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  Western New York Law Center    

SELECTED 2nd CIRCUIT COURT OF APPEALS ADA/504 CASES
Cases highlited in blue are linked to the actual decision in Findlaw

Return to Selected Americans With Disabilities Act/504 Cases Court's Index

Green v. City of New York, 465 F.3d 65 C.A.2 (10/2006) Because a reasonable jury could find that Giblin declined to evaluate Walter's alleged non-verbal and computer-generated indicators of refusal to accept treatment on account of his disability, the district court erred by granting summary judgment dismissing Walter's ADA claim against the City.

Graves v. Finch Pruyn & Co., Inc., 457 F.3d 181 (7/2006) Viewing the record in the light most favorable to Graves, it 2 was imprecise to call the requested leave of absence "indefinite." A factfinder could find, based on Graves's testimony that he asked for "more time" to get a doctor's appointment and that it would take a "couple of weeks," that Graves requested  two weeks of leave - a finite amount of time to see Dr. O'Connor and learn of his chances for rehabilitation. Granting this leave of absence would not require Finch Pruyn to hold open Graves's position indefinitely. See Parker, 204 F.3d at 338 ("The duty to make reasonable accommodations does not . . . require an employer to hold an injured employee's position open indefinitely . . . ."). The district court erred in rejecting Graves's claim on the basis that the requested leave was "indefinite," and accordingly, we vacate the grant of summary judgment as to this claim of disability discrimination.

Sista v. CDC Ixis North America, Inc., 445 F.3d 161 (4/2006) we conclude that the District Court erred in holding that Sista was not "otherwise qualified" to reassume his position at CDC because he "pose[d] a direct  threat" to his co-workers. Although we cannot state definitively whether Sista made a prima  facie showing under the ADA or related state and municipal laws without determining whether  Sista's mental illness qualified as a disability, we need not address these questions to the extent that the District Court was correct in holding that CDC had a legitimate non-discriminatory basis  for terminating Sista.

Fuller v. J.P Morgan Chase & Co., 423 F.3d 104 (9/2005) Plaintiff Christine A. Fuller contends that the termination of her long-term disability benefits (i) violated the Americans with Disabilities Act (the "ADA") because the employer's plan affords a shorter period of coverage for impairments that are mental rather than physical, and (ii) was arbitrary and capricious in violation of the Employee Retirement Income Security Act ("ERISA"). She appeals from the judgment of the United States District Court for the Eastern District of New York (Block, J.), dismissing her complaint. Fuller's argument conflates her disability with its underlying cause. Since Fuller's disability arises from a mental syndrome known as bipolar disorder, it is neither arbitrary nor capricious to limit Fuller's benefits, regardless of whether that disorder in turn has a physical cause.

Capobianco v. City of New York, 422 F.3d 47 (9/2005) Capobianco brought this action against DOS and the City of New York (the "City"), alleging violations of the Americans with Disabilities Act of 1990, 42 U.S.C. 12101 et seq. (the "ADA"), and state and city law. The district court granted defendants' summary judgment motion and dismissed the complaint because it concluded that no reasonable jury could find that Capobianco was disabled or that defendants regarded him as being disabled within the meaning of the ADA. We reverse and remand for further proceedings.

Gajda v. Manhattan and Bronx Surface Transit Operating Authority, 396 F.3d 187 (1/2005) Plaintiff, a bus driver for defendant, claims that the District Court erred in finding that it was "consistent with business necessity" under the Americans with Disabilities Act ("ADA"), 42 U.S.C. 12112(d)(4), for defendant to require plaintiff to disclose the results of his HIV-related laboratory tests.Here, the representations by plaintiff, signed by his doctor, on an application for intermittent leave under the Family and Medical Leave Act that "[m]y own serious health condition renders me unable to perform the functions of my position," that his condition left him "unable to perform work of any kind," and that "[patient] will need intermittent leave at undetermined times for lifetime," demonstrates that the employer had "legitimate, non-discriminatory reasons to doubt the employee's capacity to perform his ... duties." Conroy, 33 F.3d at 98. Furthermore, requesting existing laboratory data is surely "a reasonably effective method of achieving the employer's goal" of determining whether plaintiff could safely perform those duties. Id. We thus reject plaintiff's claim that the inquiry violated the ADA.

Jacques v. DiMarzio, Inc. 386 F.3d 192 (10/2004) Defendant DiMarzio, Inc. ("DiMarzio") appeals from judgment entered after a jury trial in the United States District Court for the Eastern District of New York (Block, J.) awarding $190,000 in damages to Plaintiff Audrey Jacques, a former DiMarzio employee who alleged that DiMarzio fired her because she was "regarded as" disabled, in violation of the Americans with Disabilities Act (the "ADA"), 42 U.S.C. 12102(2)(C). Jacques cross-appeals from a ruling that she failed to make out prima facie claims under 42 U .S.C. 12102(2)(A) (discrimination against the disabled) and (B) (discrimination against those with a "record" of a disability). We hold that the district court erred when it instructed the jury that an impairment causing a "perceived" demeanor of (inter alia ) "hostility" and "social withdrawal" qualifies under the ADA as a "perceived" disability substantially limiting Jacques's ability to "interact with others." We affirm the district court's ruling that Jacques failed to make out prima facie claims under either 42 U.S.C. 12102(2)(A) or (B).

Rodal v. Anesthesia Group of Onondaga, P.C., 369 F.3d 113 (5/2004) we conclude that Dr. Rodal is not judicially estopped from claiming that he was qualified to perform the duties of a Group anesthesiologist with reasonable accommodation by statements he made in earlier state court proceedings about the extent of his disability. We further conclude that the evidence, when viewed in the light most favorable to Dr. Rodal, does not permit a court to conclude as a matter of law that (1) Dr. Rodal failed to seek any accommodation for his disability from the Group in 1999; or (2) if he did seek an accommodation, it was unreasonable because it would have required relieving him from essential job functions; or (3) even if his requested accommodation was reasonable, it nevertheless imposed an undue burden on the Anesthesia Group. Accordingly, we REVERSE the May 18, 2003 judgment in favor of the Anesthesia Group and REMAND the case to the district court for further proceedings consistent with this opinion, including further consideration of Dr. Rodal's status as a Group employee

Powell v. National Bd. of Medical Examiners, University of Connecticut School of Medicine,364 F.3d 79 (4/2004) Affairs, entered in the the District of Connecticut (Thompson, J.) on October 7, 2002. Plaintiff, a student at the 38 school of medicine, was required by the school to pass an examination administered by the National Board. She unsuccessfully requested an accommodation on account of her alleged disability. As a result of that denial, plaintiff filed suit against defendants under the Americans with Disabilities Act and the Rehabilitation Act.

Tsombanidis v. West Haven Fire Dept., 352 F.3d 565 (12/2003) The court used the appropriate factors and the evidence presented supports its findings. Among other 9 things, the district court noted the history of hostility of neighborhood residents to OH-JH and  their pressure on the Mayor and other city officials. Evidence supports the court's finding that this hostility motivated the City in initiating and continuing its enforcement efforts. We also affirm the district court's finding that plaintiffs requested a reasonable accommodation and the City failed to grant it. The City is not required to grant an exception for a group of people to live as a single family, but it cannot deny the variance request based solely on plaintiffs' handicap where the requested accommodation is reasonable. The district court found that these plaintiffs operated much like a family. Additionally, there is evidence that these particular plaintiffs needed to live in group homes located in single-family areas. We affirm the district court's award of compensatory damages and attorney's fees in its entirety and pause briefly to discuss its inclusion of a damages award for an attorney's involvement in the Zoning Board appeal. "The standard of review of an award of attorney's fees is highly deferential to the district court. Because attorney's fees are dependent on the unique facts of each case, the resolution of this issue is committed to the discretion of the district court." Baker v. Health Mgmt. Sys., Inc., 264 F.3d 144, 149 (2d Cir. 2001) (quoting Mautner v. Hirsch, 2 32 F.3d 37, 39 (2d Cir. 1994)). The district court's award of attorney's fees, as well as its entire damages award, was not excessive but rather carefully calculated and reasonable.

Hargrave v. State of Vermont, 340 F.3d 27 (8/2003) We hold that (i) plaintiffs alleged a sufficient injury-in-fact to support standing to challenge Act 114; (ii) this case is ripe for adjudication; (iii) Act 114 violates the ADA by distingushing between "qualified individuals" on the basis of mental illness; and (iv) the District Court's injunction prohibiting enforcement of certain provisions of Act 114 does not constitute a fundamental alteration to Vermont's DPOA program.

Anthony v. City of New York, 339 F.3d 129 (8/2003) Anthony's argument that the City of New York violated the ADA also fails, because there is no evidence that the warrantless seizure was motivated by discrimination against individuals with disabilities.

Beason v. United Technologies Corp., 337 F.3d 271 (7/2003) Whether the CFEPA includes a cause of action for perceived physical disability discrimination is precisely such a question of law and, given the absence of any ambiguity, we decline to defer to the Connecticut Commission's view. See Lieberman v. State Bd. of Labor Relations, 216 Conn. 253, 263-64 (1990) (declining to defer to board's view because, in part, "the board's interpretation of the statutory scheme at issue is a question of law that has not previously been subjected to judicial scrutiny").

Anderson v. Rochester-Genesee Regional Transp. Authority, 337 F.3d 201 (7/2003) The plaintiffs, twelve disabled individuals and a disability rights organization, allege that the defendants' paratransit system for disabled persons in the Rochester, New York area violated the Americans with Disabilities Act, 42 U.S.C. 12101 et seq. ("ADA" or the "Act"). The defendants moved for summary judgment in lieu of answering the complaint, and the plaintiffs cross-moved for summary judgment on three of their four claims. The United States District Court for the Western District of New York (Larimer, J.) granted summary judgment in favor of the plaintiffs and enjoined the defendants to comply with their obligations under the ADA. We affirm the grant of injunctive relief, but on grounds somewhat different from those upon which the district court relied, grounds which may require the district court to modify the injunction on remand.

Cameron v. Community Aid For Retarded Children, Inc., 335 F.3d 60 (7/2003) Since Cameron's conceded inability to get along with Johnston drove away an employee whom she was supposed to be supervising, and since Cameron does not claim that the inability is caused by any actual disability within the meaning of the ADA, it is clear that she was unqualified to be a supervisor. When an accommodation is requested and denied, and the employee brings an ADA claim premised on that denial, summary judgment may be granted against the plaintiff if the accommodation is one without which performance of an essential job function is impaired, and if the requested accommodation is unreasonable.

M.D. v. Southington Bd. of Educ., 334 F.3d 217 (6/2003) In Morse v. Univ. of Vermont, 973 F.2d 122, 127 (2d Cir. 1992), we held that all "actions under 504 of the Rehabilitation Act are governed by the state statute of limitations applicable to personal injury actions." In Connecticut, 52-577 provides a three-year limitations period for all tort actions including personal injury claims. Because plaintiffs' claims accrued more than three years before they requested a due process hearing, their Rehabilitation Act claims are also time-barred.

Conroy v. New York State Dept. of Correctional Services, 333 F.3d 88 (6,2003) We conclude that Fountain has sufficiently alleged that she has suffered and will continue to suffer the injury prohibited by the ADA's prohibition against inquiries into disability. She is therefore an appropriate plaintiff to bring this challenge to the Policy under 42 U.S.C. 12112(d)(4)(A). It is clear that even what DOCS refers to as a "general diagnosis" may tend to reveal a disability. We hold that requiring a general diagnosis is sufficient to trigger the protections of the ADA under this provision and that summary judgment in Fountain's favor was appropriate on this element. Few courts have interpreted this provision, but one court has found that a requirement that employees disclose what prescription drugs they use is a prohibited inquiry, since such a policy would reveal disabilities (or perceived disabilities) to employers. See Roe v. Cheyenne Mountain Conference Resort, 920 F.Supp. 1153, 1154-55 (D. Colo. 1996), aff'd in pertinent part, 124 F.3d 1221 (10th Cir. 1997). Similarly, we believe that since general diagnoses may expose individuals with disabilities to employer stereotypes, the Policy implicates the concerns expressed in these provisions of the ADA.

Shannon v. New York City Transit Authority, 332 F.3d 95 (6/2003)  Former city bus driver brought action against public transit authorities, alleging disability discrimination under the Americans with Disabilities Act (ADA) and state law violations after driver was permanently restricted from driving city buses upon discovery that he had difficulties distinguishing traffic signal colors. The United States District Court for the Southern District of New York, 189 F.Supp.2d 55, Sweet, J., granted summary judgment in favor of defendants, and driver appealed. The Court of Appeals, Jacobs, Circuit Judge, held that: (1) depositions of three examining eye doctors were sufficient to demonstrate that driver's color-blindness rendered him unable to differentiate traffic light colors, as required for finding that driver was not qualified, under ADA, to continue driving buses; (2) color differentiation was a qualification that authorities could properly deem "essential" for driving a bus, and thus driver could not perform "essential functions" of his position, as required for claim of disability discrimination under ADA; (3) driver's inability to distinguish colors of traffic lights was fatal to his claim under the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL) that authorities had affirmative duty to accommodate his "regarded as" disability; and (4) even if authorities had affirmative duty to accommodate driver's "regarded as" disability, driver failed to identify any reasonable accommodation that authorities failed to provide. Affirmed

Henritta D. v. Bloomberg, 331 F.3d 261 (6/2003) City residents with acquired immune deficiency syndrome (AIDS) or HIV-related illnesses brought class action against city for violating Americans with Disabilities Act (ADA), Rehabilitation Act, and various other federal, state, and city laws by failing to provide meaningful access to public assistance programs, benefits, and services. The United States District Court for the Eastern District of New York, Sterling Johnson, Jr., J., 119 F.Supp.2d 181, entered judgment for plaintiffs, and defendants appealed. The Court of Appeals, Katzmann, Circuit Judge, held that: (1) plaintiff advancing a reasonable accommodation claim under Americans with Disabilities Act (ADA) or Rehabilitation Act need not also show that the challenged program or practice has a disparate impact on persons with disabilities; (2) a plaintiff with disabilities suing under the ADA or Rehabilitation Act may show that he or she has been excluded from or denied the benefits of a public entity's services or programs "by reason of such disability" even if there are other contributory causes for the exclusion or denial, as long as the plaintiff can show that the disability was a substantial cause of the exclusion or denial; (3) injunctive relief to remedy violation of the ADA or Rehabilitation Act was appropriate; (4) state officer sued in her official capacity under the doctrine of Ex parte Young was a "public entity" subject to liability under ADA.  Affirmed.

Felix v. New York City Transit Authority, 324 F.3d 102, (3/2003) Felix contends that her case falls within our precedents by arguing that her insomnia and her fear of being in the subway are part of the same singular mental disability, the PTSD, and thus her inability to work in the subway is also "because of the disability." However, we do not view her insomnia and fear of the subway as a singular mental condition: They are two mental conditions that derive from the same traumatic incident. In cases involving conditions like AIDS that are discrete diseases with pervasive effects, it will frequently be obvious that the lesser impairment is caused by the disability. However, in situations like plaintiff's where it is not clear that a single, particular medical condition is responsible for both the disability and the lesser impairment, the plaintiff must show a causal connection between the specific condition which impairs a major life activity and the accommodation. Felix has not done so here. Finally, we note that our interpretation of the language of the statute is supported by policy considerations. The ADA serves the important function of ensuring that people with disabilities are given the same opportunities and are able to enjoy the same benefits as other Americans. The ADA mandates reasonable accommodation of people with disabilities in order to put them on an even playing field with the non-disabled; it does not authorize a preference for disabled people generally. See U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 122 S.Ct. 1516, 1521, 152 L.Ed.2d 589 (2002). The interpretation advanced by Felix and the EEOC would transform the ADA from an act that prohibits discrimination into an act that requires treating people with disabilities better than others who are not disabled but have the same impairment for which accommodation is sought. We think that the ADA deliberately speaks in terms of eliminating discrimination and thus do not interpret it so broadly as to require the accommodation of impairments that do not limit major life activities whenever the person with an impairment happens to also have a disability.

Kinsella v. Rumsfeld, 320 F.3d 309, (2/2003) According to Voisine's deposition testimony, Peterson explicitly stated prior to the RIF that "the new organization was not going to be able to run with" Kinsella because Peterson "just did not believe that a blind person could run copiers and do print work." And of the eight people terminated in the RIF, only Kinsella was not rehired by either DPS, DFAS's new print shop, which was also under Peterson's supervision, or otherwise by DFAS, whose management Peterson had contacted about rehiring those terminated in the course of the RIF. Boudreau, whom Kinsella had trained, was tapped for the temporary job at DFAS's new print shop despite the fact that she was junior to Kinsella. These circumstances, viewed in their entirety, would permit a reasonable finder of fact to conclude that Peterson used the legitimate RIF as an opportunity to terminate Kinsella because of his disability.
Failure to Promote To establish a prima facie case of discriminatory failure to promote, a plaintiff must "allege that she or he applied for a specific position or positions and was rejected therefrom, rather than merely asserting that on several occasions she or he generally requested promotion." Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2d Cir. 1998). Kinsella does not allege and the record does not indicate that he applied for specific positions or that positions became available and were filled by others,3 but merely that he repeatedly requested a promotion. Kinsella thus failed to establish a prima facie case that he was denied promotion because of his disability.
CONCLUSION For the foregoing reasons, the order of the district court is affirmed with respect to the failure to promote claim and vacated with respect to the unlawful termination claim, and the case is remanded for further proceedings consistent with this opinion.

Peters v. Baldwin Union Free School Dist., 320 F.3d 164, (2/2003)  The district court's dismissal of the Rehabilitation Act claim and the analogous state law claim was based on its finding that Peters had failed to show she had a protected disability within the meaning of the Act, because she failed to show that she was perceived by the defendants as incapable of working in a broad range of jobs. Peters presented evidence from which a reasonable jury could have concluded that the defendants terminated her because they perceived her as suicidal and therefore as substantially limited in her ability to care for herself. This was sufficient to support a claim under the Act and the Human Rights Law. We therefore vacate the dismissal of the Rehabilitation Act and Human Rights Law claims.

E.E.O.C. v. J.B. Hunt Transport, Inc., --- F.3d ---, (2/2003)  J.B. Hunt Transport, Inc. chose not to employ over-the-road truck drivers who used prescription medications with side effects that might impair driving ability. The Equal Employment Opportunity Commission argued that under the Americans with Disabilities Act, Hunt's decision violated the rights of job applicants using those medications. We disagree.

E.E.O.C. v. J.B. Hunt Transport, Inc., --- F.3d ---, (2/2003) Dissent

Treglia v. Town of Manlius, 313 F.3d 713 (12/2002)

Weixel v. Board of Educ. of City of New York, 287 F.3d 138 (3/2002) Plaintiff-appellants Rose Weixel ("Rose") and her mother, Frances Weixel, ("Ms. Weixel") (collectively, "plaintiffs") appeal from an August 8, 2000, judgment of the United States District Court for the Southern District of New York (Deborah A. Batts, District Judge) that dismissed plaintiffs' amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief could be granted. See Weixel v. Board of Educ. of City of New York, No. 97-CV-9367, 2000 WL 1100395 (S.D.N.Y., August 7, 2000). Because we find that the district court failed to construe the plaintiffs' pro se complaint liberally, and because we find that plaintiffs have stated claims for relief under several of their causes of action, we reverse as to the district court's dismissal of plaintiffs' causes of action under the Rehabilitation Act, the Americans with Disabilities Act ("ADA"), the Individuals with Disabilities in Education Act ("IDEA"), and Section 1983, and we direct the district court to consider plaintiffs' substantive and procedural due process claims, conspiracy claims under 42 U.S.C. 1985, and their supplemental state law claims. However, we affirm as to the dismissal of their claims under the Equal Protection Clause of the Fourteenth Amendment and the Federal Educational Rights and Privacy Act of 1974 ("FERPA").

Regional Economic Community Action Program Inc. v. City of Middleton, 281 F.3d 333 (2/2002)   The plaintiff, Regional Economic Community Action Program, Inc. ("RECAP"), and the intervenor-plaintiff, the United States of America, brought this action under the Fair Housing Act, 42 U.S.C. 3601 et seq. ("FHA"), the Americans with Disabilities Act, 42 U.S.C. 12101 et seq. ("ADA"), and the Rehabilitation Act, 29 U.S.C. 701 et seq. They alleged that the defendants -- the City of Middletown ("Middletown" or "the City"), located in Orange County, New York, the City of Middletown Planning Board ("Planning Board"), and Joseph DeStefano, the mayor of Middletown -- discriminated against RECAP on the basis of its clients' disabilities by refusing to grant RECAP a special-use permit authorizing it to establish two halfway houses for recovering alcoholics. The United States District Court for the Southern District of New York (Charles L. Brieant, Judge) granted summary judgment to the defendants on all of the plaintiffs' claims. Because we find sufficient evidence from which a reasonable juror could infer disparate treatment by the City and the Planning Board and retaliation by the City and DeStefano, we vacate the district court's grant of summary judgment as to those claims. But we affirm the court's grant of summary judgment on the disparate impact claim against all three defendants and the discrimination claims against DeStefano.

Giordano v. City of New  York, 274 F.3d 740 (12/2001)  We affirm the district court's dismissal of Giordano's ADA claim because we agree that he failed to offer evidence from which a reasonable juror could conclude that the defendants "regarded him as disabled" within the meaning of the ADA. We also affirm the court's dismissal of Giordano's 1983 claims. The record contains nothing to suggest that the alleged disparate treatment of Giordano and Officer Rowe resulted from any illicit motivation of the defendants. We recognize that we have not yet decided whether the Supreme Court's decision in Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (per curiam), altered this Circuit's rule that a "class of one" plaintiff such as Giordano must show an illicit motivation in order to state a cognizable equal-protection claim. See Harlen Assocs. v. Inc. Vill. of Mineola, No. 01-7039, 2001 WL 1468777, at *3, 2001 U.S. App. LEXIS 24808, at *10-*11 (2d Cir. Nov. 16, 2001). We affirm without reaching this issue, however, because Giordano did not in any event introduce evidence to show that the defendants "intentionally treated [him] differently from others similarly situated." Olech, 528 U.S. at 564 (emphasis added). Finally, we agree with the district court that contrary to Giordano's assertion, due process of law did not require the members of the Article II Board to conduct a personal physical examination of Giordano before recommending his discharge from the NYPD.

Because we hold that Giordano failed to introduce evidence to suggest that the defendants "regarded him as disabled," we do not reach the other ADA issues discussed by the district court: whether patrol duty is an "essential function" of police work, and, if so, whether Giordano was able to perform this function with or without reasonable accommodation. Finally, we disagree with the district court's conclusion that Giordano's pendent state-law claims necessarily fail because even though those laws "have a broader definition of disability than does the ADA," they otherwise "use the same analytical framework as the ADA." Giordano v. City of New York, No. 99 Civ. 3649, 2001 WL 204202, at *7, 2001 U.S. Dist. LEXIS 2039, at *19 (S.D.N.Y. Feb. 28, 2001). We therefore reverse the district court's grant of summary judgment against Giordano on his pendent state-law claims and remand with instructions to dismiss them without prejudice to their renewal in an appropriate state forum.

Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208 (8/2001) Plaintiff Diane Lovejoy-Wilson, a former employee of defendant NOCO Motor Fuel, Inc. ("NOCO"), brought an action pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. 12101-213, and the New York Human Rights Law ("NYHRL"), New York Executive Law 296-301, in the United States District Court for the Western District of New York alleging that NOCO discriminated against her on the basis of her disability by constructively discharging her, failing to accommodate her disability, 1 failing to promote her because of her disability, and retaliating against her for complaining about her treatment. The district court (John T. Curtin, Judge) granted summary judgment to the plaintiff with respect to her status as a qualified individual with a disability under the ADA, but granted summary judgment to the defendant on all of the plaintiff's substantive claims. 2 We affirm the district court's grant of summary judgment as to the claim for failure to promote to the position of manager; vacate the district court's order granting summary judgment with respect to the plaintiff's claims of discrimination based on failure to promote to the position of assistant manager and retaliation; and dismiss the cross-appeal.

Garcia v. S.U.N.Y. Health Sciences Center of Brooklyn, 280 F.3d 98 (9/2001) prior to today, we have held that a plaintiff may recover money damages under either Title II of the ADA or 504 of the Rehabilitation Act upon a showing of a statutory violation resulting from "deliberate indifference" to the rights secured the disabled by the acts. Bartlett v. New York State Bd. of Law Examiners, 156 F.3d 321, 331 (2d Cir. 1998), vacated on other grounds by 527 U.S. 1031 (1999); see also Duvall v. County of Kitsap, No. 99-35934, 2001 WL 909293, at *9-11, __ F.3d __, __ (9th Cir. Aug. 14, 2001). Although today's decision alters that holding by requiring proof of discriminatory animus or ill will for Title II damage claims brought against states, nothing we have said affects the applicability of the deliberate indifference standard to Title II claims against non-state governmental entities. Moreover, deliberate indifference remains the necessary showing for 504 claims since the Rehabilitation Act was enacted pursuant to Congress's Spending Clause authority and therefore does not require that damage remedies be tailored to be congruent and proportional to the proscriptions of the Fourteenth Amendment.6

Second, our holding that private damage claims under Title II require proof of discriminatory animus or ill will based on disability does not affect Title II's general applicability to the states, see Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 555-57 (1984), as no such challenge was raised in this appeal, cf. Thompson, 258 F.3d at 1255 n.11. Thus, actions by private individuals for injunctive relief for state violations of Title II have not been foreclosed by today's decision, see Ex parte Young, 209 U.S. 123 (1908); see also Garrett, 121 S.Ct. at 968 n.9.

Parker v. Sony Pictures Entertainment, Inc., 260 F.3d 100 (8/2001)  Appellant Douglas Parker brought this action claiming that his former employer, Sony Pictures Entertainment, Inc. ("SPE"), discharged him because of his disability in violation of the Americans with Disabilities Act, 42 U.S.C. 12101 et seq. (1994 & Supp. 1999) ("the ADA") and the New York State Human Rights Law, N.Y. Exec. Law 296 (McKinney 1993 & Supp. 1999). Parker also claimed that SPE violated the ADA by retaliating against him for filing a complaint with the Equal Employment Opportunity Commission, as well as denied him medical leave in violation of the Family and Medical Leave Act, 29 U.S.C. 2612(a)(1)(D) (1999) ("the FMLA").

On September 4, 1998, the United States District Court for the Southern District of New York (Lewis A. Kaplan, Judge) granted the defendants' motion for summary judgment on Parker's discriminatory discharge claims and denied Parker's cross-motion for leave to amend his complaint. The court denied the motion for summary judgment on Parker's other claims, and denied CPI's motion for summary judgment on the ground that it was not Parker's employer. For the reasons that follow, we vacate the district court's grant of summary judgment in favor of SPE on the discriminatory discharge claims, but affirm its denial of Parker's cross-motion for leave to amend his complaint. We also affirm the court's denial of summary judgment in favor of CPI.

Parker v. Sony Pictures Entertainment, Inc., Dissent 260 F.3d 100 (8/2001)

Wright v. Giuliani, 230 F.3d 543 (10/2000)  Plaintiffs, five homeless individuals who have been diagnosed with clinical symptomatic Human Immunodeficiency Virus ("HIV") or Advanced Immune Deficiency Syndrome ("AIDS"), brought suit on behalf of themselves and a putative class alleging that various officials of the City of New York have failed to provide them with emergency housing that accommodates their disability, as required by Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794 (the "Rehabilitation Act") and Title II of the Americans with Disabilities Act, 42 U.S.C. 12131 (the "ADA"). On expedited appeal, they challenge the portion of a memorandum and order entered June 14, 2000 in the United States District Court for the Southern District of New York (Pauley, J.) denying their request for preliminary injunctive relief. We affirm for the reasons set forth below.

Bartlett v. New York State Bd. of Law Examiners, 226 F.3d 69 (8/2000) We now hold that, although the district court properly considered corrective or mitigating measures such as Bartlett's self-accommodations,>see, e.g., Albertson's, 527 U.S. at 565-66, it nevertheless applied the wrong legal standard when it found that Bartlett was not substantially limited with respect to reading because she has "roughly average reading skills (on some measures) when compared to the general population.">Bartlett I, 970 F.Supp. at 1120. It is not enough that Bartlett has average skills on "some" measures if her skills are below average on other measures to an extent that her ability to read is substantially limited. In fact, the district court found that Bartlett reads "slowly, haltingly, and laboriously." Id. at 1099; see also id. ("She simply does not read in the manner of an average person."). Therefore, we remand for the district court to determine, in the first instance, whether Bartlett is substantially limited in the major life activity of reading by her slow reading speed, or by any other "conditions, manner, or duration" that limits her reading "in comparison to most people." See 28 C.F.R. Pt. 35, App. A, 35.104 (1999).

We also disagree with the district court's analysis of whether Bartlett was substantially limited with respect to the major life activity of working. The district court held that "[i]f plaintiff's disability prevents her from competing on a level playing field with other bar examination applicants, then her disability has implicated the major life activity of working." Bartlett I, 970 F.Supp. at 1121. However, it is not enough for a plaintiff to prove that an impairment "implicates" a major life activity -- she is required to prove that the impairment "substantially limits" that activity. In this case, it has not been shown that Bartlett's inability to practice law results from her reading impairment, rather than from other factors that might prevent her from passing the bar. Therefore, we remand for the district court to determine, if necessary, whether it is Bartlett's impairment, rather than factors such as her education, experience or innate ability, that "substantially limits" her ability to work.

Bartlett v. New York State Bd. of Law Examiners, 156 F.3d 321 (9/1998)

Baldwin v. U.S. Army, 223 F.3d 100 (2000)  Philip Bernard Baldwin, who served in the United States Army from 1985 to 1992, originally filed a complaint against 54 defendants alleging that, over the past twelve years, the defendants had, inter alia, plotted against him to conceal evidence, to damage his car, and to murder him. The United States District Court for the Western District of New York (William M. Skretny, Judge) dismissed Baldwin's complaint after finding that the allegations contained there were "fantastic, delusional and incredible." The court did, however, permit Baldwin to file an amended complaint, limiting that complaint to employment discrimination claims Baldwin might wish to make against the United States Army. The trial court allowed Baldwin to spell these out because, in his original complaint, Baldwin had appeared to assert a claim regarding the denial of an EEOC complaint that he had filed. The court thought that Baldwin, as a pro se litigant, should have an opportunity to assert any claims associated with this denial that he might have.

Baldwin filed an amended complaint alleging that the Army had violated Title VII of the Civil Rights Act ("Title VII"), 42 U.S.C. 2000 et seq., the Americans with Disabilities Act ("ADA"), 42 U.S.C. 12101 et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. 621 et seq. The Army then filed a motion to dismiss Baldwin's complaint under Rule 12(b)(1) of the Federal Rules of Civil Procedure, arguing that, because Baldwin's allegations of discrimination arose out of or were incident to his service in the Army, they were barred. The district court granted the Army's motion.

Baldwin appeals. He contends that his discrimination claims are not barred. We affirm the district court's dismissal of Baldwin's suit

DiSanto v. McGraw-Hill, Inc./Platt's Div., 220 F.3d 61 (2000)  The district court dismissed this employment claim, asserted under, inter alia, the Americans with Disabilities Act ("ADA"), 42 U.S.C. 12101 et seq., on the ground that plaintiff failed to reconcile his application for Social Security disability benefits, which disclaimed ability to work, with the required showing under the ADA that he is able to perform essential job functions. We affirm.

Cellular Phone Taskforce v. F.C.C., 217 F.3d 72 (2000) 

E.E.O.C. v. Staten Island Savings Bank, 207 F.3d 144 (2000)  Appeal from judgments of the United States District Court for the Eastern District of New York (Reena Raggi, Judge ) and the United States District Court for the Southern District of New York (Whitman Knapp, Judge ) dismissing under Fed. R. Civ. P. 12(b)(6) the respective complaints of the Equal Employment Opportunity Commission on the sole ground that Title I of the Americans with Disabilities Act, 42 U.S.C. 12111-12117, does not forbid employers from offering long-term disability benefit plans that provide less coverage for mental and emotional disabilities than for physical disabilities.    Affirmed.

Jackan v. New York State Dept. of Labor, 205 F.3d 562 (2000)  Plaintiff Patrick C. Jackan appeals from a decision of the United States District Court for the Northern District of New York (Thomas J. McAvoy, C.J.) entering judgment for defendant the New York State Department of Labor after a bench trial adjudicating claims brought under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. The District Court rejected the plaintiff's contention that the defendant was required by these statutes to transfer him to a vacant position on the grounds, inter alia, that no vacancy existed. The Court of Appeals (Leval, J.) holds that the plaintiff bears the burden of proving that a vacancy existed and that Jackan did not meet that burden.  Affirmed.

Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28 (1999)  Plaintiffs Joseph M. Pallozzi and Lori R. Pallozzi appeal from the judgment of the United District Court for the Northern District of New York (Frederick J. Scullin, Jr., Judge ) dismissing their complaint against Defendant Allstate Life Insurance Company for failure to state a claim under Fed. R. Civ. P. 12(b)(6). The complaint alleged that Allstate discriminated against Plaintiffs on the basis of their mental disabilities by refusing to issue them a joint life insurance policy, thereby violating Title III of the Americans with Disabilities Act, 42 U.S.C. 12181-12189. The district court questioned whether Title III was intended to regulate insurance underwriting practices, and ruled that, in any event, the Act does not prohibit insurers from denying an individual coverage because of his disability unless the denial lacks actuarial justification. The court dismissed the complaint because it failed to allege that the denial lacked actuarial justification. The Court of Appeals, Leval, J., holds (i) Title III of the ADA does regulate insurance underwriting practices in at least some circumstances, (ii) the McCarran-Ferguson Act does not bar application of the ADA to insurance underwriting as the ADA "specifically relates to the business of insurance," and (iii) the district court erred in dismissing the complaint under Fed. R. Civ. P. 12(b)(6). Vacated and remanded.

Leonard F. v. Israel Discount Bank of New York, 199 F.3d 99 (1999) Plaintiff Leonard F. appeals from the judgment of the United States District Court for the Southern District of New York (Charles L. Brieant, Jr., Judge ) dismissing his complaint against Defendant The Metropolitan Life Insurance Company under Fed. R. Civ. P. 12(b)(6) for failure to state a claim on which relief may be granted. The complaint alleged that MetLife discriminated against Leonard F. on the basis of his mental disability in violation of Title III of the Americans with Disabilities Act, 42 U.S.C. 12181-12189, by furnishing him a disability policy as a benefit of his employment (at a bank) that limited coverage for mental disabilities to two years without similarly limiting coverage for physical disabilities. The district court held that, because MetLife's policy is consistent with state law and does not constitute a subterfuge to evade the purposes of the Act, MetLife is exempt from Plaintiff's Title III claim under the "safe harbor" provision of Section 501(c) of the ADA, 42 U.S.C. 12201(c). The Court of Appeals, Leval, J., holds the district court correctly interpreted the term "subterfuge," in accordance with the Supreme Court's decision in Public Employees Retirement Sys. v. Betts , 492 U.S. 158, 171 (1989), as inapplicable to insurance policies adopted prior to the enactment of the ADA; however, the court erred in dismissing Plaintiff's claim under Fed. R. Civ. P. (12)(b)(6) based on its finding that MetLife adopted its policy prior to the ADA's enactment, because the court relied on matter outside the pleadings to make this finding and failed to afford Plaintiff an opportunity to take discovery and contest the issue. Vacated and remanded for determination whether MetLife adopted the policy in question prior to enactment of the ADA.

Heyman v. Queens Village Committee for Mental Health for Jamaica Community Adolescent Program, Inc., 198 F.3d 68 (1999)  The question presented is whether an employee who was known by his employer to have lymphoma, but who had not become symptomatic at the time he was fired, can proceed with a discriminatory discharge claim under the Americans with Disabilities Act, 42 U.S.C. 12101 et seq. ("ADA").    Plaintiff Robert Heyman appeals from a judgment of the United States District Court for the Eastern District of New York (Sterling Johnson, Jr., Judge ), granting defendants' motion for summary judgment on plaintiff's claim under the ADA and declining to exercise supplemental jurisdiction over plaintiff's claims under New York State and local law. The District Court held that plaintiff had not established a prima facie case that he was "disabled" as the term is defined under the ADA. We conclude that plaintiff has established a prima facie case that defendants regarded him as impaired, thus satisfying one of the statutory definitions of "disabled." Accordingly, we vacate the judgment and remand for further proceedings.

Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155 (1999)  Plaintiff Michael Sarno appeals from a judgment of the United States District Court for the Southern District of New York, Robert L. Carter, Judge , dismissing his complaint alleging that defendant Douglas Elliman-Gibbons & Ives, Inc. ("DEGI"), discriminated and retaliated against him in violation of the Americans With Disabilities Act ("ADA"), 42 U.S.C. 12101 et seq . (1994), and alleging that DEGI terminated his employment without giving him notice of the amount of leave to which he was entitled under the Family and Medical Leave Act ("FMLA" or the "Act"), 29 U.S.C. 2601 et seq . (1994). The district court granted summary judgment in favor of DEGI, dismissing the ADA claims on the ground that Sarno had not adduced evidence of a disability within the scope of the ADA, and dismissing the FMLA claim on the ground that Sarno had received every substantive benefit to which he was entitled under that Act. On appeal, Sarno pursues his contention that the termination of his employment violated his rights under the FMLA, and he contends that there were genuine issues of fact to be tried as to his ADA retaliation claim. Finding no basis for reversal, we affirm.

Adams v. Citizens Advice Bureau, 187 F.3d 315 (1999)

Mitchell v. Washingtonville Cent. School Dist., 190 F.3d 1 (1999)  Lawrence A. Mitchell, Jr. appeals from an order of the United States District Court for the Southern District of New York (Barrington D. Parker, Jr., J. ) granting summary judgment to Defendant-Appellee Washingtonville Central School District. Mitchell brought a claim under the Americans with Disabilities Act ("ADA"), 42 U.S.C. 12101 et seq ., following the termination of his employment as Head Custodian at the Washingtonville High School. In granting summary judgment, the district court held that based on Mitchell's prior representations to the New York Workers' Compensation Board and the United States Social Security Administration in obtaining benefits that he was unable to work because he could not stand or walk, Mitchell was judicially estopped from asserting in the present ADA action that he could function other than in a sedentary position. Concluding that Mitchell therefore failed to show that he was able to perform the essential functions of the Head Custodian position and so make out a prima facie case under the ADA, the district court dismissed his claim. We affirm.

Muller v Costello, 187 F3d 298 (1999)  The Court in holding that the ADA does not violate the 11th Amendment stated "the anti-discrimination provisions of the ADA provide a narrowly tailored and reasonable response to the problem of discrimination against people with disabilities."

Lai v. New York City Government, 163 F.3d 729 (1998).  It is not a violation of the ADA for New York City to grant a special parking permit to severely handicapped individuals who are either NYC residents, attend school in NYC or work in NYC. Plaintiff's New Jersey disability parking permit was valid in New York State but did not convey the same privileges as the NYC permit. Court held discrimination was not based on disability but on residence.

Colwell v. Suffolk County Police Department, 158 F.3d 635 (1998).  Court reversed verdict for three police officers in a jury trial that they were denied promotions as a result of discrimination in violation of the ADA. Court held that the evidence adduced at trial was insufficient to show officers were disabled within the meaning of the ADA.

Bartlett v. New York State Bd. of Law Examiners, 156 F.3d 321 (1998).  Bar exam applicant with a learning disability was disabled within the meaning of the ADA and entitled to accommodations in taking the bar exam. She was also entitled to compensatory damages and reimbursement for those examinations she took without accommodation.

Doe v. Pfrommer, 148 F.3d 73 (1998). 

Cercpac v. Health and Hospitals Corp., 147 F.3d 165 (1998).  Court dismissed action brought under 504 and ADA by association and individuals parents of disabled children challenging closing of a specialized health care facility that treated children with developmental disabilities. Court held that plaintiffs failed to state a claim since they only alleged that closing the facility would reduce care but did not allege that ant plaintiff, by reason of disability, was being denied care furnished to individuals without disabilities.

Reeves v. Johnson Controls World Services, Inc., 140 F.3d 144 (1998).  Plaintiff's mental impairment, panic disorder with agoraphobia, did not qualify as a disability under the ADA. Everyday mobility as narrowly defined to fit the circumstances of plaintiff's impairment was not major life activity within the meaning of the ADA. Plaintiff's condition did, however, constitute disability within the meaning of the New York Human Rights Law.

Ryan v. Grae & Rybicki, P.C., 135 F.3d 867 (1998).  Employee who suffered from colitis was not disabled under the ADA. Assuming that ability to control elimination of bodily waste was major life activity under the ADA, such activity was not substantially limited by plaintiff's colitis nor did it substantially limit her ability to care for herself.

Francis v. City of Meriden, 129 F.3d 281 (1997).  Firefighter fired for not meeting weight standard did not allege he was disabled nor that his employer perceived him as disabled and therefore could not maintain claim under the ADA.

Stone v. City of Mount Vernon, 118 F.3d 92 (1997).  Firefighter sued city and fire department under ADA and 504 for refusing to assign him to a light duty position after an accident left him a paraplegic. District Court granted defendants Summary Judgment holding plaintiff could not perform the essential functions of a firefighter. Court of Appeals vacated judgement and remanded because there were genuine issues of fact as to whether fire suppression is an essential function of a position in certain of the fire department's specialized bureaus and whether the department could reasonable accommodate him by assigning him to such a position.

Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d 37 (1997).  City denied building permit for drug and alcohol rehabilitation center. Court found that ADA and 504 applied to city's zoning decisions. Plaintiffs demonstrated requisite irreparable harm for injunctive relief. Center had standing under ADA and 504 and offered evidence of city's discriminatory motives in denying building permit.

Wernick v. Federal Reserve Bank of New York, 91 F.3d 379 (1996).  Plaintiff sued employer under ADA and 504 alleging failure to accommodate her back problems. Court upheld grant of summary judgment for employer. Employer had provided plaintiff with ergonomic furniture as well as allowing her to move around and stretch periodically.

Teahan v. Metro-North Commuter R. Co., 80 F.3d 50 (1996).  Court found employee who sued under 504 was not discharged because of his drug/alcohol dependent disability but because of excessive absenteeism.

Flight v. Gloeckler, 68 F.3d 61 (1995).  504 does not preclude providing different benefits to individuals based upon their disability. It only requires that disabled individuals not be denied benefits provided non-disabled individuals. Plaintiff's denial of funding for a van modification by the vocational rehabilitation agency was not based upon his disability but on his inability to drive which the court held is not a major life activity.

Staron v. McDonald's Corp., 51 F.3d 353 (1995).  Court reversed dismissal by district court of plaintiff's suit seeking total ban of smoking in fast food restaurants. Court held that determination of whether a modification is required under the ADA is reasonable involved fact-specific, case by case inquiry. The ADA did not preclude public accommodations from banning smoke for those with smoke sensitive allergies. Plaintiffs stated triable cause of action for violation of ADA based on allowing smoking in restaurants.

Heilweil v. Mount Sinai Hosp., 32 F.3d 718 (1994).  The court affirmed the lower court decision dismissing plaintiff's claim of discrimination because plaintiff was not a handicapped person under the 504 of the Act. Plaintiff established that she was a person with a handicap (asthma) under 504. However, she failed to show that her handicap affected the major life activity of working. She could not work in the blood bank of the defendant hospital because of the fumes. However, she acknowledged she could work elsewhere in the hospital where she was free from the fumes found in the blood bank.

Marshall v. Switzer, 10 F.3d 925 (1993).  Plaintiff could bring 1983 action to enforce his rights under Title I of the Rehabilitation Act against state vocational rehabilitation agency.

Cushing v. Moore, 970 F.2d 1103 (1992).  Court affirmed lower courts dismissal of plaintiffs' claims that defendant's termination of their take home methadone treatment violated 504. Defendant terminated plaintiffs' treatment based on their unemployment whereas plaintiffs' claimed that their unemployment was a direct result of their disability (drug addiction.) Court held the rehabilitation act does not create a cause of action based on a handicap that is directly related to providing the very service at issue.

Guice-Mills v. Derwinski, 967 F.2d 794 (1992).  Plaintiff was an individual with a handicap under 504 because depressive illness and medication regime interfered with her ability to arrive at work on time. However, her condition rendered her not otherwise qualified for the position of head nurse. Defendant's offer to reassign her as a staff nurse for a shift compatible with her medical condition at no decrease in grade, salary or benefits constituted a reasonable accommodation.

Gilbert v. Frank, 949 F.2d 637 (1991).  Court found plaintiff was disabled under the act in that "persons whose kidneys would cease to function without mechanical assistance, or whose kidneys do not function sufficiently to rid their bodies of waste matter without regular dialysis" are substantially limited in their ability to care for themselves. Despite this finding, the court held that plaintiff was not otherwise qualified for the job of Mail Distribution Clerk because he not meet the lifting requirements of the job. Reasonable accommodation does not mean elimination of any of the job's essential functions.

Marsh v. Skinner, 922 F.2d 112 (1990).  Plaintiff who suffered from a mental impairment sued defendant under 504 because defendant granted half fare benefits to physically handicapped. Court found he was not otherwise qualified because he did not meet the definition of handicapped in the Mass Transportation Act which defined handicapped individuals as being unable without special planning or special facilities or design to utilize public transportation facilities and services effectively.

P.C. v. McLaughlin, 913 F.2d 1033 (1990).  Rehabilitation Act does not require all handicapped persons to be provided with identical benefits. The central purpose of 504 is to assure that handicapped individuals receive evenhanded treatment in relation to the non-handicapped.

Rothschild v. Grottenthaler, 907 F.2d 286 (1990).  School district was required to provide sign language interpreters for the deaf parents of hearing children at certain school initiated activities related to a child's academic and/or disciplinary progress but not graduation.

U.S. v. University Hosp., State University of New York at Stony Brook, 729 F.2d 144 (1984).  Plaintiff was not entitled to handicapped infant's medical records under 504 whose parents had refused to consent to corrective surgical procedures.

Dopico v. Goldschmidt, 687 F.2d 644 (1982).  The Court, in reversing the lower court, held that plaintiffs, representing all wheelchair bound handicapped individuals, stated a cause of action against defendants under 504 for failure to make the special efforts required by federal law toward making mass transit in New York City available to the elderly and handicapped. 504 does require at least modest affirmative steps to accommodate the handicapped. Remanded for further proceedings.

Doe v. New York University, 666 F.2d 761 (1981).  Lower court denied plaintiff who had a mental disability a preliminry injunction against defendant and granted summary judgment to defendant. Plaintiff had been asked to withdraw as a medical student from defendant. Court affirmed the denial of injunction holding plaintiff had not shown a likelihood of success on the merits. Court also reversed the grant of summary judgement to defendant. While finding that defendant would be likely to prevail at trial, material facts relied upon by defendant are not attested to on personal knowledge.

New York State Ass'n for Retarded Children v. Carey, 612 F.2d 644 (1979).  Rehabilitation Act was violated by excluding certain mentally retarded children from regular school classes because they were carriers of serum hepatitis.