Number range CHAPTERUNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

\- - - - - - - - - - - - - - - - -X

THE UNITED STATES OF AMERICA,

Plaintiff,

\- against - Civil Action No.

CV-96-2935 (ARR)

THE NEW YORK STATE DEPARTMENT

OF MOTOR VEHICLES; THE NEW YORK

STATE DEPARTMENT OF EDUCATION;

and the THREE VILLAGE CENTRAL

SCHOOL DISTRICT,

Defendants.

\- - - - - - - - - - - - - - - - -X

MEMORANDUM OF LAW IN SUPPORT OF THE UNITED STATES'

[MOTION FOR SUMMARY JUDGMENT]{.underline}

[PRELIMINARY STATEMENT]{.underline}

Plaintiff, the United States of America (\"United States\"), submits
this memorandum in support of its motion for summary judgment. This
action, brought under Section 107 of the Americans with Disabilities Act
of 1990 (\"ADA\"), 42 U.S.C. § 11217, alleges that the defendants, the
New York State Department of Motor Vehicles (\"DMV\"), the New York
State Department of Education (\"SED\") and the Three Village Central
School District (\"the District\"), violated Title I of the ADA by
implementing New York State statutes and regulations that prohibited the
employment as school bus drivers of certain persons who were missing a
foot, a leg, an arm or a hand. In [Equal Employment Opportunity
Commission]{.underline} v. [Amboy Bus Company, Inc.]{.underline},
CV-96-5451 (ARR), an action deemed a case related to this action, this
Court recently held liable under the ADA a common carrier that, in
accordance with the State's statutes and regulations, refused to employ
as a bus driver Theodore Bacalakis, an individual whose leg had been
amputated. [See]{.underline} Memorandum Opinion and Order, dated August
19, 1998 (\"Slip. op.\"). By this motion, the United States seeks an
order pursuant to Rule 56 of the Federal Rules of Civil Procedure,
determining that DMV, SED and the District have violated and are liable
under the ADA for unlawful discrimination and awarding back pay with
pre-judgment interest on behalf of Theodore Bacalakis.

[STATEMENT OF FACTS]{.underline}[^1]

A. New York State's Regulatory Scheme for the Employment [of School Bus
Drivers]{.underline}

New York State laws and regulations promulgated under them provide a
comprehensive system regulating the employment of bus drivers and, in
particular, school bus drivers. The hiring and continued employment by a
private common carrier of every bus driver is subject to the rules, and
ultimate approval, of DMV. When the common carrier provides
transportation to elementary and secondary students, state laws and
regulations also vest SED and the chief operating officer of the school
district with the power to determine whom the common carrier may employ
as a driver.

The New York Vehicle and Traffic Law vests the Commissioner of
Transportation with comprehensive regulatory authority over the
employment of bus drivers by common carriers. Section 509-d provides
that before hiring a new bus driver, a common carrier must require the
bus driver to pass a medical examination established by the Commissioner
under 509-g of the law; obtain the applicant\'s driving record;
investigate the applicant\'s employment record; and initiate a check of
the applicant\'s criminal record, which can be disqualifying. The hiring
of a bus driver is temporary and conditional upon the Commissioner\'s
approval. N.Y. Vehicle and Traffic Law § 509-h. The carrier must
regularly require the driver to meet numerous DOT standards, including
those of a biennial medical examination, behind the wheel driving tests,
and written and oral rules of the road tests. § 509-g. Motor carriers
are required to comply with the provisions of the law and to submit to
DMV annual affidavits attesting to such compliance. A failure to comply
or a false statement of compliance can be sanctioned with a civil
penalty or a revocation of vehicle registration. § 509-j.

Pursuant to its authority under N.Y. Vehicle and Traffic Law § 509-g, in
1979, DMV promulgated regulations setting forth physical standards that
bus drivers were required to meet at the time of hiring,
[see]{.underline} § 509-d, and at biennial medical examinations. In
particular, it promulgated a regulation prohibiting the employment of
certain persons who were missing a limb. The regulation, which was
rescinded following the commencement of this action[^2], provided that:

> A person is physically qualified to drive a bus if he or she has no
> loss of a foot, a leg, a hand or an arm, except that if a person has
> been employed by a motor carrier and has suffered a loss of a foot,
> leg, hand or an arm prior to the biennial physical examination of July
> of 1978 and he or she has demonstrated an ability to safely operate a
> bus, he or she may be deemed to be physically qualified in spite of
> such loss.

15 N.Y.C.R.R. § 6.11(b)(1).

The New York Education Law similarly empowers the New York Commissioner
of Education to limit the access of school bus drivers to employment
opportunities, providing that the Commissioner of Education \"shall
determine and define the qualifications of drivers and shall make the
rules and regulations governing the operation of all transportation
facilities used by pupils. . . .\" N.Y. Educ. Law § 3624. The Education
Law permits but does not require school districts to enter into
contracts with common carriers to provide transportation to students. If
a district determines to contract with a common carrier to provide
transportation, however, state law makes those contracts subject to the
final approval by the Commissioner of Education, N.Y. Educ. Law §
3625(2), and provides that \"\[n\]o transportation aid or other public
moneys shall be apportioned and paid . . . to any district furnishing
transportation for pupils until the contract for transportation shall
also have been approved by the commissioner.\" N.Y. Educ. Law § 3625(4).

The Education Law provides that a school district shall be responsible
for approving the employment of school bus drivers by a common carrier
that contracts with the district to provide transportation to the
district's students. First, it provides that:

> Every contract for transportation of school children shall be in
> writing, and before such contract is executed, the same shall be
> submitted for approval to the superintendent of schools of said
> district and such contract shall not become effective until approved
> by such superintendent who shall first investigate the same with
> particular reference to . . . the character and ability of the driver
> . . .

N.Y. Educ. Law § 3625(1). As noted in the statutory language above, even
after the superintendent's approval, a contract for student
transportation must be approved by the Commissioner of Education for
final approval.

Second, the Education Law requires the school district's chief
administrator to approve the employment of every person whom the
contract common carrier seeks to employ as a school bus driver:

> The employment of each driver shall be approved by the chief school
> administrator of a school district for each school bus operated within
> his district. For the purpose of determining his physical fitness,
> each driver may be examined on order of the chief school administrator
> by a duly licensed physician within two weeks prior to the beginning
> of service in each school year as a school bus driver. The report of
> the physician, in writing, shall be considered by the chief school
> administrator in determining the fitness of the driver to operate or
> continue to operate any transportation facilities used by pupils.

N.Y. Educ. Law § 3624.

Pursuant to the authority provided by the Education Law, the SED
promulgated a regulation prohibiting the employment as school bus
drivers of persons with missing limbs. It provided:

> Physical fitness. (1) Each driver of a school transportation
> conveyance shall meet the requirements of § 6.11 of the regulations of
> the Commissioner of Motor Vehicles and the following basic minimum
> physical requirements:

\* \* \* \* \* \* \* \* \*

> \(ii\) shall have all limbs, hands and feet, including sufficient
> digits on each hand and the use thereof to enable the driver to
> control and safely operate the vehicle \[.\]

8 N.Y.C.R.R. § 156.3(c).[^3] That regulation was in effect at the time
of the events that gave rise to this action.

B. Defendants' Discriminatory Employment Actions against [Theodore
Bacalakis]{.underline}

The District is a public school district in Suffolk County, New York.
Since at least the 1986, it has contracted with Amboy Bus Company, Inc.
(\"Amboy\") for school bus transportation of District pupils to eight
public and seven parochial schools. (Deposition of Eileen McCarthy
(\"McCarthy Dep.\") at 10 - 20 and Exhs. 1 and 2).

The contract between Amboy and the District was subject to approval and
was approved by SED when it was first entered into and when it was
renewed. (McCarthy Dep. at 16 - 17). In fact, the contract specifically
provides that it would not become \"binding until . . . the contract is
approved by . . . the [Commissioner of Education]{.underline}.\"
(McCarthy Dep., Exh. 1 at p. 29, ¶ VIII(G))(emphasis in original).

Section IV, paragraph (G) of the contract between the District and Amboy
stated:

> The names of all prospective Drivers, whom the Contractor expects may
> operate a Bus with student passengers under the terms of this
> contract, must be submitted to the District by the Contractor for
> District approval. The District shall withhold or withdraw approval of
> any Driver who does not comply with any provision of this contract.
> The District may, in the prudent exercise of its sound discretion,
> withhold or withdraw approval for any other reason. At
> [no]{.underline} time shall any Bus carrying student passengers under
> this contract be operated other than by an approved Driver.

(McCarthy Dep., Exh. 1 at p. 21, ¶ IV(G)). It also required that each
school bus driver be examined by a physician for physical fitness in
accordance with requirements promulgated by the Commissioners of DMV and
SED. (McCarthy Dep., Exh. 1 at p. 17, ¶ IV(A)).

According to the District's transportation coordinator, Eileen McCarthy,
pursuant to the contract between the District and Amboy, every school
year the District reviews the qualifications of every person whom Amboy
intends to employ as a school bus driver of District students. (McCarthy
Dep. at 20 - 47). For each driver, Amboy supplies to the District an
application package containing an SED bus driver application form
approved and supplied to the District by SED ([Id]{.underline}. at 22 -
23 and Exh. 3), and a medical examination form supplied to Amboy by DMV
([Id]{.underline}. at 24 - 29 and Exh. 4). According to Joseph LoGelfo,
the manager of Amboy's Setauket bus depot, which serves the District,
for every driver the application package, consisting of an application
form, a certification that the prospective driver has passed a road
test, a physician's report of a DMV required medical exam, and a CDL
license, is provided by Amboy for approval by the District. (Deposition
of Joseph LoGelfo (\"LoGelfo Dep.\") at 14 - 19). In addition, pursuant
to DMV requirements, every year Amboy submits an affidavit to DMV that
its drivers are qualified to operate a school bus in New York State.
([Id]{.underline}. at 24).

Under the District's review procedures, the \"superintendent has to
eventually approve \[the driver's\] employment as transporting our
District children.\" (McCarthy Dep. at 31). Ms. McCarthy reviews \"every
line of every page \[of the package\], making sure, as my position
dictates, that they are conforming with what is specified by the
State,\" prior to submission of the packages and approval by the
Superintendent. ([Id]{.underline}. at 34). The District's approval
process involves its determination of whether the bus driver applicant
is \"physically and medically qualified\" under the regulations of the
New York Commissioners of Education and Motor Vehicles.
([Id]{.underline}. at 35).

Theodore Bacalakis was employed by Amboy as a school bus driver for
District pupils from October 10, 1985 to August 9, 1991. In August 1991,
while off-duty and exiting his car, Mr. Bacalakis was struck by a car
driven by drunk driver. During the accident, his left leg was crushed,
requiring an amputation of the left leg below the knee. (Deposition of
Theodore Bacalakis (\"Bacalakis Dep.\") at 10.) In the course of the
following months, Mr. Bacalakis received rehabilitative therapy and was
fitted with a prosthesis. By May 1993, he was physically capable of
driving a school bus and otherwise able to perform the duties of a
school bus driver. ([Id]{.underline}. at 12 - 13).

In May 1993, Mr. Bacalakis went to the Amboy depot and told Joseph
LoGelfo that he was prepared to return to work. ([Id]{.underline}. at
13). Mr. LoGelfo suggested that Mr. Bacalakis take a drive in a school
bus and accompanied Mr. Bacalakis on a drive around the District.
([Id]{.underline}.; LoGelfo Dep. at 31 - 35). At the conclusion of the
ride, Mr. LoGelfo told Mr. Bacalakis that he had no problem with Mr.
Bacalakis's returning to work as a bus driver. (Bacalakis Dep. at 14).
According to Mr. LoGelfo, the only reason that Amboy did not rehire Mr.
Bacalakis at that time was that State regulations would not permit his
employment because Mr. Bacalakis was missing a limb. (LoGelfo Dep. at
36).

Mr. LoGelfo referred Mr. Bacalakis to the Bus Driver Certification Unit
of DMV to inquire whether Mr. Bacalakis was permitted to drive a school
bus under State laws. (Bacalakis Dep. at 15 - 17; LoGelfo Dep. 37). On
or about June 29, 1993, Mr. Bacalakis wrote a letter to Thomas W.
Fullington, Assistant Director of the Bus Driver Certification Unit of
DMV. (Bacalakis Dep. at 16). In his letter, Mr. Bacalakis stated that he
had lost the lower part of his left leg, had completed 22 months of
rehabilitation, and was ready to return to work. He advised Mr.
Fullington that Mr. LoGelfo had requested him to inquire of DMV to
advise him as to \"any requirements . . . necessary to expedite my
return to work.\" (Cohen Decl., Exh. D).

By letter dated July 8, 1993, Mr. Fullington advised Mr. Bacalakis of
the provisions of 15 N.Y.C.R.R. § 6.11(b)(1) then in effect. He further
stated that, in view of Mr. Bacalakis's loss of part of his leg, under
DMV and SED regulations, Mr. Bacalakis could \"not be considered
physically qualified to drive any vehicle defined as a bus\[.\]\"
(Answer of Defendants DMV and SED, ¶ 17; Cohen Decl., Exh. E).

In or about October 1993, Mr. Bacalakis spoke again with Mr. LoGelfo
about returning to work. Mr. LoGelfo told him that, in view of the DMV
and SED regulations, \"\[t\]here is nothing else I can do for you.\"
(Bacalakis Dep. at 23). Mr. LoGelfo referred him to Eileen McCarthy, the
District's Transportation Coordinator. ([Id]{.underline}.).

Mr. Bacalakis met with Ms. McCarthy in or about December 1993.
(Bacalakis Dep. at 23; McCarthy Dep. at 49 - 50). Mr. Bacalakis advised
Ms. McCarthy that he wanted to be re-employed to drive students in the
district. (McCarthy Dep. at 57). In Mr. Bacalakis's presence, Ms.
McCarthy made a telephone call to Lee Comeau, SED's transportation
supervisor. ([Id]{.underline}. at 57 - 62). Ms. McCarthy asked Mr.
Comeau whether Mr. Bacalakis could be qualified by a physician to drive
a bus, or whether an exception to the State regulations could be made.
([Id]{.underline}. at 61). According to Ms. McCarthy, Mr. Comeau gave an
\"angry\" and \"heated\" response. ([Id]{.underline}. at 59, 61). Mr.
Comeau said:

> Absolutely not can you make an exception to what is the law, and you
> as a School District are required to follow the law. If you were to do
> otherwise, your entire district and you represent them, Eileen, would
> be legally liable.

([Id]{.underline}. at 61). Mr. Comeau told Ms. McCarthy that there could
be no exception from the law prohibiting Mr. Bacalakis from being
employed as a school bus driver. ([Id]{.underline}. at 61 - 62).

Ms. McCarthy did not advise Mr. Bacalakis to complete an application to
be re-employed because she \"knew that he wasn't going to pass the
physical examination.\" ([Id]{.underline}. at 68). She did not ask Amboy
to reinstate Mr. Bacalakis as a driver because he could not have been
employed under State requirements. ([Id]{.underline}. at 70).

On or about December 15, 1993, Mr. Bacalakis filed a charge with the
U.S. Equal Employment Opportunity Commission (\"EEOC\"), alleging
unlawful discrimination by Amboy under the ADA. (Cohen Decl., Exh. F) On
or about March 3, 1994, Mr. Bacalakis filed charges with the EEOC
alleging unlawful discrimination by DMV, SED and the District under the
ADA. (Cohen Decl., Exhs. G, H and I)

All three defendants and Amboy disavowed any legal liability for the
non-hiring of Mr. Bacalakis. By letter dated May 5, 1994, Van Holland,
Director of Affirmative Action Programs for DMV, advised the EEOC that,
in view of the amputation of his leg, Mr. Bacalakis was \"not
qualified\" to operate a bus in New York State under the Motor Vehicles
Commissioners' regulations. (Cohen Decl., Exh. K) In a letter dated June
17, 1994, Kathleen Surgalla, Assistant Counsel to SED, advised the EEOC
that Mr. Bacalakis was ineligible to drive a school bus under the then
existing 8 N.Y.C.R.R. § 156.3(c)(1). The letter further stated that SED
was \"currently reviewing §156.3(c)(1) to incorporate specific
functional performance standards.\" (Cohen Decl., Exh. I) By letter
dated March 23, 1994, the District advised EEOC that it did not consider
itself to be Mr. Bacalakis's employer, and provided excerpts of DMV and
SED regulations \"that explain why Mr. Bacalakis was removed from his
position as a bus driver.\" (Cohen Decl., Exh. J) Amboy took the
position that Mr. Bacalakis was not qualified for employment as a school
bus driver because he did not meet the requirements set forth in DMV and
SED regulations.

On September 28, 1994, the EEOC issued reasonable cause determinations
that DMV, SED, the District and Amboy had violated the ADA. (Cohen
Decl., Exhs. M, N, O and P) The EEOC found that DMV and SED, through
their regulations, caused Mr. Bacalakis to be subjected to
discrimination on the basis of his disability. (Cohen Decl., Exhs. M and
N) It found that the District, through its contractual relationship with
Amboy, discriminated against Mr. Bacalakis when did not permit Amboy to
re-employ Mr. Bacalakis because he did not meet DMV and SED
requirements, and that the District \"was in a position to influence\"
Mr. Bacalakis's rehire. (Cohen Decl., Exh. O) Finally, the EEOC found
that Amboy discriminated against Mr. Bacalakis on the basis of
disability by refusing to rehire him in adherence to the DMV and SED
regulations. (Cohen Decl., Exh. P)

The EEOC thereafter attempted to resolve the dispute through negotiation
and conciliation. At a conciliation meeting on January 24, 1995,
however, representatives of DMV and SED advised the EEOC that a
gubernatorial memorandum precluded any changes in the state regulations
at that time. (Cohen Decl., Exh Q (Affidavit of Elizabeth Singletary,
EEOC Investigator, in [EEOC]{.underline} v. [Amboy Bus
Company]{.underline}, dated January 17, 1997) at p.2, ¶ 8) In fact, by
Executive Order No. 2, dated January 5, 1995, the Governor of the State
of New York had established a moratorium on the adoption of any rule or
regulation by any New York State department or agency over which he had
executive power. [See]{.underline} 9 N.Y.C.R.R. § 5.2.

Upon the failure of conciliation, the EEOC referred the probable cause
determinations with respect to DMV, SED and the District to the United
States Department of Justice for further action. [See]{.underline} 42
U.S.C. § 2000e-5. By letter dated January 10, 1996, Plaintiff notified
the Governor and Attorney General of the State of New York of the intent
to commence an action under the ADA to redress the disability
discrimination caused by the DMV and SED regulations and to obtain
redress for Mr. Bacalakis. The letter further invited DMV and SED to
attempt to resolve the contemplated action in advance of the filing of a
complaint. (Cohen Decl., Exh. R). Similarly, by letter dated January 24,
1996, Plaintiff notified the District of the intent to commence an
action under the ADA to redress the disability discrimination caused by
the DMV and SED regulations and to obtain redress for Mr. Bacalakis and
invited the District to attempt to resolve the contemplated action in
advance of the filing of a complaint. (Cohen Decl., Exh. S)

Plaintiff and DMV and SED thereupon entered into discussions and
negotiations in an attempt to reach a complete resolution of the dispute
and eliminate their discriminatory practices. (Complaint ¶ 22; Answer of
Defendants DMV and SED, ¶ 22; Answer of Defendant District, ¶ 22). The
efforts were unsuccessful. For example, the defendants maintained that
they are not liable for Mr. Bacalakis's lost wages or damages incurred
as a consequence of their rules, regulations and actions. Accordingly,
on June 13, 1996, Plaintiff commenced this action.

The pre-filing negotiations did result in some relevant changes in
defendants' practices. On May 3, 1996, SED adopted an amended 8
N.Y.C.R.R. § 156.3(c). (Complaint ¶ 12; Answer of Defendants DMV and SED
¶ 12). The new regulation, which was in effect until September 1, 1997,
did not prohibit a person missing a limb from driving a school bus. In
addition, following commencement of this action, on August 28, 1996, DMV
adopted an amended 15 N.Y.C.R.R. § 6.11, which does not contain a
provision prohibiting the driving of a bus by a person who is missing a
limb.

In or about September 1996, Amboy rehired Theodore Bacalakis as a school
bus driver of students in the District. (Bacalakis Dep. at 72). Between
1993, when Mr. Bacalakis first requested that he be reinstated as a
school bus driver of District students until his rehire, he lost wages
in the amount of \$68,723. In addition, he lost Amboy's share of health
insurance payments in the amount of \$4,095. (Bacalakis Dep. at 36 - 38
and Exhs. A and B) The defendants have not made Mr. Bacalakis whole for
the losses he incurred during the period when his re-employment was
blocked.

C. [The Instant Motion]{.underline}

In its complaint, the United States sought comprehensive injunctive
relief against the DMV and SED regulations then in effect and the
District's implementation of them. In the interim, a substantial change
in circumstances consistent with the equitable relief sought by the
United States, may render the Court's issuance of an injunction
unnecessary. As set forth above, following commencement of this action,
DMV adopted an amended 15 N.Y.C.R.R. § 6.11, effective August 28, 1996,
that eliminated the categorical disqualification of a person missing a
limb from employment as a bus driver.

Similarly, SED adopted an amended 8 N.Y.C.R.R. § 156.3(c), effective May
3, 1996, that eliminated the categorical disqualification of a person
missing a limb from employment as a school bus driver. The United States
alleged that the amended version of § 156.3(c) also violated the ADA
because, [inter]{.underline} [alia]{.underline}, it would have subjected
a school bus driver applicant with a disability to a pre-employment
physical performance test not required of an applicants without a
disability. Following commencement of this action, however, SED adopted
a second amendment to § 156.3(c), effective September 1, 1997, and the
United States has not amended its complaint to challenge the current
regulation.

In short, much of the change which the United States sought in the
demand in its complaint for injunctive relief has been accomplished.
Although voluntary abandonment of an unlawful practice does not defeat a
demand for injunctive relief, upon proper assurances by DMV and SED that
they will not re-adopt the prohibitions contained in versions of 15
N.Y.C.R.R. § 6.11 and 8 N.Y.C.R.R. § 156.3(c) in effect at the time this
action was commenced, there may be no need for issuance of an
injunction.

Accordingly, this motion focuses on defendants' liability for the
consequences of the implementation of the regulations and the
compensation for Mr. Bacalakis's lost wages and benefits. Plaintiff does
not presently maintain that there are no genuine issues of material fact
as to the amount of compensation that should be awarded to Mr.
Bacalakis's for his non-pecuniary losses resulting from defendants'
actions, which will therefore be subject to calculation by a jury.

[ARGUMENT]{.underline}

[POINT I]{.underline}

> DEFENDANTS VIOLATED THE AMERICANS [WITH DISABILITIES ACT OF
> 1990    ]{.underline}

Title I of the ADA prohibits discrimination in employment on the basis
of disability. Section 102(a) of the ADA provides that:

> No covered entity shall discriminate against a qualified individual
> with a disability because of the disability of such individual in
> regard to job application procedures, the hiring, advancement, or
> discharge of employees, employee compensation, job training, and other
> terms, conditions, and privileges of employment.

42 U.S.C. 12112(a).

In order to establish a claim of unlawful discrimination under the
employment title of the ADA, a plaintiff must show (1) that the
aggrieved person has a disability within the meaning of the ADA; (2) is
a \"qualified person with a disability,\" that is, that he can perform
the essential functions of the job with or without reasonable
accommodation; and (3) has suffered discrimination, i.e, an adverse
employment action; and (4) that the party responsible for the adverse
employment action is a \"covered entity.\" [See]{.underline} [Reeves v.
Johnson Controls World Services, Inc.]{.underline}, 140 F.3d 144, 149-50
(2d Cir. 1998)(citing [Ryan v. Grae & Rybicki,P.C,]{.underline}, 135
F.3d 867, 869-70 (2d Cir. 1998)). All four elements of a claim under
Section 102(a) are present here. Indeed, defendants do not appear to
raise any serious dispute as to the existence of those elements except
as to whether they are covered entities within the meaning of the ADA.

A. A Missing Limb is a Disability

[Within the Meaning of the ADA]{.underline}

This Court correctly concluded in [EEOC]{.underline} v. [Amboy Bus
Company]{.underline} that Mr. Bacalakis's condition, the loss of his
left leg below the knee, is a disability within the meaning of the ADA.
(Slip op. at 7 n.7). As the Supreme Court recently explained in [Bragdon
v. Abbott]{.underline}, U.S. , 118 S.Ct. 2196, 2022 (1998), the analysis
of whether a person has a disability under the ADA proceeds in three
steps: (1) whether the person suffers from a physical or mental
impairment; (2) whether the activity identified as being limited by the
impairment \"constitutes a major life activity under the ADA;\" and (3)
whether the impairment \"substantially limited\" the identified major
life activity. [See]{.underline} [Colwell v. Suffolk County Police
Department]{.underline}, 158 F.3d 635, 641 (2d Cir. 1998).

The ADA defines \"disability\" as \"a physical or mental impairment that
substantially limits one or more of the major life activities of such
individual.\" 42 U.S.C. § 12102(2). The amputation of part of leg is
plainly a \"physical impairment\" under regulations promulgated by the
EEOC, where that term is defined, in pertinent part, as an \"anatomical
loss\" affecting the \"musculoskeletal\" system. 29 C.F.R. §
1630.2(h)(1).[^4]

That impairment surely limits a major life activity, the ability to
walk. [See]{.underline} 29 C.F.R. § 1630.2(I)(defining \"walking\" as a
major life activity); [Reeves v. Johnson Controls]{.underline}, 140 F.3d
at 152 (walking is treated by the EEOC regulations and \"by our own
precedents\" as a major life activity \"[per]{.underline}
[se]{.underline}\").

In addition, the amputation of part of a leg \"substantially limits\"
the ability to walk. The EEOC's regulations define the term
\"substantially limits\" to mean that because of the impairment, a
person is:

> \(i\) Unable to perform a major life activity that the average person
> in the general population can perform; or
>
> \(ii\) Significantly restricted as to the condition, manner or
> duration under which an individual can perform a particular major life
> activity as compared to the condition, manner or duration under which
> the average person in the general population can perform the same
> major life activity.

29 C.F.R. § 1630.2(j)(1). Because Mr. Bacalakis's loss of his leg is a
severe impairment, is a permanent condition, and will permanently
restrict his ability to walk as compared to the manner in which persons
in the general population can walk, as a matter of law it
\"substantially limits\" a major life activity under the ADA.
[See]{.underline} 29 C.F.R. § 1630.2(j)(2); [Colwell]{.underline}, 158
F.3d at 643-44; [Ryan]{.underline}, 135 F.3d at 870.

B. Mr. Bacalakis is a \"qualified

[individual with a disability\"]{.underline}

The Court also correctly concluded in [EEOC]{.underline} v. [Amboy Bus
Company]{.underline} that Mr. Bacalakis is a \"qualified individual with
a disability.\" (Slip op. at 7 - 11). Under the ADA, \"the term
'qualified individual with a disability' means an individual with a
disability who, with or without reasonable accommodation, can perform
the essential functions of the employment position that such individual
holds or desires.\" 42 U.S.C. § 11211(8); [See]{.underline} [Damico v.
City of New York]{.underline}, 132 F.3d 145, 151 (2d Cir. 1998);
[Borkowski v. Valley Central School District]{.underline}, 63 F.3d 131,
135 (2d Cir. 1995). As the Supreme Court stated in a related context, a
disabled individual is qualified if he \"is able to meet all of a
\[position's\] requirements in spite of his handicap.\" [School Board of
Nassau County v. Arline]{.underline}, 480 U.S. 273, 287 n. 17 (1987)

None of the defendants can contend that Mr. Bacalakis was unable to
perform the essential functions of the job as a school bus driver with
or without reasonable accommodation during the three years that
employment was withheld from him. Amboy's manager, Joseph LoGelfo, was
satisfied at that time that Mr. Bacalakis could perform the essential
functions of the job. According to Mr. LoGelfo, the only reason that
Amboy did not rehire Mr. Bacalakis at that time was that State
regulations would not permit his employment because Mr. Bacalakis was
missing a limb. (LoGelfo Dep. at 36). As this Court observed, moreover,
the fact that Mr. Bacalakis was rehired upon the rescission of the state
regulatory prohibitions against employing a person missing a limb as a
bus driver demonstrates that he was able to perform the essential
functions of the job. (Slip op. at 7 - 8). And, as the Court also noted,
the DMV regulation itself recognized that a person missing a limb can
perform the essential functions of the job, since it permitted at least
some persons missing limbs \-- those certified as bus drivers before
1978 \-- to continue to drive buses. (Slip op. at 8 - 9).

C. Defendants Unlawfully Discriminated

[Against Mr. Bacalakis              ]{.underline}

There can be no dispute that as a result of the promulgation and
implementation by defendants of the DMV and SED regulations, Mr.
Bacalakis suffered an adverse employment action: he was not rehired to
the job for which he was qualified. As set forth in the Complaint, ¶ 23,
defendants' actions discriminated against Mr. Bacalakis and violated the
ADA in at least three respects. By enforcing their regulations and
preventing Mr. Bacalakis's employment, defendants:

\(1\) limited and classified a person seeking employment in a way that
adversely affected his opportunity because of his disability, in
violation of 42 U.S.C. § 12112(b)(1);

\(2\) utilized standards, criteria, or methods of administration that
had the effect of discrimination on the basis of disability, in
violation of 42 U.S.C. § 12112(b)(3); and

\(3\) used a qualification standard that screens out a class of
individuals with disabilities when the standard is not job-related and
is not consistent with business necessity, in violation of 42 U.S.C. §
12112(b)(6).

The ADA codifies the rule first set forth in [Arline]{.underline} that a
requirement that operates to prohibit the employment of a person because
of his disability must be job-related. In order for such a requirement
to be job-related, there must be a showing that it identifies the
essential functions of the desired job. Thus, when confronted with a
defense to a claim that a defendant has used a qualification standard
that screens out a class of individuals with disabilities when the
standard is not job-related and is not consistent with business
necessity, a court must look behind the standard to determine if it is
related to an essential function of the job. \"Such an inquiry is
essential if \[the ADA\] is to achieve its goal of protecting
handicapped individuals from deprivations based on prejudice,
stereotypes, or unfounded fear . . .\" [Arline]{.underline}, 480 U.S. at
287. In other words, \"defendants cannot merely mechanically invoke any
set of requirements and pronounce the \[disabled\] applicant or
prospective employee not otherwise qualified.\" [Pandazides v. Virginia
Board of Education]{.underline}, 946 F.2d 345, 349 (4th Cir. 1991).

As noted above, and as the Court has found, there is no basis for
concluding that the defunct DMV and SED regulations embraced a
job-related that was consistent with business necessity. Indeed, the
regulations constitute [per]{.underline} [se]{.underline} violations of
the ADA because, by incorporating a blanket exclusion from employment as
a bus driver of every person missing part or all of a limb, they did not
permit the individualized assessment of qualification for the job that
is required by the statute. [See]{.underline} [Hutchinson v. United
Parcel Service, Inc.]{.underline}, 883 F.Supp. 379, 396-98 (N.D. Iowa
1995); [Stillwell v. Kansas City, Mo., Board of Police
Commissioners]{.underline}, 872 F.Supp. 682, 686-88 (W.D. Mo.
1995)(blanket exclusion of one-handed applicants from licensing as
police officers was a [per]{.underline} [se]{.underline} violation of
Title II of ADA); [Bombrys v. City of Toledo]{.underline}, 849 F.Supp.
1210, 1216-19 (N.D. Ohio 1993)(irrebuttable presumption that applicant
cannot perform the essential functions of the job because of a
disability violates the ADA); [Sarsycki v. United Parcel
Service]{.underline}, 862 F.Supp. 336, 341(W.D.Okl. 1994)(under the ADA,
an \"individualized assessment is absolutely necessary if persons with
disabilities are to be protected from unfair and inaccurate stereotypes
and prejudices.\") Thus, DMV's, SED's and the District's applications of
the regulations constituted discrimination under Title I of the ADA.

D. Defendants are \"Covered

[Entities\" under the ADA]{.underline}

Section 102(a) of the ADA, 42 U.S.C. § 11212(a) prohibits discrimination
by a \"covered entity.\" Under Section 101 of the ADA, the term
\"'covered entity' means an employer, employment agency, labor
organization or joint labor-management committee.\" 42 U.S.C. §
11211(2). Although DMV, SED and the District are not employers with
respect to Mr. Bacalakis within the common law meaning of that term,
they fall well within the meaning of the term \"employer\" as it has
long been applied under federal employment discrimination statutes. In
this Circuit, the term employer is \"sufficiently broad to encompass any
party who significantly affects access of any individual to employment
opportunities\[.\]\" [Cook v. Arrowsmith Shelburne, Inc.]{.underline},
69 F.3d 1235, 1240 (2d Cir. 1995)(quoting [Spirt v. Teachers Insurance
and Annuity Association]{.underline}, 691 F.2d 1054 (2d Cir. 1982,
[vacated]{.underline} [and]{.underline} [remanded]{.underline}
[on]{.underline} [other]{.underline} [grounds]{.underline}, 463 U.S.
1223 (1983)). Under that test, each of the three defendants is a covered
entity under the ADA.

Numerous cases have recognized that an entity can be an \"employer\"
subject to suit under federal anti-discrimination laws even when it has
no direct employment relationship with the aggrieved individual.
[E]{.underline}.[g]{.underline}., [Cook v. Arrowsmith
Shelburne]{.underline}, 69 F.3d at 140 (parent company of subsidiary is
employer with respect to subsidiary's employee); [Carparts Distribution
Center, Inc. v. Automotive Wholesaler\'s Association of New England,
Inc.]{.underline}, 37 F.3d 12 (1st Cir. 1994)(under ADA, trade
association and trust could be held liable as an employer for alleged
disability discrimination against member's employees); [Doe on behalf of
Doe v. St. Joseph\'s Hospital of Fort Wayne]{.underline}, 788 F.2d 411,
424 (7th Cir. 1986)(hospital can be employer under Title VII with
respect to independent contractor physician whose staff privileges it
revoked); [Sibley Memorial Hospital v. Wilson]{.underline}, 488 F.2d
1338 (D.C. Cir. 1973)(hospital can be Title VII employer with respect to
independent contractor private-duty nurse to whom it refused to refer
patients; \"\[c\]ontrol over access to the job market\" and \"power . .
. to foreclose . . . access by any individual to employment
opportunities\" are the key criteria in determining potential Title VII
liability of employers); [Diana v. Schlosser]{.underline}, 20 F.Supp.2d
348, 352 (D.Conn. 1998)(radio station may be employer under Title VII of
reporter hired by another company under contract with radio station to
supply on-air traffic reports; radio station \"had significant control
over \[reporter's\] ability to maintain a substantial employment
opportunity, even though she was not an employee\" of the radio
station); [Goyette v. DCA Advertising Inc.]{.underline}, 830 F.Supp.
737, 744 (S.D.N.Y. 1993)(Japanese parent corporation is a Title VII
employer where policy of requiring approval of parent corporation for
subsidiary\'s termination of Japanese nationals alleged to have
contributed to discharge of American citizens during downsizing of
company); [Alie v. NYNEX Corporation]{.underline}, 158 F.R.D. 239,
246-47 (E.D.N.Y. 1994)(granting leave to amend complaint to plead
adequately that parent corporation is \"employer\" within meaning of
Title VII); [Matthews v. New York Life Insurance Company]{.underline},
780 F.Supp. 1019, 1023-24(S.D.N.Y. 1992)(insurance company is Title VII
employer of the employee of the company's independent contractor).

The leading case in the Second Circuit is [Spirt v. Teachers Insurance
and Annuity Association]{.underline}. There, a Title VII plaintiff sued
entities established to manage retirement annuity funds for using
sex-discriminatory mortality tables in determining retirement benefits.
Although the plaintiff, a professor, had a direct employment
relationship with a university, and not with the fund managers, the
Court of Appeals held that the fund managers were \"employers\" for
Title VII purposes. It \"recognized \'that the term \"employer,\" as it
is used in Title VII, is sufficiently broad to encompass any party who
significantly affects access of any individual to employment
opportunities, regardless of whether that party may technically be
described as an \'employer\' of an aggrieved individual as that term has
been defined at common law.\'\" [Id]{.underline}., 691 F.2d at 1063
(quoting [Vanguard Justice Society, Inc. V. Hughes]{.underline}, 471 F.
Supp. 670, 696 (D.Md. 1979)); [see]{.underline} [also]{.underline} [Kern
v. City of Rochester]{.underline}, 93 F.3d 38, 45 (2d Cir. 1996)(citing
[Spirt]{.underline} with approval).

Several courts have held that state or local governments that enact or
implement discriminatory employment standards are employers under
anti-discrimination laws, even though they have no direct employment
relationship with the plaintiff. In [United States v. State of
Illinois]{.underline}, 3 A.D. Cases 1157, 1994 WL 562180 (N.D. Ill.
1994), the State enacted a statute which permitted an annuity fund to
exclude municipal police officers and firefighters who were sufficiently
fit to hold their positions from participation in the retirement plan
because of the existence of disability. Even though the State did not
directly employ the aggrieved persons, the court held that the State is
a covered entity under the ADA as \"an employer . . . which affects the
relevant employees, compensation or terms, conditions, or privileges of
employment.\" 1994 WL 562180 at \*3. Similarly, in [United States Equal
Employment Opportunity Commission v. City of Evanston]{.underline}, 854
F. Supp 534, 537-38 (N.D. Ill. 1994), the court held that the State was
an \"employer\" within the meaning of the Age Discrimination in
Employment Act of 1967 because, in enacting and enforcing a statute that
denied firefighters hired after they attained the age of thirty-five
from participation in a pension plan maintained by a municipality, the
State \"interfered with Evanston firefighters\' access to employment
benefits.\" [See]{.underline} [also]{.underline} [Baranek v.
Kelly]{.underline}, 630 F. Supp. 1107, 1113 (D.Mass. 1986) (state home
care agency that had \"the \'means and authority\' to control
discriminatory employment practices\" of regional employers was an
\"employer\" under Title VII because it \"exercise\[d\] significant
control over an employment situation\"); [Barone v.
Hackett]{.underline}, 602 F. Supp. 481, 483 (D.R.I. 1984) (director of
State agency that administered disability benefits for State employees
liable under Title VII even though the agency did not employ the
plaintiffs, stating \"Title VII liability is not limited to the entity
which issues pay checks to the employee\").

Under these principles, DMV and SED are \"employers' and, therefore,
\"covered entities\" under Title I. As set forth in detail at pp. 2 to 6
[ante]{.underline}, DMV and SED exercise significant control over the
access of individuals to employment as bus drivers in general, and
school bus drivers, in particular. As demonstrated in this case, that
control is not merely a matter of their promulgation of standards, but
also includes frequent, routine and detailed review of the common
carrier's and a school district's adherence to regulatory requirements.
Failure by the carrier to comply with DMV regulations subjects the
carrier to fines and loss of its license. The school district's
non-compliance could result in SED's withholding of reimbursement for
transportation services provided by the district. It is plain that under
the test of [Spirt]{.underline} and the other cases cited above, DMV,
SED and the District exercise sufficient control over bus drivers'
access to employment to make them employers under the ADA.

Although it is not necessary to demonstrate the specific involvement of
DMV and SED in the denial of employment to Mr. Bacalakis to establish
their liability, it is the case that their actions involved more than
the usual intensive control over access to bus driver employment that
those agencies routinely exercise. All three governmental defendants,
along with Amboy, were involved in the decision to deny Mr. Bacalakis
employment. In his letter to DMV's Bus Driver Certification Unit, Mr.
Bacalakis unsuccessfully petitioned DMV to relieve him and Amboy from
the restrictions of a plainly unlawful regulation. He also
unsuccessfully approached the District's transportation coordinator who,
in turn, sought directly from SED relief from its illegal regulation.
When the State agencies refused to relent, the District too closed the
door on Mr. Bacalakis. For the next three years, even after he filed
EEOC charges against them and Plaintiff notified them of its intent to
sue, the defendants refused to modify their position and continued to
block Mr. Bacalakis's employment.

The decision in [Equal Employment Opportunity Commission v. State of
Illinois]{.underline}, 69 F.3d 167 (7th Cir. 1995)(Posner, J.) is not in
conflict with a determination that DMV and SED are liable under the ADA.
There, the district court found that the State was an employer for
purposes of the Age Discrimination in Employment Act where a state
statute enacted prior to the amendment to the ADEA that extended
protection to persons over 70 years of age, prohibited local school
districts from awarding tenure to public school teachers over 70 years
old. The Seventh Circuit reversed. Noting that the State did not take
any action to enforce its statute by, for example, terminating funding
to school districts that did not enforce it, the court held that the
State\'s failure affirmatively to notify subdivisions that the statute
was invalid under the Supremacy Clause of the Constitution was
insufficient to hold it liable as an \"employer.\" [Id]{.underline}. at
171.

The instant case is different. Here, the State actively enforced its
regulation. Indeed, as noted above, when the District called SED, SED
advised the District that under State regulations Mr. Bacalakis could
not be rehired. DMV refused to modify its position when, at Amboy's
suggestion, Mr. Bacalakis approached the agency. The District and Amboy
complied with state directives. In fact, the Seventh Circuit's opinion
suggests that, under the facts of this case, it would hold the State
liable. Explaining its rejection of the argument for the State's
liability, it stated:

> Were the state pulling the strings in the background \-- telling the
> local school districts whom to hire and fire and how much to pay them
> \-- a point would soon be reached at which the state was the de facto
> employer and the local school districts merely its agents. That point
> was not reached here. There is no suggestion that the state knew about
> these two teachers or wanted them to resign. The provision of the
> school code requiring retirement at age 70 cannot be treated as a
> firing directive by the state, because the provision was invalid and
> there is not evidence that the state made any effort to enforce it.

[Id]{.underline}. In this case, the \"point . . . at which the state was
the [de]{.underline} [facto]{.underline} employer\" was reached.

The District is also an employer under the rule of [Spirt]{.underline}
and its progeny. In fact, two cases involving New York State bus drivers
have applied [Spirt]{.underline} principles in circumstances nearly
identical to the circumstances of this case to hold boards of education
liable for adverse employment actions taken against bus drivers hired by
common carriers. In [Hill v. New York City Board of
Education]{.underline}, 808 F. Supp. 141 (E.D.N.Y. 1992), the Board of
Education, under a contract with Amboy Bus Company, retained power to
certify the competency of a school bus driver employed by Amboy. In an
action challenging the Board\'s decertification of a driver, which led
to his discharge, as racially-discriminatory, Judge Glasser held that
the Board was an employer for Title VII purposes, even though the driver
was directly employed by Amboy. 808 F.Supp. at 148 (\"\[T\]he Board
'significantly affect\[ed\] access of \[the plaintiff\] to employment
opportunities . . .' As such, the Board constituted an 'employer' of the
plaintiff for Title VII purposes.\")

In [Equal Employment Opportunity Commission v. KDM School Bus
Company]{.underline}, 612 F.Supp. 369 (S.D.N.Y. 1985), the EEOC sued a
common carrier, the school district with which it was under contract to
provide transportation to district students, and the New York State
Education Department, alleging claims under the Age Discrimination in
Employment Act, 29 U.S.C. § 621 [et]{.underline} [seq]{.underline}. The
EEOC brought the suit for injunctive relief and damages to redress the
discharge of school bus drivers who were forced to retire under an SED
regulation mandating retirement at age of 65. The school district moved
to dismiss, arguing that, since it had no direct employment relationship
with the school bus drivers, it could not be held responsible for their
termination.

Judge Weinfeld rejected the school district's motion in terms that are
equally applicable here. He observed that \"\[s\]tatutory employers 'who
are neither actual nor potential direct employers of particular
complainants, but who control access to such employment and who deny
such access by reference to invidious criteria' may be held liable for
violations of the ADEA.\" [Id]{.underline}., 612 F.Supp. at 372-73
(quoting [Sibley Memorial Hospital v. Wilson]{.underline}, 488 F.2d at
1342). He continued:

> There is no dispute that the bus drivers are directly employed by the
> companies with which the School District contracts for bus services.
> The initial responsibility for the bus transportation of children
> between the ages five to twenty-one is that of the School District.
> However, it has delegated this responsibility to the defendant KDM
> School Bus Company, under a contract which requires the bus company to
> comply with the State regulation which plaintiff contends is in
> violation of the ADEA. Assuming that the regulation in fact violates
> the ADEA, the School District may be held liable for interfering with
> the bus drivers' employment opportunities based upon impermissible
> age-related criteria. To hold otherwise would be to condone indirect
> exploitation of age-based factors which would be impermissible if
> applied to persons directly employed by the School District.

[Id]{.underline}., 612 F.Supp at 373.

Accordingly, DMV, SED and the District are employers and covered
entities under the ADA. Because their actions constituted unlawful
discrimination, they should be held liable for violating Section 102(a)
of the statute.

[POINT II]{.underline}

THE COURT SHOULD ORDER DMV, SED AND\
THE DISTRICT TO PAY BACK WAGES AND\
[BENEFITS                          ]{.underline}

Three years after he was able and willing to return to his position, Mr.
Bacalakis was rehired. The wait was directly caused by DMV's and SED's
unlawful discriminatory regulations, and the joint implementation of
them by those agencies, the District and Amboy. In that period, Mr.
Bacalakis lost wages in the amount of \$68,723 and benefits in the
amount of \$4,095. (Bacalakis Dep. at 36 - 38 and Exhs. A and B.) The
Court should enter a remedial order directing DMV, SED and the District
to pay those amounts to Mr. Bacalakis with pre-judgment interest.

Section 107(a) of the ADA, 42 U.S.C. § 12117(a), explicitly incorporates
into the ADA the powers, remedies and procedures set forth in Title VII
of the Civil Rights Act of 1964. [See]{.underline} [Colwell v. Suffolk
County Police Dept.]{.underline}, 967 F.Supp. 1419, 1431 (E.D.N.Y.
1997). When framing a remedial order under these powers, \"the court
must, as nearly as possible, recreate the conditions and relationships
that would have been in existence in the absence of unlawful
discrimination.\" [Franks v. Bowman Transportation Co.]{.underline}, 424
U.S. 747, 769 (1976); [Rios v. Enterprise Association Steamfitters Local
No. 638]{.underline}, 860 F.2d 1168, 1175 (2d Cir. 1988). That principle
applies to the award of back pay to the victims of unlawful
discrimination. As the Supreme Court has explained, \"when a wrong has
been done, and the law gives a remedy, the compensation shall be equal
to the injury \[and\] the injured party is to be placed as near as may
be, in the situation he would have occupied if the wrong had not been
committed.\" [Albemarle Paper Company v. Moody]{.underline}, 422 U.S.
405, 418-19 (1975) (internal quotation marks and citations omitted).
[See]{.underline} [Saulpaugh v. Monroe Community Hospital]{.underline},
4 F.3d 134, 145 (2d Cir. 1993)(\"The purpose of back pay is to
'completely redress the economic injury the plaintiff has suffered as a
result of discrimination.'\")(quoting [Gutzwiller v. Fenik]{.underline},
860 F.2d 1317, 1333 (6th Cir. 1988)). \"It follows that, given a finding
of unlawful discrimination, back pay should be denied only for reasons
which, if applied generally, would not frustrate the central statutory
purposes of eradicating discrimination throughout the economy and making
persons whole for injuries suffered through past discrimination.\"
[Albemarle]{.underline}, 422 U.S. at 421.

An employee is entitled to back pay from the date of the discriminatory
employment action until the discrimination is rectified. [Clarke v.
Frank]{.underline}, 960 F.2d 1146, 1151 (2d Cir. 1992). In refusal to
hire cases, the back pay period commences on the date the employee is
rejected for employment. [Sands v. Runyon]{.underline}, 28 F.3d 1323,
1327 (2d Cir. 1994). In general, the back pay period will terminate
whenever the victim no longer suffers the economic effects of
discrimination. [Clarke v. Frank]{.underline}, 960 F.2d at 1151. When a
case involves employment of indefinite duration, courts presume that
economic injury continued until reinstatement because \"in the absence
of evidence to the contrary, no reason exists to assume that employment
for an indefinite term would not have lasted indefinitely.\" [Walker v.
Ford Motor Company]{.underline}, 684 F.2d 1355, 1361 (11th Cir. 1982).

It is well established that Title VII authorizes the award of
prejudgment interest as part of a back pay remedy. The Supreme Court has
observed that \"the back pay award authorized by § 706 of Title VII . .
. is a manifestation of Congress' intent to make 'persons whole for
injuries suffered through past discrimination.'\" [Loeffler v.
Frank]{.underline}, 486 U.S. 549, 558 (1988)(quoting [Albemarle Paper
Co. v. Moody]{.underline}, 422 U.S. at 421). It has also made clear that
\"prejudgment interest . . . is an element of complete compensation.\"
[Id]{.underline}.(quoting [West Virginia v. United States]{.underline},
479 U.S. 305, 310 (1987)).

Similarly, the Court of Appeals has observed that \"\[p\]re-judgment
interest . . . serves the compensatory purpose by making up for the
delay in receiving the money, during which time the employees were
denied its use, and by partially offsetting the reduction in the value
of the delayed wages caused by inflation.\" [Donovan v. Sovereign
Security, Ltd.]{.underline}, 726 F.2d 55, 58 (2d Cir. 1984). Thus, it
has not hesitated to reverse district court judgments that fail to
include prejudgment interest as a component of back pay.
[See]{.underline}, [e]{.underline}.[g]{.underline}., [Reed v. A.W.
Lawrence & Co., Inc.]{.underline}, 95 F.3d 1170, 1183 (2d Cir. 1996);
[Sands v. Runyon]{.underline}, 28 F.3d 1327-28; [Saulpaugh v. Monroe
Community Hospital]{.underline}, 4 F.3d at 145. Indeed, \"'it is
ordinarily an abuse of discretion not to include pre-judgment interest
in a back-pay award.'\" [Saulpaugh v. Monroe Community
Hospital]{.underline}, 4 F.3d at 145 (quoting [Clarke v.
Frank]{.underline}, 960 F.2d at 1154); [see]{.underline}
[also]{.underline} [EEOC v. County of Erie]{.underline}, 751 F.2d 79, 81
(2d Cir. 1984); [Donovan v. Sovereign Security, Ltd.]{.underline}, 726
F.2d at 58.

No circumstances exist here that would favor the Court's exercise of
discretion to deny either back pay or prejudgment interest. Providing
such relief would be in accord with the congressional objective of
eradicating employment discrimination on the basis of disability from
the national economy. Accordingly, the United States respectfully
submits that an order awarding back pay with interest in an amount that
will make Theodore Bacalakis whole should be entered.[^5]

[CONCLUSION]{.underline}

For the foregoing reasons, the United States respectfully submits that
its motion for summary judgment should be granted and order should be
entered determining that DMV, SED and the District are liable under the
ADA for unlawful employment discrimination and directing them to pay
back pay with prejudgment interest to compensate Theodore Bacalakis.

Dated: Brooklyn, New York

March 25, 1999

Respectfully submitted

ZACHARY W. CARTER

United States Attorney,

Eastern District of New York

One Pierrepont Plaza

Brooklyn, New York 11201

By: \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

SANFORD M. COHEN (SC-6601)

Assistant U. S. Attorney

\(718\) 254-6249

[^1]: In connection with this motion, Plaintiff submits its Statement
    Pursuant to Local Civil Rule 56.1; the Deposition of Theodore
    Bacalakis, dated March 20, 1997; the Deposition of Joseph LoGelfo,
    dated March 25, 1997; the Deposition of Eileen McCarthy, dated April
    11, 1997; and the Declaration of Sanford M. Cohen, dated March 25,
    1999, and the exhibits annexed thereto.

[^2]: The successor regulation is now set forth at 15 N.Y.C.R.R. § 6.10.

[^3]: By letter dated January 24, 1996, plaintiff notified SED of its
    intent to commence an action alleging that 8 N.Y.C.R.R. § 156.3(c)
    as then in effect violated the ADA. (Declaration of Sanford M.
    Cohen, dated March 25, 1999 (\"Cohen Decl.\")Exh. R). SED thereafter
    promulgated an amended § 156.3(c), effective May 3, 1999, which did
    not categorically prohibit the employment as a bus driver of a
    person missing a limb, but which the United States alleged in its
    complaint violated the ADA. Following commencement of this action,
    SED promulgated another amended version of § 156.3(c), effective
    September 1, 1997. The United States has not amended its complaint
    to challenge § 156.3(c) as it has existed since September 1, 1997.

[^4]: \"\[G\]reat deference\" is accorded the EEOC's interpretation of
    the ADA \"since it is charged with administering the statute.\"
    [Francis v. City of Meriden]{.underline}, 129 F.3d 281, 283 n.1 (2d
    Cir. 1997)(internal quotation marks and citation omitted).

[^5]: At an appropriate time, when the Court so directs, plaintiff will
    submit calculations setting forth the interest on the back pay that
    will have accrued from the time of defendant's initial refusal to
    hire until the date a judgment would be entered.