C. v. New York State and Local Retir
Filing
56
AMICUS BRIEF, <EDIT by Clerk's Office>, FILED. Service date serviceTextdate,.,SKIP)[376669] [11-2215]
<![CDATA[
11-2215-CV
UNITED STATES COURT OF APPEALS
for the
SECOND CIRCUIT
MARY JO C.,
Appellee,
-againstNEW YORK STATE AND LOCAL RETIREMENT SYSTEM, et al.,
Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK
________________________________ ________________________________
BRIEF OF AMICI CURIAE DISABILITY ADVOCATES, INC., DRVT,
NATIONAL DISABILITY RIGHTS NETWORK, AND STATE OF
CONNECTICUT OFFICE OF PROTECTION AND ADVOCACY FOR
PERSONS WITH DISABILITIES
IN SUPPORT OF PLAINTIFF-APPELLANT
__________________________________________________________________________________________________
JO ANNE SIMON, P.C.
356 Fulton Street
Brooklyn, New York 11201
(718) 852-3528
Attorneys for Amici Curiae
TABLE OF CONTENTS
Page
INTERESTS OF THE AMICUS CURIAE……………………………………..1
SUMMARY OF ARGUMENTS………………………………………………..4
ARGUMENTS…………………………………………………………………..5
I.
STRICT ENFORCEMENT OF STATUTORY FILING
DEADLINES WHEN INDIVIDUALS‟ DISABILITIES
HAVE PREVENTED THEM FROM TIMELY FILING AN
APPLICATION, WOULD DENY SUCH INDIVIDUALS
AN EQUAL OPPORTUNITY TO PARTICIPATE IN AND
BENEFIT FROM THE STATE‟S PROGRAM OR
ACTIVITY AND FRUSTRATE CONGRESS‟ INTENT
WHEN IT ENACTED THE AMERICANS WITH
DISABILITIES ACT………………………………………………..…..5
A. When Strict Enforcement of a Statutory Filing Deadline
Acts As a Barrier to Programs, Services, or Activities of
a State or Local Governmental Entity, it Violates the ADA……..…..6
B. Waiver Of A Statutory Filing Deadline Would Constitute
A Reasonable Modification Under The Americans with
Disabilities Act………………………………………………………..9
C. Waivers of Statutory Filing Deadlines Are Not Per Se
Fundamental Alterations………………………………………….…14
D. Strict Enforcement of Statutory Filing Deadlines in these
Circumstances Also Frustrates State Law and Public Policy……….17
1. Modifications to Permit Equal Access to Disability
Rights Benefits are not a Fundamental Alteration . . . . . . . . . 18
ii
E. Strict Enforcement of a Statutory Filing Deadline is Likely to
Cause Thousands of Individuals with Disabilities to Live
Under Economically Depressed Circumstances………………….…20
II.
DISCRIMINATION ON THE BASIS OF DISABILITY THAT
IS A RESULT OF A PUBLIC EMPLOYER‟S MANAGEMENT
OF A RETIREMENT BENEFITS PROGRAM IS INCLUDED
AMONG THE ACTIONS PROHIBITED UNDER TITLE II OF
THE AMERICANS WITH DISABILITIES ACT…………………..…22
CONCLUSION………………………………………………………………..….28
iii
TABLE OF AUTHORITIES
Cases:
Page
Ass‟n of Intern. Auto. Mfrs., Inc. v. Abrams,
84 F.3d 602 (2d Cir. 1996)…………………………………………………..8
Barber v. Colorado Dep‟t of Revenue,
562 F.3d 1222 (10th Cir. 2009)………………………………………………7
Barden v. Sacramento,
292 F.3d 1073 (9th Cir. 2001)…………………………………….……10, 23
Bledsoe v. Palm Beach Cnty. Soil & Water Conservation Dist.,
133 F.3d 816 (11th Cir. 1998)………………………………………………27
Bloom v. N.Y.C. Bd. of Educ. Teachers Ret. Sys.,
No. 1:00cv02728, 2003 WL 1740528 (S.D.N.Y. April 2, 2003)………….27
Bd. of Tr. of Univ. of Ala. v. Garrett,
531 U.S. 356 (2001)……………………………………………………26, 28
Bolmer v Oliveira,
594 F.3d 134 (2d Cir.2010)………………………………………………..26
Borkowski v. Valley Cent. Sch. Dist.,
63 F.3d 131 (2d Cir. 1995)…………………………………………4, 11, 12
Bragdon v. Abbott,
524 U.S. 624 (1998)………………………………………………………26
Cable Television Ass'n of .N.Y., Inc. v. Finneran,
954 F.2d 91(2d Cir. 1992)…………………………………………………..8
Castellano v. City of N.Y.,
142 F.3d 58 (2d Cir. 1998)……………………………………………….18
iv
City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432 (1985)…………………………………………………………4
Currie v. Grp. Insurance Comm‟n,
290 F.3d 1(1st Cir. 2002)…………………………………………...………26
Crosby v. Nat‟l Foreign Trade Council,
530 U.S. 363(2000)………………………………………………………….8
Doe v. Univ. of M.D. Med. Sys. Corp,
50 F.3d 1261 (4th Cir. 1995)………………………………………………27
Dopico v. Goldschmidt,
687 F.2d 644(2d Cir. 1982)……………………………………………….13
Henderson ex rel. Henderson v. Shinseki,
131 S.Ct. 1197 (2011)…………………………………………………14, 15
Henrietta D. v. Bloomberg,
331 F.3d. 261(2d Cir 2003)……………………………….…………7, 10, 24
Hillsborough Cty., Fla. v. Automated Med. Labs, Inc.,
471 U.S. 707(1985)………………………………………………..………..8
Innovative Health Sys., Inc. v. City of White Plains,
117 F.3d 37(2d Cir.1997)……………………………………..……………24
Johnson v City of Saline,
151 F.3d 564(6th Cir.1998)…………………………………...……………10
Lee v. City of Los Angeles,
250 F3d 668 (9th Cir. 2001)…………….…………………….…………….10
Marsh v. Rosenbloom,
499 F.3d 165 (2d Cir. 2007)…………………………………………………8
Mary Jo C. v. N.Y.S. & Local Ret. Sys. & Islip Pub. Library,
No. 09-CV 5635, 2011WL 1748572 (E.D.N.Y. May 5, 2010)……...…11, 15
v
Matter of Grossman v. McCall,
262 A.D.2d 923(3d Dept. 1999)……………………………………………15
Olmstead v. Zimring,
527 U.S. 581(1999)…………………………………………………...……26
Olson v. N.Y.,
No. 2:04cv00419, 2007 WL 1029021 (E.D.N.Y. March 30, 2005)…….…26
Pa. Dep't of Corrections v. Yeskey,
524 U.S. 206 (1998)…………………………………………………..……24
PGA Tour, Inc. v. Martin,
532 U.S. 661(2001)…………………………………………….………11, 19
Quinones v. City of Evanston, Ill.,
58 F.3d 275 (7th Cir. 1995)…………………………………………………..7
Shannon v. N.Y.C. Transit Auth.,
332 F.3d 95(2d Cir. 2003)…………………………………………………18
Skidmore v. Swift & Co.,
323 U.S. 134 (1944)………………………………………………………26
Shaw v. Delta Airlines, Inc.,
463 U.S. 85 (1983)…………………………………………………………8
Taylor v. Phoenixville,
184 F.3d 296 (3d Cir. 1999)…………………………………………….…16
Transp. Workers Union v. NYC Transit Auth.,
342 F.Supp.2d 160 (S.D.N.Y. 2004)……………………………………….27
Weixel v. Bd. of Educ.,
287 F.3d 138 (2d Cir.2002)…………………...……………………………10
Williams v. Gen. Foods Corp.,
492 F.2d 399 (7th Cir.1974)………………………………………………….7
vi
Winokur v. Office of Court Admin.,
190 F.Supp.2d 444 (E.D.N.Y. 2002)………………………………………27
Yeskey v. Pa. Dep‟t of Corr.,
118 F.3d 168 (3d Cir.1997)………………………………………………10
Zervos v. Verizon N.Y.,
252 F.3d 163 (2d Cir.2001)………………………………………………24
Statutes:
29 U.S.C. §794 …………………………………………………………..………11
42 U.S.C. § 12001(A)(6)………………………………………………...………..20
42 U.S.C. §12101(a)(5)………………………………………………….....………6
42 U.S.C. § 12101(B)(1)…………………………………………………..……….6
42 U.S.C § 12101 (3)………………………………………………………………9
42 U.S.C. § 12102(1)……………………………………………………………….9
42 U.S.C. '12102(2)(A)……………………………………………………..……..9
42 U.S.C. '12102(2)(B)……………………………………………………..……..9
42 U.S.C. § 12101(4)…………………………………………………………..….11
42 U.S.C. '12132………………………………………..…………………9, 10, 24
42 U.S.C. §12134…………………………………………………………..……..24
N. Y. Exec. L. § 290(3) (McKinney 2001)……………………………...…….17, 18
N.Y. RSS. Law § 605(a) (McKinney 2007)……………………………..……12, 16
N.Y. RSS. Law §605 (b)(2) (McKinney 2007)………………………...………7, 19
Regulations:
20 C.F.R. § 404.911 (a)(4)………………………………………………………17
vii
20 C.F.R. § 404.968………………………………………………………………15
28 CF.R. § 35.102…………………………………………………………………25
28 CF.R. § 35.103 (b)…………………………………………………………..…25
28 C.F.R. § 35.130(b)(7)……………………………………………………...……7
28 C.F.R. § 35.130(b)(6)…………………………………………………….……23
28 C.F.R. Part 35, Section 35.130 (7)…………………………………………….10
28 C.F.R. 42.510 (b)(8)…………………………………………………….……..25
Other Authorities:
2 Cong. Rec. H8286 (2008) (statement of Rep. George Miller)…………………16
135 CONG. REC. 8506, 8506 (1989) (statement of Sen. Thomas Harkin)……..…20
Amanda Ruggeri, Recession's Bite Hits Americans with Disabilities Extra Hard,
U.S. News, December 5, 2008, http://www.usnews.com/news/national/
articles/ 2008/12/05/recessions-bite-hits-americans-with-disabilitiesextra-hard…………………………………………………………………21
Americans with Disabilities Act: Title II Technical Assistance Manual
II -1.4100(1993)………………………………………………………12, 25
COMM. ON EDUC. & LABOR REP., REP. ON THE ADA AMEND. ACT,
110-730, Part 1 (June 23, 2008). ………………………………………….16
Disability Statistics from the 2008 American Community Survey (ACS,
http://www.disabilitystatistics.org (last visited August 17, 2011)…..……. 21
H.R. REP. 101-485, pt. 3 (1990)………………………………….………23, 24, 25
viii
INTERESTS OF THE AMICUS CURIAE1
The National Disability Rights Network (“NDRN”), is the non-profit
membership association of protection and advocacy (“P&A”) agencies that are
located in all 50 states, the District of Columbia, Puerto Rico, and the United States
Territories. P&A agencies are authorized under various federal statutes to provide
legal representation and related advocacy services, and to investigate abuse and
neglect of individuals with disabilities in a variety of settings. The P&A System
comprises the nation‟s largest provider of legally-based advocacy services for
persons with disabilities. NDRN supports its members through the provision of
training and technical assistance, legal support, and legislative advocacy, and
works to create a society in which people with disabilities are afforded equality of
opportunity and are able to fully participate by exercising choice and selfdetermination.
The State of Connecticut Office of Protection and Advocacy for Persons
with Disabilities (“OPA”) was established by state statute in 1977. Conn. Gen.
Stat. § 46a-7. The State of Connecticut recognized that it “has a special
1
The parties in this case have verbally consented to the filing of the amici’s
brief. Pursuant to Fed. R. App. Proc. § 29(c)(56), amici state that no counsel for
any party has authored this brief in whole or in part, and no person or entity other
than amici, their members, or their counsel contributed monetarily to the
preparation or submission of this brief.
1
responsibility for the care, treatment, education, rehabilitation of and advocacy for
its disabled citizens” and granted OPA the authority to “represent, appear,
intervene in or bring an action on behalf of any person with disability…in any
proceeding before any court…in this state in which matters related to this chapter
are in issue….” Conn. Gen. Stat. §46a-11(7). Individuals with disabilities are
traditionally discriminated against in the provision of services. In the case before
this Court, OPA has an interest in protecting the rights of persons with disabilities
who may be refused reasonable accommodations under the Americans with
Disabilities Act (“ADA”). OPA also has an interest in assuring that the ADA, as a
civil rights statute, is broadly construed. It is in furtherance of its statutory
obligations that OPA appears as amicus curiae.
Since 1989, it has been Disability Advocates, Inc.‟s mission to protect and
advance the rights of adults and children who have disabilities so that they can
freely exercise their own life choices, enforce their rights, and fully participate in
community life. Disability Advocates‟ litigation has defeated efforts by
municipalities to exclude housing for persons with disabilities, assured the
accessibility of movie theaters and state operated community residences,
established the right to counsel at public expense for indigent persons subject to
guardianship proceedings, stopped dangerous experiments on patients in state
2
psychiatric hospitals, and obtained compensation for victims of unnecessary and
unconsented prostate surgery. The Americans with Disabilities Act‟s
comprehensive prohibition on disability discrimination is essential to ensure the
rights of persons with disabilities.
Amicus Curiae DRVT, formerly Vermont Protection and Advocacy, Inc.,
was designated by Vermont‟s Governor as the Protection and Advocacy System
for the State of Vermont in 1991 and is a public interest organization that provides
protection and advocacy services to people with disabilities in Vermont. DRVT
operates throughout Vermont to provide advocacy and legal representation to
individuals with disabilities, including mental health-related disabilities, and
litigates within the Second Circuit and Vermont Courts to redress discrimination
against people with disabilities in areas including protection from abuse and
neglect, access to accommodated services, and freedom from unlawful
discrimination. DRVT often relies on federal statutory protections included in the
Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq., and section
504 of the Rehabilitation Act, 29 U.S.C. § 701 et seq., when conducting its
federally-mandated function of protection and advocacy for individuals with
disabilities.
The lower court‟s interpretation of the ADA would insulate much State
discriminatory conduct from the protections of the ADA, and leave persons with
3
disabilities defenseless against discrimination mandated by state statutes. Thus,
amici urge the Court to reverse the errors below.
SUMMARY OF ARGUMENTS
The decision of the district court, Feuerstein, J., in this case would
erroneously erect a barrier against the application of title II of the Americans with
Disabilities Act, 42 U.S.C. §12101, et seq., (ADA) to programs, activities, benefits
and services of state and local governmental agencies. It would stand for the
proposition that a state, by creating even a protective statute, may nevertheless
through strict enforcement of that statute create disability based obstacles to
accessing such programs, activities, benefits or services.
The decision fails to give effect to the regulations and guidance of federal
agencies charged with enforcement of the ADA which requires that state and local
laws may not be strictly construed so as to have the effect of discriminating against
individuals with disabilities.2 Plaintiff-Appellant, an individual with mental
illness, is among the many individuals whose disabilities are significant, episodic
2
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985), Borkowski
v. Valley Cent. Sch. Dist., 63 F.3d 131 (2d Cir. 1995).
4
in their manifestation and/or might occur suddenly after a lifetime without
disability. Many individuals with disabilities will need access a state‟s disability
retirement benefits plan, and will also likely to be affected by the lower court‟s
ruling because they, too, may not possess the wherewithal to apply within the
state‟s application period. This would include not just individuals with mental
illness but also, for example, those who have sustained heart attacks or stroke,
developed Alzheimer‟s or Parkinson‟s disease, or been victims of traumatic
incident, such as a motor vehicle accident or crime. For these reasons, this Court
should hold that (1) federal disability rights law requires that state laws and
regulations, including state statutes, may be modified so as to provide reasonable
modifications pursuant to title II of the ADA, regardless of whether the program,
activity, service or benefit is connected to an individual‟s employment, and (2) the
decision of the district court in this case should be reversed.
ARGUMENTS
I.
STRICT ENFORCEMENT OF STATUTORY FILING
DEADLINES WHEN INDIVIDUALS’ DISABILITIES HAVE
PREVENTED THEM FROM TIMELY FILING AN
APPLICATION, WOULD DENY SUCH INDIVIDUALS AN
EQUAL OPPORTUNITY TO PARTICIPATE IN AND BENEFIT
FROM THE STATE’S PROGRAM OR ACTIVITY AND
FRUSTRATE CONGRESS’ INTENT WHEN IT ENACTED THE
AMERICANS WITH DISABILITIES ACT.
5
A. When Strict Enforcement of a Statutory Filing Deadline Acts As a
Barrier to Programs, Services, or Activities of a State or Local
Governmental Entity, it Violates the ADA.
In passing the ADA, Congress made clear that it intended that the ADA
would be a “clear and comprehensive national mandate,” freeing individuals with
disabilities from discriminatory effects resulting from, inter alia, “communication
barriers, overprotective rules and policies, [the] failure to make modifications to
existing facilities and practices, exclusionary qualification and eligibility criteria, .
. . and relegation to lesser services, programs and benefits.” 42 U.S.C.
§12101(a)(5). The ADA Amendments Act of 2008 reinstated Congress‟ original
intent that “a broad scope of protection be available under the ADA.” 42 U.S.C. §
12101(B)(1). In keeping with clear congressional intent, a state statutory filing
deadline that constitutes a barrier to services because it excludes individuals with
disabilities from benefitting from those programs and activities violates this
national mandate, and is thus preempted by the ADA.
Specifically, enforcement of a statutory filing deadline in a situation where
the nature of an individual‟s disability hampers or prevents submission of an
application within the statutorily prescribed time period excludes on the basis of
disability and is thus discriminatory and prohibited by the ADA. A public entity
6
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. § 35.130(b)(7). Under any analysis, the statute
allows for significant modification of the application deadline for certain
individuals in connection with injuries sustained during the attacks on 9/11/01.
N.Y. RSS. Law § 605(b)(2) (McKinney 2007) Thus, flexibility in filing for
disability retirement cannot be found to be a fundamental alteration of the state‟s
disability retirement benefit or the state‟s retirement system in general. In
Borkowski, supra, a school district‟s failure to consider a proposed modification
consisting of providing a library teacher with an aide to assist her in controlling
certain classes of young children, violated the ADA. Id. at 143. See also Henrietta
D. v. Bloomberg, 331 F.3d. 261(2d Cir 2003); Barber v. Colorado Dep‟t of
Revenue, 562 F.3d 1222 (10th Cir. 2009) (in which the 10th Circuit held that “[a]
discriminatory state law is not a defense to liability under federal law; it is a source
of liability under federal law.” (quoting Quinones v. City of Evanston, Ill., 58 F.3d
275, 277 (7th Cir. 1995) (citing Williams v. Gen. Foods Corp., 492 F.2d 399, 404
(7th Cir.1974)).
7
The United States Supreme Court has held that preemption will be found
when the state statute at issue is an obstacle to the accomplishment and execution
of the intent of Congress. See Crosby v. Nat‟l Foreign Trade Council, 530 U.S.
363, 372 (2000) (“state law is naturally preempted to the extent of any conflict
with a federal statute”), and Hillsborough Cnty., Fla. v. Automated Med. Labs,
Inc., 471 U.S. 707, 713 (1985) (applicable federal regulations will also preempt
state law). The Court of Appeals for the Second Circuit has agreed. See Marsh v.
Rosenbloom, 499 F.3d 165 (2d Cir. 2007).
In Marsh, the question before the court was whether the Comprehensive
Environmental Response, Compensation, and Liability Act, a federal statute,
preempted Delaware General Corporations Law. This Court has held that federal
law preempts state law “where state law actually conflicts with federal law.” Id at
177. See also Ass‟n of Intern. Auto. Mfrs., Inc. v. Abrams, 84 F.3d 602, 607 (2d
Cir. 1996) (preemption will be found where it is impossible to comply with both
federal and state requirements); Cable Television Ass'n of N.Y., Inc. v. Finneran,
954 F.2d 91, 95 (2d Cir. 1992) (The Second Circuit, relying in part on Shaw v.
Delta Airlines, Inc., 463 U.S. 85, 95 (1983), held that “our task is to ascertain
Congress‟ intent in enacting the federal statute at issue.”).
8
The regulatory terrain on which the ADA was written was fraught with
pervasive and invidious discrimination against individuals with disabilities. 42
U.S.C § 12101 (3).
B. Waiver Of A Statutory Filing Deadline Would Constitute A Reasonable
Modification Under The Americans with Disabilities Act.
An individual has a disability within the meaning of the Americans with
Disabilities Act of 1990 (hereinafter “ADA”) if, inter alia, that individual has a
physical or mental impairment that substantially limits one or more of major life
activities. 42 U.S.C. § 12102(1). Major life activities include activities such as
“reading, concentrating, thinking, and communicating,” and major bodily
functions, such as “brain function.” 42 U.S.C. '12102(2)(A).3 Under title II of
the ADA, state and local governmental entities are prohibited from excluding
individuals with disabilities from participating in, or benefitting from, their
services, programs, and activities. 42 U.S.C. '12132.
A public entity shall make reasonable modifications in
policies, practices, or procedures when the modifications
are necessary to avoid discrimination on the basis of
disability, unless the public entity can demonstrate that
3
In 2008, Congress amended Section 12102 of the ADA to include a nonexhaustive list of major bodily functions that also constitute major life activities
under the ADA. 42 U.S.C. '12102(2)(B).
9
making the modifications would fundamentally alter the
nature of the service, program, or activity.
28 C.F.R. Part 35, Section 35.130 (7). In Henrietta D. v. Bloomberg, 331 F.3d. at
276 (citation omitted), this Court quoted the district court in that case, finding that
[a]lthough there are subtle differences between these
disability acts, the standards adopted by Title II of the
ADA for State and local government services are
generally the same as those required under section 504 of
federally assisted programs and activities.
Indeed, this Court found that
unless one of those subtle distinctions is pertinent to a
particular case, we treat claims under the two statutes
identically. See Weixel v. Bd. of Educ., 287 F.3d 138,
146 n. 6 (2d Cir.2002). . . . Further, the statute itself does
not literally require a showing of "discrimination." A
plaintiff can prevail either by showing "discrimination"
or by showing "deni[al of] the benefits" of public
services. 42 U.S.C. ' 12132.
Id. Accord., Barden v. Sacramento, 292 F.3d 1073 (9th Cir. 2001) (construing the
ADA‟s broad language as bringing within its scope “anything a public entity
does…” (citing Lee v. City of Los Angeles , 250 F3d 668,691 (9th Cir. 2001)
(quoting Yeskey v. Pa. Dep‟t of Corr., 118 F.3d 168, 171 (3d Cir.1997), aff'd, 524
U.S. 206 (1998))). In Johnson v. City of Saline, 151 F.3d 564, 569 (6th Cir.1998),
the 6th Circuit found that “any normal function of a governmental entity suffices to
make this showing.”
10
Here, the court below noted that the NYS and local Retirement System filing
deadline was enacted for a public purpose –to protect those retirees, who may not
have realized their separation from service had occurred. Mary Jo C. v. N.Y.S. &
Local Ret. Sys. & Islip Pub. Library, No. 09-CV 5635, 2011WL 1748572, at *8
(E.D.N.Y. May 5, 2010). Such statutory filing may nevertheless have the effect of
discriminating against people with disabilities, including, but not limited to, people
with mental illness, unexpected traumatic impairments or those which are episodic.
42 U.S.C. § 12101(4). Accordingly, a waiver, or extension, of a statutory filing
deadline may constitute a reasonable modification for an individual with a
disability. 4
In Borkowski, supra,at 135, this Court held that a public school
superintendent‟s exercise of discretion under state education law that denied
Borkowski tenure because of disability-related difficulties violated Section 504 of
the Rehabilitation Act of 1973. 29 U.S.C. §794. Title II was intended to extend
the disability prohibition of Section 504 to all state and local governmental entities,
regardless of whether they receive federal financial assistance. Americans with
4
PGA Tour, Inc. v. Martin, 532 U.S. 661, 683 (2001) (“the use of carts is not
itself inconsistent with the fundamental character of the game of golf. From early
on, the essence of the game has been shotmaking--using clubs to cause a ball to
progress from the teeing ground to a hole some distance away with as few strokes
as possible...”)
11
Disabilities Act: Title II Technical Assistance Manual II-1.4100(1993) Thus,
federal disability laws are violated if the public entity fails to accommodate the
individual‟s known disabilities, even if State law authorizes the challenged
conduct.
In the case at bar, the state defendants knew of Mary Jo C.‟s disabilities.
Indeed, her disabilities had become exacerbated to the extent that she could no
longer perform the essential functions of her job to the extent that she needed a
reasonable modification of the disability retirement benefits application procedure
in order for her to access the disability retirement benefits for which she was
eligible. Nevertheless, the State defendant refused to reasonably modify the
application process. Similarly, the public employer defendant refused to make an
application for disability benefits on plaintiff‟s behalf, even though it was
authorized by state law N.Y. RSS. Law §605 (a) (McKinney 2007) to apply for
disability benefits on her behalf. It failed to do so, or to offer any other reasonable
modification that would give her access to the disability retirement benefits to
which she was substantively entitled. Contrary to this Court‟s holding in
Borkowski, the defendants herein utterly failed to consider any reasonable
modification which would provide her with access to the benefit sought; instead its
actions acted as a barrier to her securing the benefit.
12
In Dopico v. Goldschmidt, 687 F.2d 644, 652 (2d Cir. 1982), this Court held
that Section 504 requires that state and local governments take “modest,
affirmative steps” to accommodate an individual‟s disabilities. Judge Edwards,
concurring, stated what individuals with disabilities know all too well to be true,
that barriers to access are not mere abstractions. “[I]it is not enough to open the
door for the handicapped ...; a ramp must be built so the door can be reached.‟” Id.
While the instant case does not involve transportation, it does concern physical
barriers to participation – the completion and submission of a paper application
within the state‟s statutorily prescribed filing deadline. The “ramp” required in
connection with such circumstances is a modification of a rigid statutory filing
deadline that would otherwise deny current and former state employees with
disabilities to the benefits of a state disability retirement plan into which they have
paid throughout the term of their employment. Rigidly applying state filing
deadlines, such as the one challenged by Mary Jo C. excludes persons with
disabilities the right to equal access to state programs and services.
Many people with disabilities will be negatively affected if state statutory
filing deadlines, such as the one herein, are strictly enforced without regard to the
impediments to timely filing that may be caused by an individual‟s disabilities. An
individual experiencing an episode of serious depression, aggravated schizophrenia
13
or bipolar disorder, a heart attack or a stroke, brain aneurysm, or aggressive
treatment for cancer, may not be able meet a statutory deadline because of the
effects of their disability. Disabilities that anyone may experience at any given
time can and do substantially limit an individual‟s ability to think, concentrate,
read and understand directions, write and organize their affairs, and consequently,
prevent their strict compliance with statutory filing deadlines. These deadlines
must be modified when necessary to reasonably accommodate a disability.
C. Waivers of Statutory Filing Deadlines Are Not Per Se Fundamental
Alterations
Waivers of rigid statutory filing deadlines such as the one before this Court
are not per se fundamental alterations of public programs or services. Recently, in
Henderson ex rel. Henderson v. Shinseki, 131 S.Ct. 1197, 1205 (2011), the
Supreme Court held that the Veteran‟s Judicial Review Act‟s mandatory 120 day
deadline on filing a notice of appeal of a denial for monthly disability benefits
“clashed sharply with solicitude of Congress for veterans and the canon that
provisions for veteran benefits are to be construed in the beneficiaries' favor.” In
Henderson, the petitioner‟s schizophrenia substantially limited his ability to think
and concentrate, which prevented him from submitting his notice of appeal within
the 120 day statutory filing deadline. The Court of Appeals of Veterans Claims
14
dismissed Henderson‟s appeal for failure to comply with the filing deadline even
though it knew that his disability was the cause for his non-compliance. As the
Supreme Court held, this late filing should have been excused in order to effectuate
the intent of Congress in passing legislation that provided benefits to disabled
veterans.
Just as in Henderson, strict enforcement of the statutory filing deadline at
issue before this Court is at odds with the intent of both the U.S. Congress and the
New York State legislature. As the court below acknowledged, “the State
Legislature added the statutory filing deadline „to alleviate hardships created when
members of the [State] Retirement System mistakenly terminate their service prior
to filing for benefits.‟” Mary Jo C., supra, at 8, (quoting Matter of Grossman v.
McCall, 262 A.D.2d 923, 924 (3d Dept. 1999). Strict enforcement of the filing
deadline is in no way material to the state‟s distribution of retirement benefits, and
undercuts the state‟s avowed desire to protect those to whom such benefits are
available.
For many individuals with disabilities that temporarily or permanently
render them incapable of filing for a state benefit, program or service within a
certain timeframe, the enforcement of strict filing deadlines exacerbates, rather
15
than alleviates, hardships.5 The state retirement system‟s rejection of Mary Jo C.‟s
application for disability retirement benefits is clearly counter to the intent of New
York State, whose legislature created a disability retirement benefit so that state
employees, whose disabilities made such an election necessary, might avoid undue
financial hardships. Furthermore, enforcement of strict statutory filing deadlines
such as the one before this Court is counter to Congress‟ intent that the scope of
the protections afforded by the ADA be broad and inclusive. See COMM. ON EDUC.
& LABOR REP., REP. ON THE ADA AMEND. ACT, 110-730, Part 1 (June 23, 2008).6
Within the federal statutory scheme -- much larger and more complex than
any state‟s -- the Social Security program allows for deadline extensions when
good cause may be shown. See 20 C.F.R. § 404.968. Good cause may be “any
5
As noted above, Mary Jo C.‟s brother requested that an authorized
supervisor submit her application on her behalf, a request which was within the
statutory timeframe, within the scope of his authority under the law N.Y. RSS.
Law § 605(a), and consistent with the ADA. See Taylor v. Phoenixville, 184 F.3d
296 (3d Cir. 1999) (a son‟s request for reasonable accommodations for his mother
triggered the ADA‟s interactive process).
6
The ADA Amendments Act “reestablishes the scope of protection of the
Americans with Disabilities Act to be generous and inclusive. This bill restores
the proper focus on whether discrimination occurred…” 2 CONG.REC. H 8286,
8288 (Sept. 17, 2008) (Remarks by Rep. George Miller upon the passage of the
ADA Amendments Act).
16
physical, mental, educational, or linguistic limitations (including any lack of
facility with the English language) which prevented you from filing a timely
request or from understanding or knowing about the need to file a timely request
for review.” 20 C.F.R. § 404.911 (a)(4). The “good cause” filing extension
pursuant to Social Security regulations essentially codifies the reasonable
modification requested herein so as to prevent an individual‟s disabilities from
baring her access to a state program or activity because her disability prevents
filing a timely request.
D. Strict Enforcement of Statutory Filing Deadlines in these Circumstances
Also Frustrates State Law and Public Policy.
Any New York State statutory filing deadline that, when strictly enforced,
discriminates against individuals on the basis of disability is also inconsistent with
the public policy of New York State as embodied by the New York State Human
Rights Law in which the legislature declared its responsibility to
assure that every individual within this state is afforded
an equal opportunity to enjoy a full and productive life
and [recognize] that the failure to provide such equal
opportunity . . . menaces the institutions and foundation
of a free democratic state and threatens the peace, order,
health, safety and general welfare of the state and its
inhabitants.
N. Y. Exec. L. § 290(3) (McKinney 2001).
17
The state legislature‟s intent in passing the Human Rights Law is congruent
with the United States Congress‟ that state actors have a responsibility to take
affirmative steps to ensure that individuals with disabilities are afforded an equal
opportunity to enjoy “a full and productive life.” Id. See Shannon v. N.Y.C.Transit
Auth., 332 F.3d 95, 104 n.2 (2d Cir. 2003) (New York State Human Rights Law
extends broader protections than the ADA). Disability retirement benefits, such as
those sought by Mary Jo C. and countless other public employees with disabilities,
are post-employment fringe benefits. In Castellano v. City of N.Y., 142 F.3d 58,
68 (2d Cir. 1998), this Court held that
Where the alleged discrimination relates to the provision
of post-employment benefits. . . Congress's expressed
concern about qualifications is no longer implicated. . .
Provided that retired employees. . . became entitled to
post-employment benefits, the purpose of the “essential
functions” requirement has been met. . . As evidenced by
the ADA's language and legislative history, it is
inconceivable to us that Congress would in the same
breath expressly prohibit discrimination in fringe
benefits, yet allow employers to discriminatorily deny or
limit post-employment benefits to former employees who
ceased to be “qualified” at or after their retirement,
although they had earned those fringe benefits through
years of service in which they performed the essential
functions of their employment.
1. Modifications to Permit Equal Access to Disability Rights Benefits
are not a Fundamental Alteration.
18
Access to disability retirements is a right reserved for retirees whose
retirement was occasioned by disability; it would be the height of circular
reasoning for disability impacts so significant as to prevent compliance with a
filing deadline to “fundamentally alter” a disability retirement or similar benefit.
The use of the word “fundamental” implies that a characteristic is essential. In
PGA Tour, supra, fn5, the Supreme Court disagreed with the PGA Tour‟s
argument that the use of a golf cart at the nation‟s highest level of play would
fundamentally alter the game of golf. As the Supreme Court noted, the 9th Circuit
and the district court had got it right.
[T]he issue [is]not . . . “whether use of carts generally
would fundamentally alter the competition, but whether
the use of a cart by Martin would do so.” That issue
turned on “an intensively fact-based inquiry,” and, “[a]ll
that the cart does is permit Martin access . . . in which he
otherwise could not engage because of his disability.
Id. at 673 (internal citations omitted).
As noted above, the NYS Disability Retirement statute involved contains
significant leeway for other people: (1) a “vested member incapacitated as a result
of a qualifying World Trade Center condition”, who according to the statute may
apply “at any time;” or (2) a member of the New York State Teachers Retirement
program. N.Y. RSS. Law §605 (b)(2) (McKinney 2007).
19
While the legislature is free to provide preferences to the above referenced
groups, it may not refuse to provide similar flexibility in filing periods as a
reasonable accommodation to individuals whose disabilities are obstacles to
otherwise timely filing. Indeed, denying public employees with disabilities who
are not among the preferred groups above and who have also paid into the state
retirement system, an opportunity to even be considered for disability retirement
benefits is counter to Congressional intent and would violate of title II of the ADA.
E. Strict Enforcement of a Statutory Filing Deadline is Likely to Cause
Thousands of Individuals with Disabilities to Live Under Economically
Depressed Circumstances.
Individuals with disabilities have historically suffered from poverty at
greater levels than the general population. 135 CONG. REC. 8506, 8506 (1989)
(statement of Sen. Thomas Harkin). See also 42 U.S.C. § 12001(A)(6). Strict
enforcement of state statutory guidelines affecting the distribution of economic
resources would only perpetuate this inequity. The ADA was passed to eliminate
barriers that have been unfairly erected, either intentionally or unintentionally,
against individuals with disabilities that have hindered, among other things, their
economic wellbeing. See Findings and Purposes of the ADA, 42 U.S.C. §
20
12101(1990).7
In 2008, approximately 25.3% of non-institutionalized individuals
possessing disabilities (and of those, 32.4% with cognitive disabilities) were living
below the poverty line, and it may be assumed that many more were living on the
cusp, still unable to meet their daily financial obligations. Disability Statistics
from the 2008 American Community Survey (ACS), www.disabilitystatistics.org
(last visited August 17, 2011). In that same year, approximately 60.1% of all
individuals with disabilities were unemployed, and approximately 71.8% of
individuals with cognitive disabilities were unemployed. Id.
It goes without saying that subsequent to the calculation of the 2008
statistics cited above, the United States economy has suffered tremendously, and as
a rule of thumb, individuals with disabilities tend to feel any economic downturn
more intensely than the general population. Amanda Ruggeri, Recession's Bite
Hits Americans with Disabilities Extra Hard, U.S. News, December 5,
2008, http://www.usnews.com/news/national/articles/2008/12/05/recessions-bitehits-americans-with-disabilities-extra-hard ("Losing a job is difficult for anyone.
But for workers with disabilities, the effects can be particularly acute. In 2007,
7
Nothing in the ADA Amendments Act of 2008 is at variance with these purposes.
21
nearly one in 4 working-age individuals with disabilities were below the poverty
line. But fewer than one in 10 people without disabilities were.").
Additionally, a host of other benefit programs of employers, service
providers, and government entities that have deadlines set by statute or
administrative rules. This includes, for example, open enrollment periods to sign
up for health, dental, and vision insurance. If individuals with disabilities are
deprived of access to state programs and benefits, such as the disability retirement
benefits in controversy before this Court,8 simply because their disability makes it
impossible to comply with filing deadlines, they and their families will succumb to
greater levels of impoverishment.
II.
DISCRIMINATION ON THE BASIS OF DISABILITY THAT IS A
RESULT OF A PUBLIC EMPLOYER’S MANAGEMENT OF A
RETIREMENT BENEFITS PROGRAM IS INCLUDED AMONG
THE ACTIONS PROHIBITED UNDER TITLE II OF THE
AMERICANS WITH DISABILITIES ACT.
8
In stands to reason that disability retirement benefits exist for the purpose of
protecting state and local government workers from succumbing to exigent
disabling circumstances.
22
Congress was quite clear in its intent that title II of the ADA was to provide
at least as much protection as Section 504 and fill in the gaps where Section 504
might not have reached state or local governments.
Title II extends the protections of Section 504 of the
Rehabilitation Act to cover all programs of state or local
governments, regardless of the receipt of federal financial
assistance. By prohibiting discrimination against persons
with disabilities in programs and activities of the federal
government and by recipients of federal financial
assistance, Section 504 of the Rehabilitation Act has
served not only to open up public services and programs
to people with disabilities but has also been used to end
segregation. The purpose of title II is to continue to break
down barriers to the integrated . . . participation of people
with disabilities in all aspects of community life. The
Committee intends that title II work in the same manner
as Section 504. . . The general prohibitions set forth in
the Section 504 regulations, are applicable to all
programs and activities in title II.
H.R. REP. 101-485, pt. 3, at 25 (1990). In pertinent part, the House report also
states clearly, “In the area of employment, title II incorporates the duty set forth in
the regulations for Sections 501, 503 and 504 of the Rehabilitation Act to provide a
“reasonable accommodation” that does not constitute an „undue hardship.‟” Id. “In
the area of employment, title II incorporates the duty set forth in the regulations for
Sections 501, 503 and 504 of the Rehabilitation Act to provide a “reasonable
accommodation” that does not constitute an „undue hardship.‟” Id.
23
Courts have agreed “[t]he ADA prohibits discrimination in the
administration of programs. 28 C.F.R. § 35.130(b)(6). Title II covers all programs,
services, and activities of public entities „without any exception,‟ and „prohibits all
discrimination by a public entity, regardless of the context.‟” Pa. Dep't of
Corrections v. Yeskey, 524 U.S. 206, 209 (1998). See also Innovative Health Sys.,
Inc. v. City of White Plains, 117 F.3d 37, 45 (2d Cir.1997) (noting that “programs,
services, or activities” is a “catch-all phrase that prohibits all discrimination by a
public entity, regardless of the context.”), overruled on other grounds by Zervos v.
Verizon N.Y., 252 F.3d 163 (2d Cir.2001); Barden v. Sacramento, 292 F.3d. at
1076. See also H.R. REP. 101-485, pt. 3, at 25 (1990), (1990) (the House
Committee on Education and Labor stated that title II of the ADA “extends the
protections of Section 504 of the Rehabilitation Act to cover all programs of state
or local governments”). Moreover, as this Court held in Henrietta D., 331 F.3d at
277, “the statute itself does not literally require a showing of „discrimination.‟ A
plaintiff can prevail either by showing „discrimination‟ or by showing „deni[al of]
the benefits‟ of public services. 42 U.S.C. ' 12132.‟”
Title II of the ADA does not contain a list of prohibited discriminatory
actions. Congress expressly charged the United. States Department of Justice with
the task of promulgating regulations to interpret and implement Title II of the
24
ADA. 42 U.S.C. §12134. See also H.R. REP. 101-485, pt. 3, at 52 (1990)
(“Unlike the other titles in this Act, title II does not list all of the forms of
discrimination that the title is intended to prohibit. Thus, the purpose of this section
[§ 12134] is to direct the Attorney General to issue regulations setting forth the
forms of discrimination prohibited.”). The Department of Justice has interpreted
title II to prohibit discrimination in “all services, programs, and activities provided
or made available by public entities,” 28 CF.R. § 35.102, and invalidate State and
local laws that provide lesser protections of the rights for individuals with
disabilities. 28 CF.R. § 35.103 (b). See also Americans with Disabilities Act of
1990: title II Technical Assistance Manual, II-1.4200 (stating that title II will
“prevail over any conflicting state laws.”).
Additionally, the Department has also interpreted title II of the ADA to
provide protections that are at least equal to those provided under Section 504,
including those under 28 C.F.R. 42.510 (b)(8) which state that the prohibition
against discrimination apples to “any other term, condition, or privilege of
employment.” Accordingly, title II‟s protections extend to state managed
25
disability retirement systems, such as the one at issue before this Court, which are
a fringe benefit of New York State and local governmental employment.9
The U.S. Department of Justice regulations in this regard should control.
The Supreme Court has held “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.”
Skidmore v. Swift & Co., 323 U.S. 134, 139-140 (1944). See also Olmstead v.
Zimring, 527 U.S. 581, 598-99 (1999); Bragdon v. Abbott, 524 U.S. 624, 642
(1998). Moreover, numerous courts have agreed with the Department of Justice‟s
finding that title II covers employment discrimination actions.
For example, several circuit courts have held that title II applies to
employment discrimination by state and local governments. See Currie v. Grp.
Insurance Comm‟n, 290 F.3d 1, 6-7 (1st Cir. 2002) (the words “public services,
programs, or activities” do not necessarily exclude employment, and the “subjected
9
In Bd. of Tr. of Univ. of Ala. v. Garrett, 531 U.S. 356, 360 n.1 (2001), the
Supreme Court expressly took no position on whether title II also covers
employment actions, and acknowledged that the Courts of Appeal were divided on
the issue. Subsequent to Garrett, the Second Circuit found that an action for
monetary damages under Title II would be permitted under certain circumstances.
See Bolmer v. Oliveira, 594 F.3d 134 (2d Cir.2010). However, the instant case
involves access to disability retirement benefits; no monetary damages are sought.
26
to discrimination” clause may broaden the scope of coverage further); Bledsoe v.
Palm Beach Cnty. Soil & Water Conservation Dist., 133 F.3d 816, 820 (11th Cir.
1998) (“[o]ur review of the statutory language of title II, the Department of
Justice's . . . regulations, our circuit's reference to the issue, and other courts'
resolution of the issue, persuade us that title II of the ADA does encompass public
employment discrimination”); Doe v. Univ. of Md. Med. Sys. Corp, 50 F.3d 1261,
1264-1265 (4th Cir. 1995) (title II claim dismissed on other grounds).
Within the Second Circuit, several district courts have also found that an
employment discrimination cause of action exists under title II of the ADA. See
Olson v. New York, No. 2:04cv00419, 2007 WL 1029021 (E.D.N.Y. March 30,
2005); Transp. Workers Union v. NYC Transit Auth., 342 F.Supp.2d 160, 173
(S.D.N.Y. 2004) (“Given this broad congressional mandate, it is certainly at least a
plausible reading of title II that it covers employment discrimination”); Bloom v.
N.Y.C. Bd. of Educ. Teachers Ret. Sys., No. 1:00cv02728, 2003 WL 1740528, at
*10 (S.D.N.Y. April 2, 2003) (“The issue is whether an employee of a public entity
may bring an employment discrimination claim under title II. Apparently, the
Second Circuit has not yet resolved this issue. However, district courts in this
circuit have concluded that such a claim is permitted under title II”); Winokur v.
Office of Ct. Admin, 190 F.Supp.2d 444 (E.D.N.Y. 2002) (finding that the
27
Supreme Court‟s holding in Garrett, supra did not bar title II employment actions).
This Court should hold that title II protects individuals with disabilities in
connection with programs, activities and services related to employment.
CONCLUSION
For all the foregoing reasons, the lower court‟s holding that Plaintiff Appellant Mary Jo C. is not a qualified individual with a disability by virtue of her
inability to independently file for disability retirement benefits within the state
statutory timeframe should be reversed.
Dated:
Brooklyn, NY
August 27, 2011
Respectfully submitted,
JO ANNE SIMON, P.C.
356 Fulton Street, 3rd Floor
Brooklyn, NY 11201
By:
__________________
Jo Anne Simon, Esq. (JS(2793)
Attorneys for Amicus Curiae
National Disabilities Rights Network,
On the Brief:
Mary J. Goodwin
Jo Anne Simon
28
CERTIFICATE OF COMPLIANCE
Jo Anne Simon, the attorney for the amici, certifies pursuant to
Fed.R.App.P. 32(a)(7)(C)(i):
(1) This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because this brief contains 5, 424 words, excluding the
parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii); and
(2) This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6)
because this brief has been prepared in a proportionally spaced
typeface using Microsoft Office Word 2003 in Times New Roman
Font in Size 14.
Dated:
Brooklyn, New York
August 27, 2011
_________________________
JO ANNE SIMON
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