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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 follow.


87 F.3d 298 (1999)

Keith E. MULLER, Plaintiff-Appellee, v. Joseph J. COSTELLO, Individually and as Superintendent of Midstate Correctional Facility; Susan A. Connell, Individually and as Deputy Superintendent of Administration at Midstate Correctional Facility; John Doe, Individually and as employee of the Midstate Correctional Facility; Joseph Sgt. Ward, Sergeant, Individually and as an agent of the Midstate Correctional Facility and Thomas Krasko, Individually and as an employee of Midstate Correctional Facility, Defendants, The State of New York; New York State Department of Correctional Service, Defendants-Appellants, United States of America, Intervenor.

Docket Nos. 98-7491, 98-7729

United States Court of Appeals, Second Circuit.

Argued April 27, 1999.

Decided August 11, 1999.

New York Law School location: File #2705, Box #139