Kilcullen v. New York State Dept. of Transp.

• Citation: 33 F.Supp.2d 133
• Decision Date: 19 January 1999
• Docket Number: No. 96-CV-2023 (LEK/RWS).,96-CV-2023 (LEK/RWS).
• Parties: Joseph C. KILCULLEN, Plaintiff, v. NEW YORK STATE DEPARTMENT OF TRANSPORTATION, Defendant.
• Court: U.S. District Court — Northern District of New York

Page 133

33 F.Supp.2d 133

Joseph C. KILCULLEN, Plaintiff, v. NEW YORK STATE DEPARTMENT OF TRANSPORTATION, Defendant.

No. 96-CV-2023 (LEK/RWS).

United States District Court, N.D. New York.

January 19, 1999.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Office of Joseph Hein, Altamont, NY (Joseph Hein, of counsel), for Plaintiff.

Office of Attorney General, State of New York, Albany, NY, (Karen Marcoux Mankes, Ass't Attorney General, of Counsel) for Defendant.

MEMORANDUM — DECISION AND ORDER

KAHN, District Judge.

Plaintiff commenced this action alleging employment discrimination on the basis of disability in violation of the Americans with Disabilities Act (hereinafter "ADA"), 42 U.S.C.A. §§ 12101, et seq. (West 1995 & Supp.1998) and N.Y. Exec. Law §§ 290, et seq. (McKinney 1993) (hereinafter "Human Rights Law" or "HRL"). Presently before the Court is Defendant's motion for summary judgment and Plaintiff's cross-motion for partial summary judgment on the issue of whether he has a disability as that term is defined by the ADA and implementing regulations. This Court finds that it lacks subject matter jurisdiction due to the Defendant's immunity to suit in federal court under the Eleventh Amendment to the United States Constitution. Therefore, Defendant's motion for summary judgment is granted and Plaintiff's cross-motion is denied.

I. Background

Plaintiff alleges that he suffers from epilepsy and a "learning disability." Compl. ¶ 9. He began employment with the Defendant on September 21, 1995 as a Highway Maintenance Trainee 2 ("HMT2"), assigned to work in the Clifton Park Department of Transportation ("DOT") Garage. HMT2s are hired initially under probationary status which continues for one year. While they have probationary status, employees can be fired without cause. Plaintiff was at all relevant times a probationary employee.

Plaintiff's employment responsibilities included the task of snow plowing. Between mid-December 1995 and early January 1996, Plaintiff was involved in four accidents while plowing. On February 28, 1996, Plaintiff was involved in a fifth accident. On February 29, 1996, Glen Decker ("Decker"), the general DOT foreman in Clifton Park, completed a probationary report recommending that the Plaintiff be terminated. Decker also made the subsequent decision to discharge the Plaintiff. Following his termination, Plaintiff brought this action alleging that his discharge was motivated by discrimination against the disabled.

II. Discussion

Defendant argues that the Court lacks subject matter jurisdiction because of the Defendant's immunity to suit in federal court under the Eleventh Amendment. "`Without jurisdiction the court cannot proceed at all in any case. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the case.'" Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, 1012, 140 L.Ed.2d 210 (1998) (quoting Ex parte McCardle, 7 Wall. 506, 514, 19 L.Ed. 264 (1868)). It is well-established that immunity under the Eleventh Amendment "affects our subject matter jurisdiction." Atlantic Healthcare Benefits Trust v. Googins, 2 F.3d 1, 4 (2d Cir.1993) (citation omitted), cert. denied, 510 U.S. 1043, 114 S.Ct. 689, 126 L.Ed.2d 656 (1994). "The Eleventh Amendment ... does not automatically destroy original jurisdiction," Wisconsin Dep't. of Corrections v. Schacht, 524 U.S. 381, ___, 118 S.Ct. 2047, 2052, 141 L.Ed.2d 364 (1998), and if a State fails to raise the question of Eleventh Amendment immunity, "a court can ignore it." Id. Here, however, the issue has been raised by the Defendant, and this Court must therefore address whether Eleventh Amendment immunity is applicable.

A. Eleventh Amendment — General Principles

The Eleventh Amendment to the United States Constitution provides that:

[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by Citizens or Subjects of any Foreign State.

U.S. Const. amend. XI. Under this amendment, a State "is immune from suits brought in federal courts by her own citizens as well as by citizens of another state." See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (citation and internal quotations omitted). Further, state agencies are entitled to assert the same Eleventh Amendment immunity as the States themselves. Id. Here, Plaintiff has brought a suit in federal court against a state agency, and the requirements for application of Eleventh Amendment immunity are therefore present.

However, there are two ways that a state may be divested of its Eleventh Amendment immunity: (1) "a state may waive its immunity and agree to be sued in federal court," or (2) "Congress may abrogate a state's sovereign immunity through a statutory enactment ...." Close v. State of N.Y., 125 F.3d 31, 36 (2d Cir.1997).

It is conceded by both parties that neither of these exceptions applies to the HRL claim. See Mete v. New York State Office of Mental Retardation and Developmental Disabilities, 984 F.Supp. 125, 134 (N.D.N.Y.1997) (McCurn, J.) (holding HRL claim against New York State was subject to Eleventh Amendment immunity). Plaintiff's HRL claim is therefore dismissed. The Court must determine whether an exception applies to the ADA claim. In particular, because there is no assertion that New York has waived immunity, the question presented is whether Congress has abrogated state immunity to claims brought pursuant to the ADA's employment anti-discrimination provision.

Congress may not abrogate a state's Eleventh Amendment immunity unless it (1) "`unequivocally express[s] its intent to abrogate the immunity'"; and (2) acts "`pursuant to a valid exercise of power.'" Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55, 116 S.Ct. 1114, 134 L.Ed.2d 252(1996) (quoting Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985)). To satisfy the first requirement, "Congress' intent to abrogate the States' immunity from suit must be obvious from `a clear legislative statement.'" Id. (quoting Blatchford v. Native Village of Noatak and Circle Village, 501 U.S. 775, 779, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991)). The ADA expressly provides that a "State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter." 42 U.S.C. § 12202 (1994). The first requirement for abrogation is therefore clearly satisfied. Whether the law in question, and specifically the employment anti-discrimination provision, also constitutes a valid exercise of legislative power requires a more thoughtful analysis.

The validity of Congress' attempt to impose federal jurisdiction over the States depends on whether "the Act in question [was] passed pursuant to a constitutional provision granting Congress the power to abrogate [Eleventh Amendment immunity]." Seminole Tribe, 517 U.S. at 59, 116 S.Ct. 1114. It is now established that Congress may abrogate the States' Eleventh Amendment sovereign immunity only by the power vested to it under § 5 of the Fourteenth Amendment. Close, 125 F.3d at 37-38 (citing Seminole Tribe, 517 U.S. at 63, 116 S.Ct. at 1128); see also Mete, 984 F.Supp. at 131 ("the only remaining authority for Congress to abrogate the States' immunity is through § 5 of the Fourteenth Amendment."). Section 5 states: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." U.S. Const. amend XIV, § 5. The first provision of the Fourteenth Amendment states, in relevant part, that "[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend XIV, § 1. The question before the Court is whether the ADA's employment anti-discrimination provision is a valid exercise of Congress' power to enforce the Equal Protection Clause of the Fourteenth Amendment.

B. Is ADA's Employment Anti-Discrimination Provision a Valid Exercise of Section 5 of the Fourteenth Amendment?

All of the federal appellate courts and a majority of the district courts that have ruled on this issue have concluded that the ADA is a valid Fourteenth Amendment enactment. See Kimel v. State Bd. of Regents, 139 F.3d 1426, 1433 (11th Cir.), reh'g en banc denied, 157 F.3d 908 (1998), petition for cert. filed, 67 U.S.L.W. 3348 (U.S. Nov 13, 1998); Coolbaugh v. State of La., 136 F.3d 430, 438 (5th Cir.1998), reh'g en banc denied, (May 11, 1998), cert. denied, ___ U.S. ___, 119 S.Ct. 58, 142 L.Ed.2d 45 (1998); Clark v. State of Calif., 123 F.3d 1267, 1270-71 (9th Cir.1997), cert. denied, Wilson v. Armstrong, ___ U.S. ___, 118 S.Ct. 2340, 141 L.Ed.2d 711 (1998); Crawford v. Indiana Dept. of Corrections, 115 F.3d 481, 487 (7th Cir.1997); Lamb v. John Umstead Hospital, 19 F.Supp.2d 498 (E.D.N.C. Sept.1, 1998); Muller v. Costello, 997 F.Supp. 299, 304 (N.D.N.Y.1998) (Scullin, J.); Martin v. State of Kan., 978 F.Supp. 992, 994-98 (D.Kan.1997); Williams v. Ohio Dept. of Mental Health, 960 F.Supp. 1276, 1280-83 (S.D.Ohio 1997); Mayer v. University of Minn., 940 F.Supp. 1474, 1477-80 (D.Minn.1996); Niece v. Fitzner, 941 F.Supp. 1497, 1503-04 (E.D.Mich.1996). However, a number of appellate and district court judges have come to the opposite conclusion. See Coolbaugh, 136 F.3d at 439-442 (J. Smith, dissenting); Kimel, 139 F.3d at 1449 (J. Cox, concurring in part and dissenting in part); Garrett v. Board of Trustees of University of Ala. in Birmingham, 989 F.Supp. 1409 (N.D.Ala.1998); Brown v. North Carolina Div. of Motor Vehicles, 987 F.Supp. 451 (E.D.N.C.1997); Nihiser v. Ohio E.P.A., 979 F.Supp. 1168, 1170-76 (S.D.Ohio 1997); cf. McGregor v. Goord, 18 F.Supp.2d 204, 209 (N.D.N.Y.1998) (McAvoy, C.J.) (concluding that Family and...