLRS to be a
Member and Worked at the Time She Was an NYSLRS
Member.

Under Title I1 of the ADA, an otherwise qualified individual with a
disability is someone who, with or without reasonable modifications to rules,
policies or practices, meets the essential eligibility requirements for receipt of
services or participation in programs or activities provided by a public entity. 42
U.S.C. $ 12132(2). An individual is otherwise qualified when he meets the

' May Jo C. did not request leave to re-plead after the district court's ruling on the
issues of accommodation and the applicability of Title I1 rendered any amendment
futile as it would have related to the issue of disability.

necessary requirements of the government program. Sandison v. Michigan High

Sch. Athletic Ass 'n, 64 F.3d 1026, 1034 (6thCir. 1995); Pottgen v. Missouri State
High Sch. Activities Association, 40 F.3d 926,929 (8' Cir. 1994). Eligibility
criteria are necessary when they further the objectives of the program of the public
entity. Cf: 35 C.F.R.

130(b)(4)(ii);see also infra at 27-29 (recognizing

difference between alterations to substantive and procedural criteria that result
from sought-after accommodations).
In the context of post-employment benefits, a person satisfies the essential
eligibility requirements if she performed the essential functions of the job at the
time of employment. Castellano v. City of New York, 142 F.3d 58,68 (2d Cir.
1998). In this case, it is unnecessary to determine whether or not Mary Jo C. meets
all the substantive criteria for the receipt of disability retirement benefits as she
seeks only the opportunity to apply for such benefits. More specifically, she
merely seeks the opportunity to establish that she paid money into the retirement
system while she was employed to fund benefits in the event she became disabled
and that she is now disabled. It is preposterous for the district court to find that
Mary Jo C. was not otherwise qualified by invoking the very ministerial
requirement that Mary Jo asserts can be reasonably accommodated without unduly
burdening NYSLRS. See infra at 27-29.

The district court, relying on Henrietta D. v. Bloomberg, 33 1 F.3d 261 (2d
Cir. 2003), cert. denied, 541 U.S. 936 (2004); concluded that a program's "'formal
legal eligibility requirements"' define who is otherwise qualified. A-23 (quoting
Henrietta D., 33 1 F.3d at 277). However, in Henrietta D. this Court further
recognized that "the Rehabilitation Act requires affirmative accommodations to
ensure that facially neutral rules do not in practice discriminate against individuals
with disabilities." Henrietta D., 33 1 F.3d at 275.6 When an individual like Mary
Jo C. seeks a modification of a neutral rule that can, in fact, adversely impact
people with disabilities, defining whether an individual is otherwise qualified
solely by the criteria established by the facially neutral state itself, as did the
district court, turns the ADA on its head. The district court effectively eliminated
the ability of Mary Jo C. to seek modification of the eligibility criteria in question.'

There can be little doubt that the ADA also contains this requirement. See, e.g.,
Henrietta D., 331 F.3d at 272 (recognizing that except for subtle differences, Title
I1 adopts standards required by Rehabilitation Act).
Moreover, it is worth noting that Henrietta D. involved a situation in which the
plaintiffs invoked the ADA to enforce their right to benefits to which they were
entitled under state law. Henrietta D., 331 F.3d at 264. In such a situation,
defining "otherwise qualified" by the standards promulgated by the government
defendants furthers the purpose of the ADA in providing a "comprehensive
national mandate" for the protection of people with disabilities. Id. at 272.

3.

A Waiver of The Three Month Period For Filing For Disability
Retirement Benefits Constitutes a Reasonable ~ccommodation
Under the ADA.
1.

Because The Requirements of Federal Law Supersede
State Law, an Accommodation That Reauires State
Officials to Act in Contravention of State Law is Not
Inherently Unreasonable.

The Supremacy Clause of the Constitution provides that laws of the United
States made pursuant to the Constitution shall be the supreme law of the land and
states shall be bound by these laws notwithstanding any state law to the contrary.
U.S. Const.art.VI, Cl. 2. Accordingly, this Court has recognized that state officials
may be required to act in contravention of state law in when enforcement of federal
rights require such action. See United States v. City of Yonkers, 856 F.2d 444,459
(2d Cir. 1988) (recognizing authority of federal court to order state officials to
order tax abatements not permitted by state law in order enforce Title VIII rights).
This Court has also consistently recognized that when state statues conflict
with individual rights under federal civil rights statutes, the federal provisions
enforcing federal rights supersede state law. See, e.g., Hargrave v. State of
Vermont, 340 F.3d 27,38 (2d Cir. 2003) (ADA prohibits enforcement of durable
power of attorney provision of state law because it discriminates against people
with mental illness); Tsombanidis v. West Haven Fire Dept., 352 F.2d 565,580 (2d
Cir. 2003) (affirming imposition of waiver of zoning ordinance under Fair Housing
Amendments Act as reasonable accommodation) Huntington Branch NAACP v.

Town of Huntington, 844 F.2d 926, 941-42 (2d Cir. 1988) (Title VIII of Civil
Rights Act requires town to amend zoning laws that violate federal statute).
Accordingly, this Court has expressly recognized that the reasonable
accommodation requirement of the ADA, Rehabilitation Act and Fair Housing
Amendments Act requires municipalities to waive its zoning laws:
Returning to the example of the zoning ordinance prohibiting
elevators, a proper reasonable accommodation claim might assert that
the zoning authority should have waived or modified its rule against
elevators in residential dwellings.

Reg'l Econ. Comty. Action Program v. City of Middletown ("RECAP"), 294 F.3d
35,53 (2d Cir. 2002).
Case law from this Circuit is perfectly consistent with other circuit authority.
Two circuits have concluded that an accommodation that requires state officials to
violate state law on its face does not, by itself, render the accommodation
unreasonable. See Barber v. Colorado Dep't of Revenue, 562 F.3d 1222, 1233
(lothCir. 2009) (rejecting conclusion of lower court that accommodation that
would have required state defendants to willfully ignore or violate the law is per se
not reasonable); McGary v. City of Portland, 386 F.3d 1259, 1269 (9&Cir. 2004).

McGary is particularly instructive in that the plaintiff sought an accommodation
almost identical to that of Mary Jo C.: an extension of time required by state law to
file a response to a nuisance proceeding. 386 F.3d at 1261. Such a request
constituted a reasonable accommodation under the ADA. Id., at 1269.
24

Likewise, in Quinones v. City o Evanston, Illinois, 58 F.3d 275 (7thCir.
f
1995), the Court framed the issue and holding under the Age Discrimination in
Employment Act as follows:
Evanston has been told by the State of Illinois that it may not provide
pensions to firefighters hired after age 34; it has been told by the
United States of America to treat these employees no worse than those
hired when younger. Evanston believes that it is compelled to follow
the directive from the state, but the Supremacy Clause of the
Constitution requires a different order of priority. A discriminatory
state law is not a defense to liability under federal law; it is a source of
liability under federal law.
Id. at 277; see also Crowder v. Kitagawa, 81 F.3d 1480, 1484 (9thCir. 1996)
(concluding that ADA may require local officials to waive application of Hawaii's
quarantine law in the case of guide dogs); Galusha v. New York State Dep't o Evtl
f
Conservation, 27 F. Supp.2d 117, 125 (N.D.N.Y. 1998) (relying on Crowder to
conclude that neutral state law discriminated against people with disabilities by
denying them access to state parks; ADA required exemption to state law as
reasonable accommodation). In sum, state law, does not serve as impediment to
enforcing federal rights. See, e.g., Yonkers, 856 F.2d at 459.
This is so because the Supremacy Clause provides that state law cannot
stand as an "obstacle to the accomplishment and execution of the full purposes of
objectives of Congress." Crosby v. Nut '1. Foreign Trade Council, 530 U.S. 363,
373 (2000). Hence, when a proposed accommodation under the ADA conflicts
with state law, because abrogation of Eleventh Amendment immunity evinces

Congressional intent "'to exercise its constitutional authority to supersede the laws
of a state, the Supremacy Clause requires courts to follow federal law."' Galusha,
27 F. Supp.2d at 124 (quoting Levitin v. PaineWebber, 159 F.3d 698 (2d Cir.
1998)).
In passing the ADA, Congress sought to remedy the disadvantaged
economic status of disabled individuals. See 42 U.S.C. $ 12101(a)(6). It sought to
do so in part by providing to people with disabilities a preference in the form of an
accommodation. See U.S. Airways v. Barnett, 535 U.S. 39 1,398 (2002);
Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 143 (2d Cir. 1995). Hence, if
the accommodation that Mary Jo C. seeks, a waiver of the filing period to apply for
disability retirement benefits, will enable Mary Jo C. to recoup the benefits to
which she is entitled, and for which she lacked the ability to apply simply because
of her mental illness, then state law cannot frustrate Congressional intent to
provide the accommodation.
Furthermore, there can be no doubt that if the plaintiff filed a disparate
impact claim that the district court found meritorious, principles of federalism
would not bar the court from enjoining application of the three month filing
requirement, even if NYSLRS did not possess any invidious intent. See RECAP,
294 F.3d at 52; Huntington Branch NAACP, 844 F.2d at 936,942. Hence, if
federalism concerns would not preclude enjoining enforcement of the three month

filing requirement under a disparate impact theory, then it cannot serve as a basis
to find an accommodation that would compel the same result in the absence of an
undue burden to NYSLRS. See 28 C.F.R.

..

11.

3 35.130(b)(7).

A Waiver of the Three-Month Period For Filing For
Disability Retirement Benefits Constitutes a Reasonable
Accommodation Because it Does Not Require NYSLRS
to Alter Its Substantive Eligibility Criteria.
-

An accommodation is reasonable unless it will create an undue hardship or
fundamentally alter the nature of the governmental program. Borkowski, 63 F.3d
at 138; 35 C.F.R. 8 35.130(b)(7).~On one hand, this Court has recognized that the
reasonable accommodation provision serves to remedy neutral rules that
discriminate against people with disabilities, Henrietta D., 33 1 F.3d at 275 and
requires accommodations to procedures to ensure meaningful access to programs
operated by public entities. Rothchild v. Grottenthaler, 907 F.2d 286,292-93 (2d

One theoretical difference between the plaintiffs Title I1 claim and either a Title I
claim, or a claim under Rehabilitation Act, is that Title I requires a defendant to
establish that an accommodation creates an undue hardship, Borkowski, 63 F.3d at
148, while a Title I1 claim requires a defendant to establish that an otherwise
reasonable accommodation will fundamentally alter the program impacted by the
accommodation. See Olmstead v. L.C. by Zimring, 527 U.S. 58 1,603 (1999)
(citing 28 C.F.R. 35.130(b)(7)). It remains unclear the degree to which the undue
hardship and fundamental alteration defenses differ, if at all. See McGary, 386
F.3d at 1269, n.7 (no significant difference between analysis of fundamental
alteration defense and defenses under Rehabilitation Act); Disability Advocates
Inc., v. Paterson, 653 F. Supp. 2d 184,301, n.890 (E.D.N.Y. 2009) (rejecting
notion that reasonable accommodation defense is distinct from fundamental
alteration defense).

Cir. 1990) (requiring the provision of sign language interpreter at school initiated
conferences). On the other hand, this Court has held that "[tlitle I1 of the ADA
requires no . . . dimishment of otherwise applicable standards." Harris, 57 F.3d at
74 (rejecting of accommodation claim that would have required state to weaken its
licensing standards for physicians); see also Pottgen, 40 F.3d at 930 (waiving of
age limit for participation in school sports not reasonable); Aughe,885 F. Supp. at
1432-33 (waiving age limitation for receipt of benefits not reasonable).
Indeed, this Court's analysis in Wright v. Giuliani, 230 F.3d 543 (2d Cir.
20001, supports this substantive/procedural distinction. In Wright, this Court
recognized that the ADA generally does not require substantive modifications to
program standards and benefits. 230 F.3d at 547-48. Rather, the ADA requires
"meaningful access" to existing benefits. Id.
The distinction between providing a procedural accommodation that would
facilitate access to rights to which a disabled individual is otherwise entitled, and
the altering of substantive criteria governing the administration of public programs,
can be evinced by the Department of Justice illustration of what constitutes a
reasonable accommodation:
ILLUSTRATION 2: A county general relief program provides emergency
food, shelter, and cash grants to individuals who can demonstrate their
eligibility. The application process, however, is extremely lengthy and
complex. When many individuals with mental disabilities apply for benefits,
they are unable to complete the application process successfully. As a result,
they are effectively denied benefits to which they are otherwise entitled. In

this case, the county has an obligation to make reasonable modifications to
its application process to ensure that otherwise eligible individuals are not
denied needed benefits. Modifications to the relief program might include
simplifying the application process or providing applicants who have mental
disabilities with individualized assistance to complete the process.
Americans with Disabilities Act: Title I1 Technical Assistance Manual

I1 -

3.6 100, General Illustration 2 (1993).
Finally, to the extent that the waiver of a filing requirement might unduly
burden, or even fundamentally alter the state disability retirement system, such a
question typically cannot be addressed in a Rule 12 motion that generally does not
contain a factual record. See Lyons v. Legal Aid Soc., 68 F.3d 1512, 1517 (2d Cir.
1995). The district court concluded that the three-month rule serves to alleviate
hardships when members mistakenly terminate their service prior to filing for
benefits. A-25 (citing Matter of Grossman v. McCall, 262 A.D. 2d 923,924 (3d
Dep't 1999)). It does, but it serves to eliminate hardship to an employee, not the
State.
When the New York Legislature passed the three-month requirement, it
altered then-existing law that required employees to be employed at the time of the
application. See Letter of Deputy Comptroller, Bill Jacket L. 1981, ch. 756. At the
time of this change, employees had to be "in service," i.e., employed at the time of
the application. The change sought to alleviate hardship to employees who
mistakenly terminated the jobs prior to applying for benefits. Id. Indeed, one can

argue that the proposed accommodation not only furthers the aims of the ADA, but
also the underlying purpose behind the State legislation that imposed the threemonth requirement as it protects against "the inequitable forfeiture of benefits."
Letter of Superintendent of Insurance, Bill Jacket L. 1981, ch. 756.
B.

Congress Validly Abrogated Eleventh Amendment Immunity Because
Providing the Requested Accommodation to Mary Jo C. is a
Proportional Remedy to the Problems That Congress Found.

When determining whether Congress has validly abrogated Eleventh
Amendment immunity, this Court must assess whether Title I1 exhibits
"congruence and proportionality between the injury to be prevented or remedied
and the means adopted to that end." Bd. of Trs. of Univ. of Ala. v. Garrett, 541
U.S. 356,365 (2001) (internal quotes omitted). In passing Title 11, Congress
sought to enforce the provisions of the Fourteenth Amendment, Tennessee v. Lane,
504 U.S. 509,523 (2004), including the substantive component of the Due Process
Clause. Bolmer v. Oliveira, 595 F.3d 134, 147 (2d Cir. 2010). The Due Process
Clause protects both the right to contract and engage in the orderly pursuit of
happiness, which are part of the fundamental right to liberty that the Due Process
Clause protects. See Meyer v. Nebraska, 262 U.S. 390,399 (1923).
When passing the ADA, Congress sought to remedy "pervasive unequal
treatment in the administration of state services and programs." Lane, 541 U.S. at
524. By becoming a member of NYSLRS, Mary Jo C. entered into a contractual

relationship that the State Constitution protects. NY Const art. V, $ 7. In the
present case, the arbitrary imposition of a three-month period for filing for
disability retirement benefits has, as this case illustrates, the potential to
significantly impact disproportionally on people with mental illness.
Congress has mandated that states provide a preference to people with
disabilities when the preference will not unduly burden the states. See supra at 26,
27. This preference serves to help create opportunities that would not otherwise
exist for people with disabilities. Senate Report No. 101-116 at 32 (1989); H.R.
Rep. 101-485 (11) at 65 (1990).~Clearly, removing barriers that impair contract
rights of people with mental illness is congruent to the problems that Congress
found. Indeed, Congress relied on Harris polls to find that that people with
disabilities are uniquely disadvantaged as they are, inter alia, much poorer than
other Americans. Senate Report No. 101-116 at 7 (1989). Many will argue that
the pursuit of happiness that the Due Process Clause protects often requires money.
As stated previously, the accommodation in this case is a remedy that is
proportional to the problem that Congress found. Providing an opportunity to

Although these citations to the legislative history related to the provision of
reasonable accommodation in the employment context, Congress intended that
Title I1 incorporate the requirement of reasonable accommodations. H.R. Rep. 101485 (11) at 84.
31

Mary Jo C. to obtain benefits to which she is entitled, would cure the earlier
imposition of state law that arbitrarily denied her such opportunity.1°
11.

THE LEGISLATIVE HISTORY OF THE ADA AND DEFERENCE TO
THE ATTORNEY GENERAL COMPEL THE CONCLUSION THAT
TITLE I1 COVERS EMPLOYMENT DISCRIMINATION BY PUBLIC
ENTITIES.
This Court has recognized that the prohibition against discrimination in Title

I1 of the ADA "is a catch-all phrase that prohibits all discrimination by a public
entity, regardless of the context." Innovative Health Sys, Inc. v. City of White
Plains, 117 F.3d 37,45 (2d Cir. 1997). In reaching this conclusion, this Court

cited the legislative history of the ADA:
The Committee has chosen not to list all the types of actions that are
included within the term "discrimination", as was done in title I and
111, because this title essentially simply extends the anti-discrimination
prohibition embodied in section 504 to all actions of state and local
governments.
Title I1 of the bill makes all activities of State and local governments
subject to the types of prohibitions against discrimination against a
qualified individual with a disability included in section 504
(nondiscrimination).

10

The Eleventh Amendment does not bar claims for injunctive relief against a state
official in his official capacity. See Henrietta D., 331 F.3d at 289. Hence, Mary Jo
C. requests leave to file an amended complaint naming the Comptroller as the head
of NYSLRS as a defendant in his official capacity if this Court finds that Congress
did not validly waive the State's Eleventh Amendment immunity but that she has
otherwise set forth a valid ADA claim.

Id. (quoting H.R. Rep. No.101-485 (11) at 84, 151 (1990) (emphasis by this Court).
At the time of passage of the ADA, it was well-settled that section 504 of the
Rehabilitation Act prohibited employment discrimination. See Consolidated Rail
v. Darrone, 465 U.S. 624,632 (1984).11
In addition, Congress made clear in the legislative history that it did not
intend for Title I11 to cover claims of employment discrimination against places of
public accommodations and specifically stated that Title I covered these claims.
Senate Report No. 101- 116 at 56; H.R. Rep. 101-485 (11) at 382.

"[I]t
'

is well-

settled that where 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."'
Smaldone v. Senkowski, 273 F.3d 133, 137 (2d Cir. 2001), cert. denied, 535 U.S.
1017 (2002) (quoting Duncan v. Walker, 533 U.S. 167, 173 (2001)) (other internal
quotes omitted). This Court should apply this rule of statutory construction to a

' While Congress intended to incorporate the provisions of the Rehabilitation Act
to Title 11, it wanted to eliminate the requirement within the Rehabilitation Act that
the discriminatory conduct arise solely by reason of disability. Senate Report No.
101- 116 at 42. In explaining how elimination the reasons for eliminating the
solely by reason of disability requirement, Congress chose a hypothetical case of
discrimination to illustrate the difference under the ADA. Out of a virtually
limitless set of hypothetical factual scenarios Congress could choose from, it chose
a case of employment discrimination. H.R. Rep. 101-485(II) at 85. This is a pretty
good indication that Congress intended that Title I1 cover employment.

review of legislative history because both a review of legislative history and this
rule are tools to decipher Congressional intent.
Furthermore, the regulations promulgated by the Department of Justice
provide that Title I1 of the ADA govern claims of discrimination arising out of
employment. 28 C.F.R. 3 35.140. While it remains unclear whether the views of
the Department Justice are entitled to the degree of deference warranted pursuant
to Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,
844 (1984), "'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."' Olmstead V. L. C. ex
rel. Zimring, 527 U.S. at 598-99 (quoting Bragdon v. Abbott, 524 U.S. 624,642
(1998)) (other internal quotes omitted). l2
Presently a circuit split exists as to the question of whether Title I1
authorizes claims of employment discrimination against state or local
governments. Compare Bledsoe v. Palm Beach County Soil & Water Conservation
Dist., 133 F.3d 8 16, 820-23 (1 lth Cir. 1998) (Title I1 governs employment by state
and local governments) with Zimmerman v. Oregon Dept. of Justice, 170 F.3d
1169, 1173-1178 (9th Cir. 1999), cert. denied, 53 1 U.S. 1189 (2001) (Title I1 does
Under Chevron, when Congress has left a statutory gap for an administrative
agency to fill, courts must give controlling weight to the regulations promulgated
by the agency "unless they are arbitrary, capricious, or manifestly contrary to the
statute." Chevron, 467 U.S. at 843-44.
l2

34

not govern employment by government).13 A review of both Circuit decisions
reveals that the decision in Zirnmermun is antithetical to this Court's mode of
interpreting Title 11, while the decision in Bledsoe is consistent with this Court's
Title I1 analysis in Innovative Health.
First, the court in Zirnmennan refused to even examine the legislative history
of the ADA, concluding that the text of the ADA unambiguously establish that
Congress did not intend for Title 11 to govern employment discrimination claims
against public entities. 170 F.3d at 1178. Perhaps even more significantly, as
detailed below, the Ninth Circuit in Zimrnerman expressly rejected the rationale
underlying this Court's decision in Innovative Health. 170 F.3d at 1175.
Both this Court and the Ninth Circuit examined in detail the prohibition
against discrimination set forth in Title 11:
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. 3 12132. This Court concluded that this language "does not limit the
ADA's coverage to conduct that occurs in the 'programs, services, or activities"'
Presently, a split also exists among the district courts within this Circuit.
Compare Transport Workers Union v. New York City Transit Authority, 342 F.
Supp.2d 160, 171-75 (S.D.N.Y. 2004)(authorizing Title I1 lawsuit) with Fleming v.
State University of New York, 502 F. Supp.2d 324,332-34 (E.D.N.Y. 2007)
(limiting employment discrimination claims to Title I).
l3

of the public entity. Innovative Health, 117 F.3d at 44-45. On the other hand, the
Ninth Circuit reached the opposite conclusion: that the phrase "or be subjected to
discrimination" relates only to services, programs or activities of the public entity.
Zimrnemzan, 170 F.3d at 1174-76. Indeed, the Ninth Circuit acknowledged that if

a Court interpreted Ij 12132 in the manner that this Court has, such interpretation
"would be broad enough to include employment discrimination by a public entity."
Id. 170 F.3d at 1175.

On the other hand, the Eleventh Circuit opinion in Bledsoe is very consistent
with this Court's opinion in Innovative Health. The court relied on Innovative
Health to conclude that the final clause in 42 U.S.C. Ij 12132 does not limit

discrimination to only "services, programs or activities" but all discrimination,
regardless of the context. Bledsoe, 133 F.3d at 821-22. Similarly, the court in
Bledsoe relied on legislative history to recognize that Congress sought to

incorporate the forms of discrimination prohibited under section 504 of the
Rehabilitation Act to Title 11. Id. at 82 1.
Against this weight of authority, the district court concluded that district
court decisions within this Circuit and Supreme Court language in Bd of Trs. of
University of Alabama v. Garrett, 531 U.S. at 356 and Tennessee v. Lane, 541 U.S.

at 509, in which the Supreme Court noted in passing that Congress Title I deals
with employment, warranted the conclusion that Title I served as the exclusive

remedy for employment discrimination by public entities. A-32. Relying on dicta
that barely relates to the issues at hand, in cases in which the issue at hand was not
before the Court, hardly serves as persuasive reasoning.
CONCLUSION
For the reasons given in the 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 NYSLRS.
Dated: Central Islip, New York
August 22,201 1

'

WILLIAM M. BROOKS
Attorney for Plaintiff-Appellant
Mental Disability Law Clinic
Touro College
Jacob D. Fuchsberg Law Center
225 Eastview Drive
Central Islip, New York 11722
[phone]

CERTIFICATE OF COMPLIANCE
William M. Brooks, the attorney for the appellant, certifies pursuant to 28
U . S . 0 § 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 8947 words
and 8 19 lines.
Dated: Central Islip, New York
August 22,201 1

CERTIFICATE OF SERVICE
I, William Brooks. Certify the truth of the following pursuant to 28 U.S.C>

On August 22,201 1, I served two copies of appellant's brief on the New
York State Department of Law, attorney for NYSLRS, by first class mail, by
affixing proper postage and mailing to 120 Broadway, New York, NY 10271, Attn
Cecelia Chang. I also served two copies of the brief on Rivkin Radler,LLP,
attoerny for the Central Islip Public Library by the same method and mailing to
926 RXR Plaza, Uniondale, NY 11566-0926, Attn Harris Zakarin.
Dated: Central Islip, New York
August 22,20 11

d
WILLIAM M. BROOKS