Jackan and U.S. v. NYS Dept. of Labor

• Citation: 205 F.3d 562
• Decision Date: 01 August 1999
• Docket Number: Docket No. 98-9589
• Parties: (2nd Cir. 2000) PATRICK C. JACKAN, Plaintiff-Appellant, UNITED STATES OF AMERICA, Intervenor, v. NEW YORK STATE DEPARTMENT OF LABOR, Defendant-Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 562

205 F.3d 562 (2nd Cir. 2000)

PATRICK C. JACKAN, Plaintiff-Appellant, UNITED STATES OF AMERICA, Intervenor, v. NEW YORK STATE DEPARTMENT OF LABOR, Defendant-Appellee.

Docket No. 98-9589

August Term, 1999

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: September 14, 1999

Decide: March 03, 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.

JOSEPH HEIN, Altamont, NY, for Plaintiff-Appellant,

LAURA ETLINGER, Assistant Attorney General, New York State, Albany, NY (Eliot Spitzer, Attorney General, Peter H. Schiff, Deputy Solicitor General, Nancy A. Spiegel and Andrea Oser, Assistant Attorneys General on the brief), for Defendant-Appellee,

SETH M. GALANTER, Department of Justice, Washington, DC (Bill Lann Lee, Acting Assistant Attorney General and Jessica Dunsay Silver on the brief), for Intervenor.

Before: WALKER, LEVAL, and POOLER, Circuit Judges.

Leval, Circuit Judge:

Plaintiff Patrick Jackan appeals from a decision of the United States District Court for the Northern District of New York (Thomas J. McAvoy, Chief Judge) finding for the defendant, Jackan's employer the New York State Department of Labor ("DOL"), after a bench trial. The complaint alleged that DOL violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. 12101, et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. 794(a), in that it failed, inter alia, to reassign Jackan to a vacant position, so as to "reasonably accommodate" his disability. The district court rejected that contention on the alternate grounds that (1) such a transfer was blocked by valid civil service rules and (2) in any event, no vacancy existed. We hold that a plaintiff alleging a violation of the ADA or Section 504 by virtue of an employer's failure to reasonably accommodate the employee by reassigning him to a suitable vacant position bears the burden of proving that such a vacancy existed. Because Jackan failed to meet his burden, we affirm.

BACKGROUND

Jackan joined DOL as a Labor Services Representative ("LSR") in September 1981. At that time, he suffered from several injuries and health problems which persisted to the time of the trial, including a moderately serious eye condition, arm and leg problems from an earlier motorcycle accident, and unspecified back problems. As the LSR position was a desk job, plaintiff could handle the duties of the position with minor modifications (a special chair and table, placement of his computer at a non-standard distance, and access to a computer for additional time). DOL provided those accommodations.

In November 1993, after Jackan's health had improved, he was transferred at his request to a position as a Safety and Health Inspector ("SHI") in the Asbestos Control Bureau. This position was a field position, requiring substantial driving and moderate physical exertion (including climbing ladders and squeezing into small places). Jackan passed the various medical and physical examinations required for this new, more strenuous position and successfully performed the duties of an SHI during his one-year probationary period.

In early 1995, Jackan went on medical leave to have spinal surgery. After the surgery, he suffered from serious back and neck problems, which prevented him from lifting and crawling, and which caused such debilitating symptoms as dizziness, headaches, numbness, and trembling, exacerbated by the health problems detailed above and by a migraine condition.

Jackan's doctors cleared him to return to work in a "desk job" as of September 1, 1995. He requested transfer to a desk job (explicitly mentioning his old LSR position as a possibility) and did not return to work in his SHI position. DOL denied his request. Plaintiff appealed that decision to DOL's Compliance Review Board, which rejected his claim. On July 19, 1996, DOL terminated Jackan due to his continued absence from work. He then filed a labor grievance that was rejected.

In rejecting Jackan's claim that he was entitled to a transfer to a desk job as a reasonable accommodation for his disability, DOL and the various reviewing officials noted that, except in rare circumstances, the New York Civil Service Law and Rules bars transfers to positions for which there are "preferred lists" or "reemployment rosters."¹ Without explicitly naming any particular vacancy, or any particular preferred list or reemployment roster, the various officials who evaluated Jackan's claim repeatedly informed him that there was no vacancy to which he could be transferred "in accordance with the Civil Service Law, Rules and Regulations."

Jackan then filed this suit, alleging, inter alia, violations of the ADA and the Rehabilitation Act, and seeking damages, back pay, and injunctive relief requiring his transfer to a desk job. A bench trial was held before Chief Judge McAvoy. At trial, the primary focus of testimony was on the civil service rules that block transfer to a position for which there is a preferred list or reemployment roster. The parties paid little attention to the question whether a vacancy existed. On that point, the only evidence placed before the Judge was an affidavit from Jackan indicating that he believed his prior position as an LSR remained vacant, the testimony of his supervisor in that position indicating that she believed the position was vacant though she could not be certain, and the testimony of a labor relations representative that "[t]he department . . . I believe would have put Mr. Jackan in an LSR position if it wasn't for the existence of . . . mandatory preferred lists."

In a decision dated October 23, 1998, Chief Judge McAvoy found for the DOL on all claims. On the question whether DOL's refusal to transfer Jackan to a desk job constituted a failure to provide a reasonable accommodation, the court held that Jackan was not entitled to a transfer because (1) no vacancy existed and because (2) civil service rules prohibit transfer in the face of a pre-existing reemployment roster. Jackan brought this appeal.

DISCUSSION

Jackan challenges both prongs of the district court's holding. He argues first that then-operative civil service rules contained an exception that would have permitted his transfer to a vacant position despite the existence of a reemployment roster; second, he contends the court's conclusion that no vacancy existed was clearly erroneous. We affirm the district court's decision on the ground that the plaintiff had the burden of proving the existence of a suitable vacancy, and he failed to make any showing that such a vacancy existed.²

A. Preliminary Issues

DOL argues that, for two independent reasons, we need not reach the merits of Jackan's claims. We reject these arguments as foreclosed by our prior decisions. First, DOL argues that the Eleventh Amendment divests the federal court of jurisdiction to hear claims brought by individuals against states under the ADA or the Rehabilitation Act. However, since the initial briefs were filed in this case, we have held that Congress successfully abrogated the States' sovereign immunity from suit under the ADA and Section 504 of the Rehabilitation Act. See Muller v. Costello, 187 F.3d 298, 307-11 (2d Cir. 1999) (holding that Congress successfully abrogated the states' immunity under the ADA); Kilcullen v. New York State Dep't of Labor, 205 F.3d 77 (2d Cir.2000) (holding that Muller's abrogation analysis applies equally to Section 504). We therefore reject DOL's claim of sovereign immunity.³

DOL also argues that Jackan is not a "qualified individual" entitled to invoke the benefits of the ADA because, even with reasonable accommodations, he is unable to perform the duties of the position he currently holds. According to DOL's analysis, individuals who are unable to perform the duties of their current positions cannot require their employers to transfer them to other vacant positions which they are capable of performing. Both the plain language of the statute and a prior decision of this court foreclose DOL's argument. See, e.g., 42 U.S.C. 12111(8) (defining a "qualified individual with a disability" as someone who "with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires" (emphasis added)); Stone v. City of Mount Vernon, 118 F.3d 92, 100-01 (2d Cir. 1997) (vacating summary judgment entered against a partially paralyzed firefighter who argued that failure to assign him to an administrative desk job constituted a violation of the ADA and the Rehabilitation Act); see also Smith v. Midland Brake, Inc., 180 F.3d 1154, 1162-63 (10th Cir. 1999) (en banc) (noting that eight of nine circuits that have addressed this question have similarly found). If Jackan can establish that there was a vacant position into which he could have been transferred pursuant to then-existing civil service rules whose duties he could have performed, he may claim the protection of the ADA and the Rehabilitation Act.

B. The Burden of Proof on Establishing the Existence of a Vacancy

Though Jackan's request for a transfer was initially denied on the ground that civil service rules prohibited a transfer in the face of a reemployment roster, the district court also relied on the alternative ground that no vacancy existed at the time Jackan...