Edward FLIGHT, Plaintiff-Appellant,
v.
Lawrence C. GLOECKLER, in his official capacity as Deputy
Commissioner for Vocational and Educational Services for
Individuals with Disabilities; Thomas Sobol, in his
official capacity as Commissioner of the New York State
Education Department; Office of Vocational and Educational
Services For Individuals With Disabilities of the New York
State Education Department; New York State Education
Department, Defendants-Appellees.
No. 316, Docket 95-7308.
United States Court of Appeals,
Second Circuit.
Argued Oct. 17, 1995.
Decided Oct. 19, 1995.
Williаm F. Mastroleo, Buffalo, New York (Neighborhood Legal Services, Inc., Buffalo, New York, of counsel), for Plaintiff-Appellant.
Patrick Barnett-Mulligan, Assistant Attorney General of the State of New York, Albany, New York (Dennis C. Vacco, Attorney General, Peter H. Schiff, Deputy Solicitor Gеneral, Peter G. Crary, Assistant Attorney General, Albany, New York, of counsel), for Defendants-Appellees.
Before: LUMBARD, CARDAMONE, and MAHONEY, Circuit Judges.
PER CURIAM:
Plaintiff-appellant Edward Flight appeals from a judgment entered March 24, 1995 in the United States District Court for the Northern District of New York, Frederick J. Scullin, Jr., Judge, that dismissed Flight's claims that dеfendants-appellees had unlawfully discriminated against him in the provision of payment for modifications to a vehicle in violation of Section 504 of the Rehabilitation Act of 1973, as amended (the "Rehabilitation Act"), 29 U.S.C. Sec. 794,1 and Section 202 of the Americans with Disabilities Aсt of 1990, as amended (the "Disabilities Act"), 42 U.S.C. Sec. 12132.2
Flight is afflicted with multiple sclerosis, a degenerative condition that attacks the central nervous system. He is restricted to a wheelchair, and has limited use of his upper body. Flight has been a client of New York State's Office of Vocational and Educational Services for Individuals with Disabilities ("VESID") since 1984. VESID issued Flight an individualized written rehabilitation plan ("IWRP") in 1991, which currently ascribеs to Flight an employment goal of being a homemaker.
In 1992, Flight decided to purchase a van, and petitioned VESID for financial assistаnce in order to make modifications necessary for him to use the van. VESID's policy statement Sec. 1350.00, Vehicle Modifications and Adaptive Equipment (Sept.1985), determines the amount of money that VESID will provide for the modification of a vehicle for a client who "is pursuing a vocational objective for which the equipment or modification is necessary, as shown on the [client's] IWRP." Section 1350.00 аllows VESID to spend up to $10,500 in order to modify a van "if the client will function as driver of the vehicle," but only up to $4,000 "if the client will only use the vehicle as a passenger."
In response to Flight's request, VESID tested Flight's driving abilities and determined that he was too severely disabled to drive a motоr vehicle. VESID also determined that a van was not necessary to enable Flight to function as a homemaker, but nevertheless offered to provide $4,000 towards the cost of modifying Flight's van. Flight then attempted, with the support of his VESID counselor, to obtain a waiver of the $4,000 limitation, and a hearing was ultimately held regarding the requested waiver, but VESID persisted in its denial. Flight then purchased the van, and had it modified at a сost of $10,400. VESID contributed $4,000 towards this expense.
Flight brought suit in the district court seeking declaratory and injunctive relief, as well as monetary damаges. Flight alleged that VESID's policies regarding the distribution of money for the modification of vehicles violates Sec. 504 of the Rehabilitаtion Act, see supra note 1, Sec. 202 of the Disabilities Act, see supra note 2, and (derivatively) 42 U.S.C. Sec. 1983 by denying to Flight "under color of any ... rеgulation ... of any State ... rights ... secured by the ... laws" of the United States. Id. The district court denied summary judgment to Flight and granted summary judgment to defendants-appellees. Flight v. Gloeckler,
In order to establish a violation of Sec. 504, a plaintiff must show (1) that he has a disability for purposes of thе Rehabilitation Act, (2) that he is "otherwise qualified" for the benefit that has been denied, (3) that he has been "denied the benefits" solely by reason of his disability, and (4) that the benefit is part of a "program or activity receiving Federal financial assistance." Id., supra note 1; Dоe v. New York Univ.,
We have held that "[t]he [Rehabilitation] Act does not require all handicapped persons to be provided with identiсal benefits." P.C. v. McLaughlin,
In this case, Flight is not being denied a benefit which is made available to nonhandicapped individuals and for which Flight is "otherwise qualified." Rather, VESID's subsidies for vehicle modifications are made available only to handiсapped individuals. See Flight,
Furthermore, Flight was not denied the additional subsidy "solely by reason of ... his disability" within the meaning of Sec. 504. The denial of the increased allowance was not based upon Flight's classification as a victim of multiple sclerosis, but rather upon the type of modification that he requested. See Marshall v. Switzer,
Flight contends that his disability is not multiple sclerosis, but rather an inability to drive, but this argument is unрersuasive. A disability is a "physical or mental impairment," 29 U.S.C. Sec. 706(8)(A), (B), i.e., "any physiological disorder or condition ... affecting" the neurological system. 34 C.F.R. Sec. 104.3(j)(2)(i)(A) (emphasis added). Clearly, an inability to drive is not a physiological condition, but rather a result of a physiological condition, viz., Flight's neurological disorder.
Flight also argues that VESID's policy violates Sec. 202 of the Disabilities Act. See supra note 2. Thе regulations implementing this statute provide:
A public entity, in providing any aid, benefit, or service, may not, directly or through contractual licensing, or other arrangements, on the basis of disability--
....
(iv) Provide different or separate aids, benefits, or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others unless such action is necessary to provide qualified individuals with disabilities with aids, benefits, or services that are as effective as those provided to others.
28 C.F.R. Sec. 35.130(b)(1).
The district court correctly noted that this provision is inapplicable because the distinction in the present case is not based upon Flight's disability, multiple sclerosis, but rather upon his inability to drivе. See Flight,
We accordingly affirm the judgment of the district court.
Notes
Section 504 provides in pertinent part:
(a) No otherwise qualified individual with a disability ... shall, solely by reаson of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any рrogram or activity receiving Federal financial assistance....
Section 202 provides in pertinent part:
[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.