MINER, Circuit Judge:
Defendants-appellants New York State
and the New York State Department of Correctional Service (collectively,
"DOCS") appeal from a judgment granting damages and other relief to
plaintiff-appellee Keith E. Muller by the United States District Court
for the Northern District of New York (Scullin, J.), following a jury
trial. Muller, a correctional officer formerly employed by DOCS, brought
suit alleging that DOCS discriminated against him because of his disability
of reactive airway disease, which substantially impaired his major
life activities of working and breathing, and that DOCS had retaliated
against him for seeking to enforce his rights under state and federal
law, in violation of the Americans with Disabilities Act ("ADA"),
42 U.S.C. § 12101 et seq. At trial, DOCS moved for judgment
as a matter of law on the disability claim at the end of Muller's
case, arguing that Muller had failed to present sufficient evidence
from which a jury could conclude that Muller suffered from a disability
within the meaning of the ADA. The court denied this motion. After
DOCS presented its defense, the case was submitted to the jury, and
the jury returned a verdict in favor of Muller on both the discrimination
and retaliation claims. DOCS then renewed its motion for judgment
as a matter of law. In this motion, DOCS argued, inter alia,
that Muller had presented legally insufficient evidence to support
a finding of disability and that the district court was without jurisdiction
to consider Muller's claims because the Eleventh Amendment rendered
the state defendants immune from suit under the ADA. The court denied
the motions for judgment as a matter of law, finding that Muller had
presented ample evidence that his ability to work was substantially
limited and thus not addressing whether Muller's ability to breathe
was similarly impaired. As to the Eleventh Amendment argument, the
court concluded that the ADA represented a valid exercise of Congress's
authority under § 5 of the Fourteenth Amendment and was consequently
an effective abrogation of states' Eleventh Amendment immunity.
We affirm the judgment to the extent
that it is supported by the retaliation claim, for the reasons that
DOCS hired Muller in June of 1988 to
serve as a correctional officer. After training and a probationary
period, Muller received permanent assignment to Midstate Correctional
Facility ("Midstate"), which is located in Marcy, New York, approximately
one hour east of Syracuse.
In February of 1989, Muller fell ill
with pneumonia. He continued to work for DOCS for the next two years,
although his respiratory problems did not cease. As a result of these
problems, he took a number of sick days. In November of 1991, Muller
visited a doctor to assess his continuing respiratory ailment. The
doctor diagnosed Muller with "severe bronchitis with a strong asthmatic
component" and recommended that he have "no exposure to tobacco smoke
while at work." Muller presented a note to this effect from his doctor
to the personnel section at Midstate.
Since 1990, Midstate has had a written
policy regarding smoking in the workplace. Under the policy, smoking
is permitted in the housing units but generally prohibited in other
areas of the facility. Under a "one-person- office" exception, a DOCS
employee assigned to a one-person office may smoke in that office.
Upon his return to work on November 22,
1991, Muller was assigned to a housing unit. He became sick and went
home. Muller returned to work the following day and was again assigned
to a housing unit. Soon thereafter, he submitted a memorandum to his
superior requesting a smoke-free environment and filed a formal complaint
with the county health department.
During this period of time, Muller attempted
a number of measures to limit his exposure to cigarette smoke. Through
a seniority-based bidding system, he bid on and received assignments
to the midnight shift to limit his exposure to cigarette smoke. At
one point, Muller received permission to open windows in a housing
unit but was later ordered to keep the windows closed after inmates
complained about the cold air. During 1992, though Muller continued
to work in the housing units, he was sick and absent from work only
occasionally. Nonetheless, he filed numerous grievances with DOCS
regarding the lack of healthy and safe working conditions at the facility.
There is evidence that DOCS was responsive to some of these grievances;
for example, the designation of the "chart office," which many officers
were required to pass through, was changed from smoking to non-smoking.
Although the smoking policy gradually grew more restrictive from its
inception in 1990, Muller observed a number of incidents throughout
his employment where inmates and employees violated the policy without
In August of 1993, Muller received a
list of smoke-free positions within Midstate. Despite his awareness
of available smoke-free posts, Muller bid for and received a "vacation
post," which entailed substituting for officers on vacation. Muller
bid for this position although he knew that there was a likelihood
that he would be stationed in an environment in which smoke was present.
Over this period of time, however, Muller made others aware of his
condition and requested that the administration place "No Smoking"
signs in designated non-smoking areas.
In December of 1993, while working in
one of the housing units, Muller reacted to secondhand smoke and went
to the emergency room at a local hospital after being advised to do
so by a Midstate nurse. Muller returned to work approximately one
week later with another note from a doctor stating that he could not
work in an environment where smoke was present. At this time, Muller's
doctor filed a report with the New York State Education Department,
Office of Vocational Educational Services for Individuals with Disabilities
("VESID"). On January 11, 1994, a VESID official wrote to the Superintendent
of the prison stating that Muller was disabled and requesting that
DOCS assign Muller to a smoke-free environment. Two weeks later, having
received no response, the same official again wrote to the Superintendent,
explaining that the Superintendent's failure to respond would be understood
as a refusal to offer an accommodation, and VESID would be forced
to continue with administrative procedures.
In February of 1994, DOCS responded by
sending Muller an "application request for reasonable accommodations."
After Muller submitted this application to DOCS, requesting a "smoke-free
environment," DOCS sent him for an employee health physical in Albany,
New York. The examining doctor stated that Muller could perform the
essential functions of a correctional officer and recommended that
Muller be provided with proper respiratory precautions from environmental
irritants such as tobacco smoke.
Several days later, Muller received a
telephone call from a DOCS official stating that he could return to
work and that he would be provided a mask to wear. Muller was given
a box of white paper masks to wear; these masks covered his mouth
and nose and were held in place by a flexible metal nose piece and
a rubber band that went around his neck. A statement on the box containing
the masks warned that the masks did not "protect against fumes, gas
or vapors." Consistent with its warning, the mask did not protect
Muller from secondhand smoke in the facility. He continued to get
sick while at work. Additionally, Muller felt humiliated by being
forced to wear the mask and observed a loss of "credibility" in front
of the inmates. Muller later forwarded a doctor's note to DOCS stating
that the paper mask was inappropriate for Muller's medical condition.
In March of 1994, DOCS provided a different
type of mask. The second mask was a rubber mask with detachment filters.
After being fitted with the mask, a DOCS employee administered a "fit
test" in which Muller was enclosed in a tent and a smoke irritant
was introduced to the tent. After the irritant was introduced, Muller
began to cough, felt dizzy and nauseous, and was taken to the emergency
room. When Muller returned to work five days later, he was fitted
with a larger mask of the same type. Though he was apprehensive about
participating in another "fit test," Muller once again entered the
tent and breathed the irritant through the mask. Again he got sick,
felt dizzy and nauseous, and was taken to the emergency room. After
the second "fit test," efforts to provide Muller with a respirator
From January of 1993 onward, if Muller
was assigned to a smoking post, he would report to the post and "last
as long as [he] could" before going to the nurse and seeking medical
help. There were a number of occasions when Muller would not accept
assignment to a post that was not smoke-free, at which point he would
be sent to the nurse and excused from work for the day. Throughout
the spring and summer of 1994, there were a number of occasions on
which Muller became ill and sought treatment at a hospital emergency
room. Muller was never formally disciplined for refusing to accept
a post during this time, and he was allowed to return to work if he
provided a note from his doctor stating that he needed to work in
a smoke- free environment.
In August of 1994, after two successful
"fit tests," Muller was issued two different masks. Neither of the
two masks fully met Muller's needs, however: one of the masks restricted
his breathing, rendered him unable to eat or drink while wearing it,
created difficulty communicating with inmates and co-workers, and
was described as "ridiculous" by other officers. The other mask did
nothing to shield Muller's eyes from irritation and made it difficult
for him to breathe. Moreover, the masks posed a safety risk because
the straps could have been used by inmates to choke Muller and made
emergency communication difficult.
From June of 1994 to February of 1995,
Muller was assigned to a non-smoking post outside of Midstate. During
this period, Muller was fully able to perform his duties and filed
no grievances. On July 6, 1994, Muller filed a complaint in the United
States District Court for the Northern District of New York. Muller
alleged discrimination and retaliation under the ADA, violations of
his civil rights under 42 U.S.C. § 1983, and pendent state law
claims for negligence and intentional infliction of emotional distress.
DOCS filed a motion to dismiss the complaint for failure to state
a claim in August of 1994.
In February of 1995, Muller was reassigned
to a post within Midstate and again experienced trouble breathing
and headaches while wearing the masks. In March of 1995 Muller visited
a doctor, who ordered that Muller could only wear a mask for four
hours per day, in two hour increments, with at least one hour between
the increments. On his doctor's orders, Muller did not return to work
from March of 1995 to May of 1995.
Although the facility's doctor, having
evaluated Muller in March of 1995, also concluded that Muller was
fully able to perform the duties of a correctional officer, Muller
was told by his supervisor that he could not return to work in May
of 1995. Muller did not return to work until November of 1995, at
which point he was assigned to a housing unit. Muller filed a grievance
concerning this assignment. From November of 1995 through April of
1996, although eventually assigned to posts ostensibly in non-smoking
areas, Muller frequently experienced respiratory problems due to disregard
of the smoking policy, the one-man office rule and recirculated air
within the facility. During this period, when Muller felt ill enough
to require leaving work, he would report to the nurse, go home, and
visit his doctor. He would return between one and ten days later with
a doctor's note stating that he could return to work only if stationed
in a smoke free environment.
In mid-March, 1996, Muller again had
to leave work because of difficulty breathing. His doctor kept him
out of work until April 1, 1996. On April 1, Muller bid for a "miscellaneous
post," which entailed duties that might be in smoking or non-smoking
areas. On April 3, Muller returned to work with a doctor's note explaining
his need to work in a smoke-free environment without a respirator.
At that time, Muller was told by a supervisor that he could not return
to work because the facility could not meet his conditions.
On April 16, 1996, Judge Scullin issued
a Decision and Order addressing DOCS' motion to dismiss Muller's complaint.
See Muller v. Costello, No. 94- CV-842, 1996 WL 191977 (N.D.N.Y.
May 20, 1996). Finding DOCS amenable to suit under the ADA and its
explicit waiver of states' Eleventh Amendment immunity, and finding
Muller's allegations of disability and lack of reasonable accommodations
sufficient to survive a motion to dismiss, the court denied the motion
to dismiss Muller's ADA claims. It dismissed Muller's claims against
DOCS and the individual defendants under § 1983, and dismissed
Muller's negligence claim against the individual defendants.
For several months beginning in April
of 1996, DOCS prohibited Muller from reporting to work at Midstate,
though he was technically still employed. He did not receive workers'
compensation or unemployment compensation, and he had exhausted his
sick and vacation leave. During this time, Muller requested permission
to seek 30 hours of outside employment per week, which was granted
to the extent of 20 hours per week. In November of 1996, Muller once
again presented a note from his doctor to his supervisor at Midstate.
The note stated that Muller could return to work if he worked in a
smoke- free environment and was not required to wear a respirator.
DOCS denied his request to return at that time.
In February of 1997, Muller presented
another doctor's note to DOCS. This note was written in an attempt
by Muller and his counsel to obtain a note that would satisfy DOCS'
concerns and allow Muller to return to work. As distinguished from
previous notes, the February doctor's note defined a "smoke-free work
environment" as a non-smoking area and did not mention Muller's use
of a respirator. Shortly thereafter, Muller received a telephone call
from the Deputy Superintendent for Administration telling him that
he could return to work immediately and that he should make arrangements
to be put on the schedule.
After February 21, 1997, when Muller
returned to work, he was assigned to various posts within Midstate,
some of which were in non-smoking areas and some of which were in
smoking areas. Muller was occasionally troubled by having to work
in smoking areas or by inmates or employees smoking in designated
non-smoking areas but did not need to leave work or miss any days
until March 31. On March 31, Muller called in sick due to smoke exposure
the day before while stationed in the infirmary, a non-smoking area.
He was absent from work until April 8. Muller returned to work on
April 8 to present a doctor's note and reported for duty on April
9. On April 9, a few minutes after reporting to duty at a housing
unit, Muller was confronted by a supervisor, who told him that his
doctor's note was "too vague" and sent him home. After leaving work,
Muller presented another note on April 9 and returned to work the
following day. For the next several days, Muller was assigned to non-smoking
areas or traded shifts with other officers and completed his workdays
On April 15, 1997, Muller was ordered
to report to a housing unit. As he had done before, Muller refused
to report, stating that working in a smoke- filled environment was
against medical orders. This time, however, rather than being ordered
to report to the nurse's office, he was suspended from service at
Midstate without pay. These events occurred after the resolution of
pre-trial motions but before trial; the district court allowed Muller
to include his suspension as part of his retaliation claim without
expressly amending his complaint.
Trial on Muller's claims began in September
of 1997. At trial, Muller presented his own testimony and the testimony
of seventeen witnesses, including seven Midstate employees, four doctors,
an expert in industrial hygiene, an employee of VESID, an employee
of the Oneida County Department of Health, a union representative,
and his wife. At the end of Muller's case, DOCS moved for judgment
as a matter of law, arguing that Muller had failed to prove that he
suffered from a "disability" within the meaning of the ADA. The individual
defendants also moved to dismiss Muller's ADA claims against them.
The court dismissed the claims against the individual defendants but
denied the motion for judgment as a matter of law against DOCS.
After DOCS' presentation, during which
it presented six witnesses, Judge Scullin charged the jury without
objection on discrimination and retaliation under the ADA, and they
retired to deliberate. After about five hours of deliberations, the
jury returned a verdict in favor of Muller on both counts. On the
discrimination claim, the jury specifically found that Muller suffered
from a "disability" under the ADA, that he was otherwise qualified,
that DOCS had not reasonably accommodated him, that such accommodation
would not have constituted an undue hardship, and that DOCS had intentionally
discriminated against him. As to the retaliation claim, the jury found
that Muller was engaged in a protected activity, that he was subjected
to an adverse employment action, and that there was a causal relationship
between the protected activity and the adverse employment action.
The jury awarded a total of $420,300, which it subdivided into $135,000
for Muller to receive additional education to find "different employment"
and $285,000 for "pain and suffering and mental anguish." Judge Scullin
polled the jury and ascertained that it intended the entire amount
to be a compensatory award.
Following the verdict, DOCS renewed its
motion for judgment as a matter of law, or, in the alternative, for
a new trial. DOCS also moved to cap the jury's verdict at $300,000
and to vacate or reduce the verdict as excessive. Muller cross-moved
for reinstatement to his position at Midstate, an injunction to allow
him a special opportunity to take the New York State correctional
officer sergeant's examination, and for back pay and lost benefits.
As it had in previous oral motions, in
its motion for judgment as a matter of law or a new trial, DOCS argued
that the record did not contain sufficient evidence for a jury reasonably
to find that Muller's asthma limited his major life activities of
breathing or working, and thus Muller was not "disabled" within the
meaning of the ADA. DOCS also argued that the court lacked jurisdiction
over the suit because the ADA did not apply to prisons and the state
was immune from Muller's suit under the Eleventh Amendment.
The court denied DOCS' motions for judgment
as a matter of law or a new trial. See Muller v. Costello,
997 F. Supp. 299 (N.D.N.Y. 1998). In its view, the evidence supported
a finding that Muller's asthma affected his ability to perform any
job in which he might come into contact with smoke or other asthma-inducing
chemicals. Because he found ample evidence that Muller's ability to
work was impaired, Judge Scullin did not address the evidence regarding
Muller's breathing impairment. The court then capped the damages award
at $300,000 in accordance with 42 U.S.C. § 1981a(b)(3)(D) but
otherwise declined to find the award excessive in light of the evidence
presented at trial.
The court found that DOCS was not immune
under the ADA and that it thus had subject matter jurisdiction over
the claims. Judge Scullin found that it was clear that Congress intended
to include state prison employees within the scope of the ADA. As
to the Eleventh Amendment issue, Judge Scullin determined that the
ADA was intended to abrogate states' immunity and was validly enacted
pursuant to section 5 of the Fourteenth Amendment. Addressing Muller's
motions, the court ordered Muller's reinstatement at Midstate "in
such position and to such duties that are . . . . in compliance with
the New York State Clean Indoor Air Act." The court also ordered back
pay but declined to mandate that Muller be provided a special opportunity
to take the sergeant's examination.
On April 7, 1998, the court entered judgment
in accordance with the jury's verdict and the post-trial disposition
of motions. This appeal followed.
On appeal, DOCS raises two contentions.
First, it argues that the district court did not have jurisdiction
to adjudicate the ADA claims because New York State, and DOCS as its
agency, were immune under the Eleventh Amendment. Second, it raises
a challenge to the sufficiency of Muller's proof that his major life
activities of "breathing" and "working" were impaired.
I. The ADA and the Eleventh Amendment
DOCS contends that, as a state agency,
it is immune from claims under the ADA because the ADA does not validly
abrogate states' immunity to suit in federal court under the Eleventh
Amendment. We review this issue de novo because it involves
the interpretation and constitutionality of a federal statute. See
United States v. Bianco, 998 F.2d 1112, 1120 (2d Cir. 1993).
In Seminole Tribe of Florida v. Florida,
517 U.S. 44, 55-58 (1996), the Supreme Court set forth a two-part
test for determining whether an act of Congress abrogates states'
Eleventh Amendment immunity: (i) Congress must unequivocally express
its intent to abrogate the immunity; and (ii) Congress must act pursuant
to a valid exercise of power. Accord Florida Prepaid Postsecondary
Educ. Expense Bd. v. College Sav. Bank, 119 S. Ct. 2199, 2205
(1999). DOCS does not dispute that the ADA satisfies the first element
under Seminole Tribe. Indeed, in light of 42 U.S.C. §
12202, which provides that a "State shall not be immune under the
[E]leventh [A]mendment to the Constitution of the United States from
an action in [a] Federal or State court of competent jurisdiction
for a violation of [the ADA]," any such contention would be difficult
to maintain. Rather, DOCS focuses on the second Seminole Tribe
element, arguing that Congress exceeded its powers under § 5
of the Fourteenth Amendment in enacting the ADA.
Recent Supreme Court precedent has clarified
that Congress may abrogate states' Eleventh Amendment immunity pursuant
to § 5 of the Fourteenth Amendment but not pursuant to any Article
I power such as the Commerce Clause. See Florida Prepaid Postsecondary
Educ. Expense Bd., 119 S. Ct. at 2205; Close v. State of New
York, 125 F.3d 31, 38 (2d Cir. 1997) ("After Seminole,
the only source of congressional abrogation stems from the Fourteenth
Section 5 of the Fourteenth Amendment
empowers Congress to enact "appropriate legislation" to "enforce"
its substantive provisions, including the Equal Protection Clause.
A statute is "appropriate legislation" to enforce the Equal Protection
clause if "it is plainly adapted to that end and [if] it is not prohibited
by but is consistent with the letter and spirit of the [C]onstitution."
Katzenbach v. Morgan, 384 U.S. 641, 651 (1966) (quotation omitted).
In City of Boerne v. Flores, 521 U.S. 507 (1997), the Court
explained that the authority to enforce the Fourteenth Amendment is
a broad power to remedy discrimination and prevent future discrimination,
see id. at 517-18, 536, and that Congress can prohibit activities
that are not themselves unconstitutional in furtherance of its remedial
scheme. See id. at 518, 529-30. It stressed, however, that
Congress's power under § 5 must be linked to constitutional injuries
and there must be a "congruence and proportionality" between the harms
to be prevented and the statutory remedy. Id. at 520. This
"proportionality" analysis has been further refined by Florida
Prepaid Postsecondary Education Expense Board: "for Congress to
invoke § 5, it must identify conduct transgressing the Fourteenth
Amendment's substantive provisions, and must tailor its legislative
scheme to remedying or preventing such conduct." 119 S. Ct. at 2207.
The evil that Congress sought to combat
by passing the ADA was irrational discrimination against persons with
disabilities. See generally 42 U.S.C. § 12101 (1994) (stating,
inter alia, "some 43,000,000 Americans have one or more physical
or mental disabilities[;] . . . historically, society has tended to
isolate and segregate individuals with disabilities, and . . . discrimination
against individuals with disabilities continue[s] to be a serious
and pervasive social problem; . . . discrimination . . . persists
in . . . employment"). Congress's finding in paragraph (a)(7) of §
12101 warrants particular emphasis: "individuals with disabilities
are a discrete and insular minority who have been faced with restrictions
and limitations, subjected to a history of purposeful unequal treatment,
and relegated to a position of political powerlessness in our society,
based on characteristics that are beyond the control of such individuals
and resulting from stereotypic assumptions not truly indicative of
the individual ability of such individuals to participate in, and
contribute to, society . . . ."
Congress spent hundreds of hours in hearings
determining the scope of the problem and the best manner to address
it. See Timothy M. Cook, The Americans with Disabilities Act: The
Move to Integration, 64 Temp. L. Rev. 393, 393-94 & nn. 1-4
(1991) (reciting deliberative process as including "eleven public
hearings [in] the House of Representatives . . . and three by the
Senate . . . [and] lengthy floor debates in the Senate and in the
House of Representatives" and collecting citations thereto); see
also Coolbaugh v. Louisiana, 136 F.3d 430, 436-37 & n.4 (5th
Cir.) (recounting extensive deliberative and fact gathering process),
cert. denied, 119 S. Ct. 58 (1998). Congress considered and
rejected the assumption that the "inferior economic and social status
of disabled people . . . [was] an inevitable consequence of the physical
and mental limitations imposed by disability," instead attributing
the inferior status to "discriminatory policies based on unfounded,
outmoded stereotypes and perceptions, and deeply imbedded prejudices
toward people with disabilities." H.R. Rep. No. 101-485(III), at 25
(1990), reprinted in 1990 U.S.C.C.A.N. 447-48 (House Judiciary Committee
Report). Congress intended that the ADA "provide a clear and comprehensive
national mandate for the elimination of discrimination against individuals
with disabilities," to provide "clear, strong, consistent, enforceable
standards" to combat such discrimination, and "to ensure that the
Federal Government plays a central role in" the enforcement of these
standards through the full use of its legislative powers under §
5 of the Fourteenth Amendment and the Commerce Clause. 42 U.S.C. §
It is an established principle of constitutional
law that the Equal Protection Clause protects against class- or group-
based invidious discrimination. The Equal Protection Clause prohibits
"arbitrary and irrational discrimination" even if no suspect class
or fundamental right is implicated. Bankers Life & Cas. Co.
v. Crenshaw, 486 U.S. 71, 83 (1988); see Romer v. Evans,
517 U.S. 620, 631-34 (1996); City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432, 450 (1985) (invalidating special use permit
requirement for placement of home for mentally disabled where apparent
rationale was "irrational prejudice"). Moreover, Congress may prohibit
conduct that is not itself unconstitutional as prophylaxis against
discrimination that may be subtle or difficult to detect. See City
of Boerne, 521 U.S. at 529-30. In light of Congress's findings
of the extent of discrimination against people with disabilities,
and with due regard to the deference owed to Congress in making such
judgments, we will not second-guess Congress's judgment that the ADA
was targeted to remedy and prevent irrational discrimination against
people with disabilities. See id. at 519-20 ("Congress must
have wide latitude in determining where [the line between measures
that remedy or prevent unconstitutional actions and measures that
make a substantive change in the governing law] lies").
Moreover, we hold, in agreement with
four of our sister circuits to have considered the issue,3
that the ADA is a proportionate and congruent response to the discrimination
that Congress sought to prohibit. See City of Boerne, 521 U.S.
at 520 ("There must be a congruence and proportionality between the
injury to be prevented or remedied and the means adopted to that end.").
The ADA targets particular practices -- in this case, discrimination
in employment -- and provides a remedy following the time-tested model
provided by the anti-employment discrimination provisions of Title
VII of the Civil Rights Act of 1964. See H.R. Rep. No. 101-485(III),
at 26 (1990), reprinted in 1990 U.S.C.C.A.N. 449 ("The [ADA] completes
the circle begun [by the Rehabilitation Act] with respect to persons
with disabilities by extending to them the same civil rights protections
provided to women and minorities beginning in 1964.") (House Judiciary
Committee Report); see also Greenway v. Buffalo Hilton Hotel,
143 F.3d 47, 51-52 (2d Cir. 1998) (applying McDonnell-Douglas burden
shifting analysis to ADA claim).
Despite the extensive hearings and findings
that support the ADA, defendants argue that its reasonable accommodation
provisions, see 42 U.S.C. § 12112(b)(5)(A), (B), are not proportional
or congruent to the discrimination that Congress identified. We disagree.
The ADA employment provisions define discrimination as, among other
things, "not making reasonable accommodations" for a disabled applicant
or employee if those accommodations would not "impose an undue hardship
on the operation of the business" of the employer. 42 U.S.C. §
12112(b)(5)(A); see also 42 U.S.C. § 12112(b)(5)(B) (addressing
the denial of employment opportunities to a qualified disabled individual
based on the necessity for making a reasonable accommodation). The
employer need not make an accommodation if the steps to be taken would
"requir[e] significant difficulty or expense," considered in the light
of several factors, including the cost of the accommodation and the
size and resources of the employer. 42 U.S.C. § 12111(10). As
the Fourth Circuit explained in Coolbaugh, Congress heard testimony
that businesses would benefit from the improved labor pool that would
result from making accommodations to the disabilities of potential
employees. See 136 F.3d at 437-38 (citing testimony). Therefore, Congress
enacted a proportional and congruent remedy in requiring employers
to make those accommodations that did not impose significant difficulty
It is this proportionality and congruence
that distinguishes the ADA from the Religious Freedom Restoration
Act ("RFRA"), 42 U.S.C. § 2000bb et seq., which
the Supreme Court held to be unconstitutional in City of Boerne.4
See 521 U.S. at 511. Congress enacted RFRA in response to Employment
Division v. Smith, 494 U.S. 872 (1990), in which the Supreme Court
held that the Free Exercise clause provided no exemption from neutral
laws of general applicability. Congress purportedly sought to restore
the test used by courts to adjudicate Free Exercise Clause cases prior
to Smith by prohibiting any state or federal action that "substantially
burdened" a person's exercise of religion unless the state action
"(1) [wa]s in furtherance of a compelling governmental interest; and
(2) [wa]s the least restrictive means of furthering that compelling
governmental interest." City of Boerne, 521 U.S. at 515-16
(quoting and discussing 42 U.S.C. § 2000bb-1). The Supreme Court
found that RFRA was "so out of proportion" to the problems identified
that it could not be viewed as preventative or remedial legislation
under § 5 of the Fourteenth Amendment. Id. at 532. Noting
the rigor of the test that Congress had prescribed, and more particularly,
the applicability of RFRA to all government action in every conceivable
field, the Court found that RFRA lacked "congruence" between the "means
used" and the "ends to be achieved." See id. at 530-32.
In contrast to RFRA's "[s]weeping coverage"
and "intrusion at every level of government," see City of Boerne,
521 U.S. at 532, the anti- discrimination provisions of the ADA provide
a narrowly tailored and reasonable response to the problem of discrimination
against people with disabilities. Accordingly, Congress's enactment
of the ADA was within its authority under § 5 of the Fourteenth
Amendment and its abrogation of states' Eleventh Amendment immunity
II. Sufficiency of Evidence
In the district court, Muller presented
theories that DOCS had discriminated against him based on his disability
and that it had retaliated against him for exercising his legal rights.
The jury's verdict, upon which Judge Scullin entered judgment, expressly
found that Muller was engaged in a protected activity, that he was
subjected to an adverse employment action, and that there was causation
between the protected activity and the adverse employment action.
Although DOCS challenges the sufficiency
of Muller's evidence to justify the jury's finding that he was disabled
in his major life activities of breathing and working, it does not
directly address Muller's retaliation claim. Rather, DOCS apparently
presumes that the retaliation finding cannot stand in the absence
of a finding that Muller was actually disabled within the meaning
of the ADA.
Our recent decision in Sarno v. Douglas
Elliman-Gibbons & Ives, Inc., No. 98-9295, 1999 WL 462669
(2d Cir. July 9, 1999), precludes this argument. In Sarno,
we ruled that it is "appropriate to apply the framework used in analyzing
retaliation claims under Title VII in analyzing a claim of retaliation
under the ADA." Id. at *3. A prima facie case of retaliation
under the ADA is made up of the following elements: "(1) the employee
was engaged in an activity protected by the ADA, (2) the employer
was aware of that activity, (3) an employment action adverse to the
plaintiff occurred, and (4) there existed a causal connection between
the protected activity and the adverse employment action." Sarno,
1999 WL 462669, at *3. With respect to the first element of a retaliation
claim, participation in a protected activity, we held that a "plaintiff
need not establish that the conduct he opposed was actually a violation
of the statute so long as he can establish that he possessed a good
faith, reasonable belief that the underlying challenged actions of
the employer violated that law." Id. (quotations and alteration
DOCS does not contest the good faith
or reasonableness of Muller's belief that he was disabled, nor does
it dispute the reasonableness of Muller's belief he was exercising
his legal rights against what he perceived to be unlawful discrimination.
Indeed, at oral argument and in post-trial submissions to this Court,
DOCS conceded that the jury's retaliation finding should be affirmed
on appeal. We therefore affirm the judgment insofar as it is based
on the jury's finding of retaliation against Muller.
As to the discrimination theories, we
review the denial of a motion for judgment as a matter of law de novo.
See Valley Juice Ltd. v. Evian Waters of France, Inc., 87 F.3d
604, 613 (2d Cir. 1996). Judgment as a matter of law is proper
when there is such a complete
absence of evidence supporting the verdict that the jury's findings
could only have been the result of sheer surmise and conjecture, or
[where there is] such an overwhelming amount of evidence in favor
of the movant that reasonable and fair minded [persons] could not
arrive at a verdict against [the movant]. We must view "the evidence
in the light most favorable to [the non-movant], and [give him] the
benefit of all reasonable inferences from the evidence that the jury
might have drawn in his favor."
Padilla v. Metro-North Commuter R.R.,
92 F.3d 117, 122 (2d Cir. 1996) (quoting Logan v. Bennington College
Corp., 72 F.3d 1017, 1022 (2d Cir. 1995) (citations omitted and
alterations in original).
The ADA defines a "disability" as
(A) a physical or mental impairment
that substantially limits one or more of the major life activities
of such individual;
(B) a record of such an impairment;
(C) being regarded as having such an impairment.
42 U.S.C. § 12102(2). The determination
of whether an individual is disabled -- that is, whether his impairment
substantially limits a major life activity -- is "made with reference
to measures that mitigate the individual's impairment." Sutton
v. United Air Lines, Inc., 119 S. Ct. 2139, 2143 (1999). Major
life activities include, for purposes relevant to this appeal, "breathing
[and] working." 29 C.F.R. § 1630.2(i); see Colwell v. Suffolk
County Police Dep't, 158 F.3d 635, 642 (2d Cir. 1998) (listing,
under Rehabilitation Act, major life activities including breathing
and working). As noted above, in addressing DOCS' post-trial motions,
the district court found that there was sufficient evidence to support
a jury finding that Muller was impaired in his major life activity
of working. The court did not evaluate the evidence presented in connection
with the claim of breathing impairment.
A. Sufficiency of evidence of working
Under the law of this Circuit, the EEOC's
regulations are entitled to "great deference" in interpreting the
ADA.5 Reeves v. Johnson Controls World Servs., 140
F.3d 144, 150 n.3 (2d Cir. 1998). The EEOC's regulations explain that,
in evaluating a claimed impairment to the major life activity of working,
"[t]he term substantially limits means significantly restricted
in the ability to perform either a class of jobs or a broad range
of jobs in various classes as compared to the average person having
comparable training, skills and abilities." 29 C.F.R. § 1630.2(j)(3)(i)
(1997). If the plaintiff establishes only "the inability to perform
a single, particular job," he has failed to establish a substantial
impairment to his major life activity of working. Id. In evaluating
whether an individual's major life activity of working is substantially
impaired, we consider the following factors:
(A) The geographical area to
which the individual has reasonable access;
Thus, the question for our review
is whether the evidence presented, liberally construed, supports the
finding that Muller was foreclosed from the class of jobs including
correctional officer. "An impairment that disqualifies a person from
only a narrow range of jobs is not considered a substantially limiting
one." Heilweil v. Mount Sinai Hospital, 32 F.3d 718, 723 (2d
Cir. 1994). It is undisputed that Muller could not work as a corrections
officer at Midstate under prevailing conditions. Muller seeks to define
the applicable class of jobs as "correctional officer" and further argues
that his disability prevents him from working as a correctional officer
in any facility. Although the evidence supports this conclusion, precedent
indicates that Muller's class of jobs cannot be defined so narrowly.
The position of correctional officer
constitutes a single, particular job, and a limitation on a single,
particular job cannot constitute a substantial limitation of the major
life activity of working. See Wernick v. Federal Reserve Bank of
New York, 91 F.3d 379, 383-84 (2d Cir. 1996). By way of comparison,
courts have held that (i) a disability that precludes piloting an
airplane does not impair working because the relevant class of jobs
includes ground trainer, flight instructor, and a management or administrative
employee of an airline, see Witter v. Delta Air Lines, Inc.,
138 F.3d 1366, 1370-71 (11th Cir. 1998); (ii) an inability to work
as a police officer is insufficient to establish impairment of working,
Miller v. City of Springfield, 146 F.3d 612, 615 (8th Cir.
1998); see Daley v. Koch, 892 F.2d 212, 215 (2d Cir. 1989)
(reaching same result as Miller under Rehabilitation Act);
and (iii) an inability to work as a firefighter does not suffice because
firefighting does not constitute a "class of jobs." Bridges v.
City of Bossier, 92 F.3d 329, 334-36 (5th Cir. 1996); see Welsh
v. City of Tulsa, 977 F.2d 1415, 1416-20 (10th Cir. 1992) (reaching
same result as Bridges under Rehabilitation Act).
Muller argues that his working ability
is limited because he is unable to work in any environment where there
will be cigarette smoke or environmental irritants. DOCS, in reply,
notes that Muller has been employed as a salesman, bank employee,
and substitute teacher during the pendency of this litigation. DOCS
also points out that Muller would be qualified to work as a security
guard in an office building or as a guard at the smoke-free county
jail. Either of these two jobs would fit into a properly defined class
of jobs that includes correctional officer because each seems to utilize
"similar training, knowledge, skills or abilities" as the position
of correctional officer. See 29 C.F.R. § 1630.2(j)(3)(ii)(B).
Muller presented no evidence that he was precluded from jobs other
than correctional officer in his geographic area. His failure to do
so, and his insistence that his class of jobs is limited to correctional
officer, compels our holding that there was insufficient evidence
before the jury for it to have concluded that Muller was substantially
limited in his major life activity of working.
B. Sufficiency of evidence of breathing
DOCS argues that Muller cannot be regarded
as being impaired in his breathing because the evidence established
that he was active outside of work at Midstate, participated in many
sports and worked as a member of the military reserves. In addition
to the facts recounted above, Muller's evidence regarding his breathing
impairment included the following: The jury was presented with testimony
of a medical expert and two doctors who had treated Muller's asthma,
all of whom testified that Muller's asthma could be triggered by any
number of environmental irritants. Muller's medical expert testified
that Muller's lung function diminished 45% when a control solution
of saline was introduced, which indicates that "any irritants could
be expected to have very significant decreases in this person's lung
capacity." Moreover, this expert stated that the test results "were
consistent with the significant component of underlying reactive airways
disease with a clearly reversible component, and supports a diagnosis
of environmental sensitivities that the patient had demonstrated by
history to cigarette exposure in the workplace." Muller's evidence
included only one encounter with an irritant that triggered an asthmatic
episode outside of work. Muller testified that, while on military
reserve duty, he had a reaction to a petroleum-based smoke used by
the military. Other than that, Muller testified that he felt "pretty
good" outside of work when he used his inhalers.
We conclude that Muller's proof of his
breathing impairment was deficient. As the Supreme Court clarified
in Sutton, we must evaluate Muller's disability with reference
to the applicable corrective measures, in this case, his inhalers
and other medications. See 119 S. Ct. at 2143. Thus, the jury was
precluded from speculating about how severe Muller's asthma would
be but for his medications. Other than Muller's difficulties while
at work at Midstate, what we are left with is testimony that Muller
was physically active outside of work, that he could potentially have
severe reactions to environmental irritants, and that, on one occasion,
he did have such a reaction while working at a military base.
We find that this case is similar to
Heilweil, in which we found that the plaintiff's "ability to breathe
restricted her only in a limited way, and did not bar her from exercising."
32 F.3d at 723. Despite Heilweil's respiratory problems while working
at her place of employment and her asthma, this Court concluded that
Heilweil was not substantially limited in her ability to breathe.
See id. Although we recognize that Muller presented evidence
that his asthma was allergen-induced, for which exercise is a prescribed
treatment, we believe that his substantial physical activity without
encountering debilitating allergens cuts against his claim of disability.
Simply put, there is not enough evidence of off-the-job breathing
problems to find a substantial limitation of that life activity.
Nor is Muller's expert testimony alone
enough to establish a substantial impairment. Muller's expert presented
evidence of the nature of the condition and opined that irritants
might be expected to produce an adverse effect on Muller's
breathing. Without actual evidence of difficulty outside of work,
however, we will not speculate on the severity of a disability or
the types of allergens that Muller might encounter on a daily basis.
* * * *
At oral argument, we requested that the
parties brief the question of whether the jury's verdict should stand
in its entirety if we were to affirm the judgment based solely on
the retaliation finding. Having reviewed these submissions, we believe
that the jury's full award, as well as the district court's equitable
awards of reinstatement and back pay, may be justified solely on the
retaliation finding. As to the former, DOCS argues that the jury's
retaliation finding could have only been based on Muller's discharge
because Muller's retaliation claim and the court's jury instructions
were limited to a retaliatory discharge claim. Accordingly, it argues,
we must remand for recalculation of damages. This contention is meritless:
the court instructed the jury on several occasions that Muller's retaliation
claim was not limited to his discharge but could include any adverse
actions throughout his employment. DOCS did not request that the jury
apportion its verdict between the retaliation claim and the discrimination
claims, and it is therefore appropriate to find that the jury intended
Muller to receive the full amount in compensation for his injury,
regardless of the legal provision violated.
With regard to the equitable relief,
reinstatement and back pay may be ordered to remedy unlawful retaliation.
See 42 U.S.C. §§ 12203(c), 12117(a). There is nothing in
the district court's discussion to indicate that it was basing its
equitable relief solely on the finding of discrimination. While there
may be some question regarding the authority of the district court
to include in its injunction an order requiring DOCS to provide a
smoke free environment as relief responsive to Muller's retaliation
claim, DOCS is under an independent state statutory obligation to
"provide nonsmoking employees with a smoke-free work area." N.Y. Pub.
Health Law § 1399-0(6)(a) (McKinney 1990). Moreover, we take
notice of the new policy of DOCS designating non-residential areas
of New York State prisons as smoke free on January 1, 2000 and the
remainder of the interior of prison facilities smoke free after January
1, 2001. See "Smoking to Be Banned In Prisons by 2001," N.Y. Times,
July 21, 1999, at B6. Because the district court's order requiring
Muller's reinstatement required no more than DOCS' compliance with
state law and its own incipient policy, we see no need to disturb
this aspect of the injunction.
In accordance with the foregoing, the
judgment of the district court, including all relief granted therein,
is affirmed as supported by the retaliation finding.
1. DOCS does not dispute that Congress
intended to enact the ADA in furtherance of the Equal Protection Clause.
2. Because the issues raised in this
case implicate only the employment discrimination provisions of the
ADA, we have no occasion to consider the constitutionality of its
public services or public accommodations provisions. See generally
42 U.S.C. §§ 12131-12165 (public services), 12181-12189
3. The four circuits that have unequivocally
found various provisions of the ADA, or the ADA in its entirety, to
be constitutional are the Eleventh, the Fifth, the Ninth, and the
Seventh. See Kimel v. Florida Bd. of Regents, 139 F.3d 1426,
1433, 1442 (11th Cir. 1998), cert. granted, 119 S. Ct. 901
and cert. granted sub nom United States v. Florida Bd. of Regents,
119 S. Ct. 902 (1999); Coolbaugh, 136 F.3d at 437 (5th Cir.
1998); Clark v. California, 123 F.3d 1267, 1270-71 (9th Cir.
1997), cert. denied, 118 S. Ct. 2340 (1988); Crawford v.
Indiana Dep't of Corrections, 115 F.3d 481, 487 (7th Cir. 1997).
In Alsbrook v. City of Maumelle, No. 97-1825, 1999 WL 521709
(8th Cir. July 23, 1999) (en banc), the Eight Circuit,
sitting en banc, found the enactment of Title II of the ADA,
42 U.S.C. §§ 12131-12165, which prohibits discrimination
in public services, outside of Congress's power under § 5 of
the Fourteenth Amendment. See id. at *7. The en banc Eighth
Circuit had previously affirmed by an evenly divided vote a district
court's finding that the employment discrimination provisions contained
in Title I of the ADA were a constitutional exercise of Congress's
§ 5 power. See Autio v. AFSCME, 157 F.3d 1141 (8th
Cir. 1998) (en banc) (affirmingAutio v. Minnesota, 968
F. Supp. 1366, 1371-72 (D. Minn. 1997). The Fourth Circuit, in Brown
v. North Carolina Div. of Motor Vehicles, 166 F.3d 698, 708 (4th
Cir. 1999), found the state immune from a regulation promulgated by
the Department of Justice pursuant to the ADA prohibiting public entities
from charging a fee to cover costs of accessibility programs. Though
Brown's holding is relatively narrow, its reasoning seemingly
would have invalidated any of the ADA's substantive provisions. Subsequently,
in Amos v. Maryland Dep't of Pub. Safety & Correctional Servs.,
No. 96-7091, 1999 WL 454509, at *9 (4th Cir. June 24, 1999), a different
panel of the Fourth Circuit found the enactment of the ADA within
the § 5 power of Congress. The majority found that Brown did
not control because it addressed only the constitutional authority
of a regulation promulgated under the ADA and not the ADA itself.
See id. at *7 n.8. In dissent, Judge Williams expressed his
belief that Brown compelled a result opposite to that reached
by the majority and endorsed the reasoning of the Brown panel.
See id. at *14-15 (Williams, J., dissenting).
4. Congress's findings in the ADA
are also far more extensive than those made in support of RFRA. See
City of Boerne, 521 U.S. at 530 (finding that the legislative
record that Congress had compiled in support of RFRA was bereft of
any evidence of "modern instances of generally applicable laws passed
because of religious bigotry").
5. The Supreme Court has recently drawn
into question the degree of deference due to the EEOC's interpretations
of the term "disability," noting that Congress did not delegate to
it the authority to interpret this term. See Sutton, 119 S.
Ct. at 2145 ("no agency has been delegated authority to interpret
the term 'disability'"). Nonetheless, until a more definite pronouncement
is forthcoming, it remains the law of this Circuit that we will give
weight to the EEOC's interpretations.