Katrina Parker v. New Jersey Motor Vehicle Commission

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 23-1520

____________

KATRINA PARKER,

Appellant

v.

NEW JERSEY MOTOR VEHICLE COMMISSION;

B. SUE FULTON, in her official capacity as the

Chief Administrator of the New Jersey Motor Vehicle

Commission

____________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 3:19-cv-08926)

District Judge: Honorable Zahid N. Quraishi

____________

Argued: January 18, 2024

Before: HARDIMAN, MATEY, and PHIPPS, Circuit Judges

(Filed: October 24, 2025)

____________

David J. Hommel, Jr.

William Juhn

Andrew Rozynski [ARGUED]

EISENBERG & BAUM

24 Union Square E

4th Floor

New York, NY 10003

Counsel for Appellant

Sookie Bae-Park

Brad Reiter [ARGUED]

OFFICE OF ATTORNEY GENERAL OF NEW JERSEY

DIVISION OF LAW

25 Market Street

Hughes Justice Complex

Trenton, NJ 08625

Counsel for Appellees

_______________________

OPINION OF THE COURT

_______________________

PHIPPS, Circuit Judge.

A hearing-impaired woman received endorsements for her

New Jersey commercial driver’s license that permitted her to

drive a campus shuttle bus at a state university. But after she

did so for about eight months, the state administrative agency

that issued the endorsements recognized that she could not pass

the requisite hearing tests and revoked the endorsements

without a pre-revocation hearing. Instead of challenging the

removal of those endorsements in state court, the woman

initiated this lawsuit in the District Court against the state

agency and its chief administrator under three anti-

2

discrimination statutes: Title II of the Americans with

Disabilities Act, § 504 of the Rehabilitation Act, and New

Jersey’s Law Against Discrimination. She also brought a civil

rights claim under 42 U.S.C. § 1983 for a procedural due

process violation because her endorsements were revoked

without an individualized assessment of her ability to drive a

shuttle bus. At summary judgment, the District Court rejected

all of her claims. She now appeals, and on de novo review, we

will affirm that judgment for the reasons below.

I. BACKGROUND

A. Katrina Parker Obtains a Commercial

Driver’s License.

Complications from a bout with chicken pox at age three

left Katrina Parker with a lifelong hearing impairment. In

2016, when she was 30 years old and living in New Jersey,

Parker, who had a basic New Jersey driver’s license, wanted to

drive commercial motor vehicles. 1 To do that, she needed a

commercial driver’s license, or ‘CDL,’ issued by the State of

New Jersey. 2 There are additional requirements for a CDL,

and New Jersey, as part of its participation in a federal grant

1

See N.J. Stat. § 39:3-10.11 (2010) (defining the term

‘commercial motor vehicle’); see also 49 U.S.C. § 31132(1)

(2012) (same).

2

See N.J. Stat. § 39:3-10.18(a)(2) (“[A] person shall not

operate a commercial motor vehicle unless the person has been

issued and is in possession of a valid commercial driver license

and applicable endorsements for the class and type of vehicle

being operated.”); see also 49 U.S.C. § 31311(a)(12)(A)

(2012) (providing that, subject to exceptions, a “State may

issue a commercial driver’s license only to an individual who

operates or will operate a commercial motor vehicle and is

domiciled in the State”).

3

program for improving commercial motor vehicle safety, 3

enacted legislation “designed to substantially conform” its

laws to the federal standards for driving commercial motor

vehicles. N.J. Stat. § 39:3-10.10. 4 One of those federal

standards that New Jersey adopted through regulation, see N.J.

Admin. Code § 13:60-2.1(b), 5 was the driver’s ability to hear

at a certain minimum level, specifically the ability to:

3

See 49 U.S.C. § 31102 (2012) (establishing and providing

funding for the Motor Carrier Safety Assistance Program).

4

As a condition on participation in the Motor Carrier Safety

Assistance Program, a state must have regulations and

standards that are “compatible” with the Federal Motor Carrier

Safety Regulations, or ‘FMCSRs.’ 49 U.S.C. § 31102(a)

(2012). In 2016, the term ‘compatible’ for purposes of the

program meant “State laws applicable to intrastate commerce

are either identical to, or have the same effect as, the FMCSRs

or fall within the established limited variances under

§ 350.341.” 49 C.F.R. § 350.105 (2016). After a revision

effective July 24, 2020, see Motor Carrier Safety Assistance

Program, 85 Fed. Reg. 37,785, 37,785 (June 24, 2020), the

definition of the term ‘compatible’ for purposes of the grant

program was changed to mean “State laws, regulations,

standards, and orders on [Commercial Motor Vehicle] safety

that: (1) As applicable to interstate commerce not involving the

movement of hazardous materials: (i) Are identical to or have

the same effect as the FMCSRs; or (ii) If in addition to or more

stringent than the FMCSRs, have a safety benefit, do not

unreasonably frustrate the Federal goal of uniformity, and do

not cause an unreasonable burden on interstate commerce

when enforced.” 49 C.F.R. § 350.105 (2020).

5

See generally N.J. Stat. § 39:3-10.12(a) (authorizing the

Chief Administrator to “adopt and administer a classified

licensing system and a program for testing and ensuring the

fitness of persons to operate commercial motor vehicles in

accordance with the minimum federal standards established

4

perceive[] a forced whispered voice in the better

ear at not less than 5 feet with or without the use

of a hearing aid or, if tested by use of an

audiometric device, does not have an average

hearing loss in the better ear greater than

40 decibels at 500 Hz, 1,000 Hz, and 2,000 Hz

with or without a hearing aid when the

audiometric device is calibrated to American

National Standard (formerly ASA Standard)

Z24.5—1951[.]

49 C.F.R. § 391.41(b)(11).

Parker could not satisfy that requirement. Even so, the

Federal Motor Carrier Safety Administration, or ‘FMCSA,’ is

authorized to issue variances for the federal physical and

medical standards. See 49 U.S.C. § 31315(a)(1) (allowing for

a waiver for periods of time not to exceed three months), (b)(2)

(allowing for an exemption for periods of time not to exceed

five years). Parker applied for a variance with the FMCSA, 6

and, after a thirty-day period for public notice and comment on

her application, 7 the FMCSA granted her a two-year

under the federal ‘Commercial Motor Vehicle Safety Act of

1986’ . . . and the regulations promulgated pursuant to that

law”); N.J. Admin. Code § 13:60-1.3(g) (using the federal

standards for both interstate and intrastate CDLs).

6

See Qualification of Drivers; Application for Exemptions;

Hearing, 81 Fed. Reg. 50594, 50595 (Aug. 1, 2016).

7

See Qualification of Drivers; Application for Exemptions;

Hearing, 81 Fed. Reg. at 50594; see also 49 U.S.C.

§ 31315(b)(6) (setting the notice and comment procedures for

exemption requests).

5

exemption from the hearing requirement to begin on

September 6, 2016. 8

That exemption was also subject to limitations. It was

“valid for operation of a [commercial motor vehicle] only

within the United States for the purpose of interstate

commerce.” Exemption No. H00471 (JA127). And it

“prohibited” Parker “from operating a motorcoach or bus with

passengers in interstate commerce.” Id.

With that exemption and her satisfaction of the other

requirements for a CDL, the New Jersey Motor Vehicle

Commission, or ‘NJMVC,’ issued Parker an interstate CDL on

June 6, 2017. Parker later began driving commercial motor

vehicles for FedEx.

B. Parker Receives Endorsements for Driving

Commercial Motor Vehicles with Passengers

and Does So for Eight Months.

Parker was also interested in driving commercial motor

vehicles with passengers. But to do so, New Jersey requires

not only a CDL but also at least one endorsement 9 – a P

endorsement. 10 An S endorsement is also needed to drive

8

See Qualification of Drivers; Exemption Applications;

Hearing, 83 Fed. Reg. 6702, 6703–04 (Feb. 14, 2018).

9

See generally N.J. Stat. § 39:3-10.11 (defining ‘endorsement’

to mean “an authorization to a commercial driver license

required to permit the holder of the license to operate certain

types of commercial motor vehicles”); N.J. Admin. Code

§ 13:21-23.6(b) (listing five types of vehicles – double/triple

trailers, passenger vehicles, tank vehicles, vehicles

transporting certain types of hazardous materials, and school

buses – that require endorsements to drive).

10

See N.J. Stat. §§ 39:3-10.1, 39.3-10.18.

6

school buses. 11 There are supplemental qualifications and

requirements that CDL holders have to meet to obtain those

endorsements. 12 For instance, there are additional knowledge

and skills tests for both endorsements. 13 And, under New

Jersey law, an applicant for those endorsements must satisfy

the federal medical and physical-fitness standards for a CDL –

regardless of whether the applicant has received a variance

from the FMCSA. 14 Unlike federal law, New Jersey does not

allow applicants to seek individual exceptions to those medical

or physical requirements. Rather, New Jersey permits waivers

only to “a class of persons or class of commercial motor

vehicles,” but only if “such waiver is not contrary to the public

interest and does not diminish the safe operation of commercial

motor vehicles.” 15 New Jersey did not have a waiver that

11

See N.J. Stat. §§ 39:3-10.12, 39:3-10.18(a)(2); see also id.

§ 39:1-1 (defining ‘school bus’); N.J. Admin. Code § 13:21-

23.15 (2005); id. § 13:21-14.3 (2012).

12

See also N.J. Admin. Code § 13:21-14.5(a) (requiring that

applicants seeking a P endorsement also be at least 21 years

old, have three years driving experience, possess a New Jersey

driver’s license, be physically fit and of good character, and

submit to fingerprinting); id. § 13:21-14.3 (requiring a P

endorsement for an S endorsement).

13

See N.J. Stat. § 39:3-10.1.

14

See N.J. Stat. § 39:3-10.1 (requiring that applicants have

good “physical fitness in the form of a medical examination”);

N.J. Admin. Code § 13:21-14.5(c)(11) (requiring that

applicants satisfy the physical and medical requirements in

49 C.F.R. § 391.41, as amended and supplemented to receive

a P endorsement); id. § 13:21-14.3 (extending that same

requirement to drivers of school buses).

15

N.J. Stat. § 39:3-10.29.

7

would enable persons with hearing impairments to drive

commercial motor vehicles with passengers. 16

Despite her inability to meet the federal hearing standard,

as is required for the New Jersey P and S endorsements, in

October 2017, Parker applied for and received both

endorsements.

With those endorsements, Parker began working for First

Transit of North Brunswick in January 2018 as a shuttle bus

driver for students and faculty of Rutgers University. In July

2018, while she was employed with First Transit, the NJMVC

received an inquiry about her authorization to drive

commercial motor vehicles with passengers. After examining

the issue and coordinating with the FMCSA, the NJMVC

notified Parker in a letter dated August 9, 2018, that her federal

exemption allowed her to have a CDL, but not a P or an S

endorsement:

The FMCSA variance, which exempts you from

the hearing requirements specified in 49 CFR

391.41(b) (11), specifically authorizes you to

operate a commercial motor vehicle (CMV) in

interstate commerce and prohibits you from

operating a motor coach or bus with passengers

in interstate commerce. In addition, the FMCSA

variance does not apply to the operation of

school buses; therefore, you are prohibited from

16

During the pendency of this litigation, the NJMVC

promulgated a new regulation specifying the limited

applicability of federal medical variances: “A waiver from the

physical qualifications of 49 CFR 391.41, granted by the

Federal Motor Carrier Safety Administration for interstate

commerce pursuant to 49 U.S.C. § 31315, is limited to

interstate commerce only.” N.J. Admin. Code § 13:21-

23.28(a) (2020) (amended 2023).

8

operating any CMV requiring a passenger (P)

and school bus (S) endorsement.

Letter from Gina M. Sine, Manager, Driver Review Bureau, to

Katrina Parker (Aug. 9, 2018) (JA136). The NJMVC sent

Parker a follow-up letter dated August 17, 2018, that repeated

that same message. In addition, the follow-up letter informed

Parker that her endorsements would be removed effective

August 28, 2018, and it directed her to “visit a Motor Vehicle

Agency after August 28, 2018[,] and obtain a duplicate . . .

commercial driver license (CDL) without a P and S

endorsement.” Letter from Gina M. Sine, Manager, Driver

Review Bureau, to Katrina Parker (Aug. 17, 2018) (JA158).

Neither letter offered Parker an evidentiary hearing or other

opportunity to be heard before the revocation of the P and S

endorsements. Without the endorsements, First Transit ended

Parker’s employment later that month.

C. Parker Sues in the District Court.

Under New Jersey law, Parker had 45 days to challenge the

revocation of her endorsements in Superior Court. 17 But she

did not do so. Instead, about seven months later, on March 25,

2019, she initiated this suit in the District Court against the

NJMVC and B. Sue Fulton in her official capacity as its Chief

Administrator for monetary damages as well as for declaratory

and injunctive relief. 18 Parker claimed disability

17

See N.J. R. App. Prac. 2:4-1(b). See generally N.J. Admin.

Code § 13:19-1.2 (describing the process to request an

administrative hearing after the issuance of a notice of

proposed action against a driver’s license).

18

In July 2022, while this case was pending in the District

Court, Latrecia Littles-Floyd became the Acting Chief

Administrator of the NJMVC. Cf. Fed. R. Civ. P. 25(d)

(providing for automatic substitution of successor

officeholders for official-capacity claims); Fed. R. App.

P. 43(c)(2) (same); Vanderklok v. United States, 868 F.3d 189,

9

discrimination based on her deafness under three statutes:

Title II of the Americans with Disabilities Act, § 504 of the

Rehabilitation Act, and New Jersey’s Law Against

Discrimination, or ‘LAD.’ She also brought civil rights claims

under the Fourteenth Amendment and 42 U.S.C. § 1983 for

violations of procedural due process on the ground that she did

not have a meaningful opportunity to be heard before the

NJMVC revoked her endorsements. The District Court

exercised federal question and civil rights jurisdiction over

Parker’s federal claims, see 28 U.S.C. §§ 1331, 1343(a), and

supplemental jurisdiction over her LAD claim, see id.

§ 1367(a).

The NJMVC and the Chief Administrator filed a motion to

dismiss that challenged the sufficiency of Parker’s allegations

for each of her claims and asserted Eleventh Amendment

immunity for every claim except the § 504 claim. 19 The

District Court granted that motion in part by merging her

freestanding Fourteenth Amendment claim into her § 1983

claim; 20 by eliminating her claim for monetary relief under

205 n.16 (3d Cir. 2017) (explaining that this Court may take

judicial notice of “information [that] is publicly available on

government websites”).

19

See 42 U.S.C. § 2000d-7(a)(1) (abrogating Eleventh

Amendment immunity for claims under § 504 of the

Rehabilitation Act); cf. United States v. Georgia, 546 U.S. 151,

159 (2006) (setting forth a three-part test for evaluating

whether Title II abrogates Eleventh Amendment immunity);

Geness v. Admin. Off. of Pa. Cts., 974 F.3d 263, 270 (3d Cir.

2020) (applying the United States v. Georgia three-part test);

Bowers v. Nat’l Coll. Athl. Ass’n, 475 F.3d 524, 553–56

(3d Cir. 2007) (same).

20

See Capogrosso v. Sup. Ct. of N.J., 588 F.3d 180, 185

(3d Cir. 2009) (“Inasmuch as § 1983 affords a remedy for

infringement of one’s constitutional rights, identical claims

raised under the Fourteenth Amendment are redundant,

10

§ 1983 on Eleventh Amendment immunity grounds; 21 and by

not permitting injunctive relief with respect to any claim

against the NJMVC. 22 See Parker v. Fulton, 2020 WL

5096990, at *2 (D.N.J. Aug. 28, 2020). But the District Court

otherwise denied the motion to dismiss. See id.

After the NJMVC and the Chief Administrator

unsuccessfully moved for reconsideration, see id. at *1, and

discovery was completed, the parties cross-moved for

summary judgment. In resolving those motions, the District

Court entered summary judgment against all of Parker’s

claims. See Parker v. Fulton, 2023 WL 2535328, at *8 (D.N.J.

Mar. 16, 2023). 23

Through a timely notice of appeal, Parker invoked this

Court’s appellate jurisdiction over that final decision. See

28 U.S.C. § 1291; Fed. R. App. P. 4(a)(1)(A). She now

contests the entry of summary judgment against her disability

discrimination claims under Title II, § 504, and the LAD, and

against her § 1983 procedural due process claim. 24

rendering the outcome of the § 1983 claims dispositive of the

independent constitutional claims.”).

21

See Hans v. Louisiana, 134 U.S. 1, 10–11 (1890) (extending

Eleventh Amendment immunity principles to nondiverse

parties).

22

At the motion-to-dismiss stage, the District Court construed

Parker’s Fourteenth Amendment claim as also including an

equal protection component that was merged into Parker’s

§ 1983 claim.

23

At summary judgment, the District Court determined that

Parker did not actually allege an equal protection claim.

Parker, 2023 WL 2535328, at *7 n.3.

24

Parker also argues that the District Court erred at summary

judgment by rejecting an equal protection component to her

11

II. DISCUSSION

A. Parker’s Claims for Disability Discrimination

Under the Celotex approach to summary judgment, if

challenged by the moving party at summary judgment, the non-

moving party must make “a showing sufficient to establish the

existence of an element essential to that party’s case . . . on

which that party will bear the burden of proof at trial.” Mall

Chevrolet, Inc. v. Gen. Motors LLC, 99 F.4th 622, 630 (3d Cir.

2024) (alteration in original) (quoting Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986)). Here, in applying that standard, the

District Court entered summary judgment against each of

Parker’s disability discrimination claims because it determined

that she could not provide the proof required for one element

of those claims: that she was qualified for the P or S

endorsements. Parker, 2023 WL 2535328, at *4–5. See

generally A. J. T. ex rel. A. T. v. Osseo Area Schs., 605 U.S.

335, 345 (2025) (“The substantive provisions of both Title II

and Section 504, by their plain terms, apply to ‘qualified

individual[s]’ with disabilities.” (alternation in original) (citing

29 U.S.C. § 794(a); 42 U.S.C. § 12132)); Wojtkowiak v. N.J.

§ 1983 claim. But that was not an error – at least not one

affecting Parker’s substantial rights, see Fed. R. Civ. P. 61 –

because her complaint did not mention equal protection.

The District Court’s Eleventh Amendment rulings, however,

were not challenged on appeal. Cf. Wis. Dep’t of Corr. v.

Schacht, 524 U.S. 381, 389 (1998) (“[T]he Eleventh

Amendment grants the State a legal power to assert a sovereign

immunity defense should it choose to do so. The State can

waive the defense. Nor need a court raise the defect on its own.

Unless the State raises the matter, a court can ignore it.”

(citations omitted)); Christy v. Penn. Tpk. Comm’n, 54 F.3d

1140, 1144 (3d Cir. 1995) (explaining that despite its

“jurisdictional attributes” the Eleventh Amendment “should be

treated as an affirmative defense” (quoting ITSI TV Prods., Inc.

v. Agric. Ass’ns, 3 F.3d 1289, 1291 (9th Cir. 1993))).

12

Motor Vehicle Comm’n, 106 A.3d 519, 527 (N.J. Super. Ct.

App. Div. 2015) (internal quotation marks and citation

omitted) (explaining that “otherwise qualified to participate in

the activity or program at issue” is an element required to state

a prima facie case of discrimination under the LAD for the

denial of the benefits of a program). Parker now contests those

rulings.

1. The Title II Claim

A Title II claim is predicated upon a plaintiff being a

“qualified individual with a disability.” 42 U.S.C. § 12132;

see also Geness v. Admin. Off. of Pa. Cts., 974 F.3d 263, 273

(3d Cir. 2020); Haberle v. Troxell, 885 F.3d 170, 178 (3d Cir.

2018). As statutorily defined, the term ‘qualified individual

with a disability’ requires that a Title II plaintiff meet the

essential eligibility requirements for participation in the public

entity’s programs or services:

The term “qualified individual with a disability”

means an individual with a disability who, with

or without reasonable modifications to rules,

policies, or practices, the removal of

architectural, communication, or transportation

barriers, or the provision of auxiliary aids and

services, meets the essential eligibility

requirements for the receipt of services or the

participation in programs or activities provided

by a public entity.

42 U.S.C. § 12131(2) (emphasis added).

For Parker’s Title II claim, one eligibility requirement for a

P or an S endorsement in New Jersey is that the CDL license

holder meet the minimum federal hearing standards. See N.J.

Stat. §§ 39:3-10.18(a)(2), 39:3-10.1; N.J. Admin. Code

§ 13:21-14:5(a), (c)(11); id. § 13:21-14.3; 49 C.F.R.

§ 391.41(b)(11); see also Albertson’s, Inc. v. Kirkingburg,

527 U.S. 555, 573 (1999) (“When Congress enacted the ADA,

13

it recognized that federal safety rules would limit application

of the ADA as a matter of law.”). There is no dispute that

Parker cannot meet that requirement, even with the benefit of

“auxiliary aids and services,” the removal of barriers, or

reasonable modifications to other “rules, policies, or

practices.” 42 U.S.C. § 12131(2).

It is, however, an open question in this Circuit whether

every eligibility requirement is also an essential eligibility

requirement for purposes of Title II. Compare Mary Jo C. v.

N.Y. State & Loc. Ret. Sys., 707 F.3d 144, 160 (2d Cir. 2013)

(distinguishing ‘essential eligibility requirements’ from “all

formal legal eligibility requirements”), with PGA Tour, Inc. v.

Martin, 532 U.S. 661, 700 (2001) (Scalia, J., dissenting)

(observing in the context of a Title III claim that “[t]o say that

something is ‘essential’ is ordinarily to say that it is necessary

to the achievement of a certain object”). But Parker does not

contend that there is a difference between essential eligibility

requirements and all eligibility requirements, much less that if

there were such a difference, that a minimum ability to hear

would not be an essential eligibility requirement for a P or an

S endorsement. Cf. Mary Jo C., 707 F.3d at 157 (“[W]hether

an eligibility requirement is essential is determined by

consulting the importance of the requirement to the program in

question.”); cf. also Tennessee v. Lane, 541 U.S. 509, 531–32

(2004) (“Title II does not require States to employ any and all

means to make judicial services accessible to persons with

disabilities, and it does not require States to compromise their

essential eligibility criteria for public programs.”); Olmstead v.

L.C. ex rel. Zimring, 527 U.S. 581, 602 (1999) (“[T]he State

generally may rely on the reasonable assessments of its own

professionals in determining whether an individual ‘meets the

essential eligibility requirements’ . . . .” (quoting 42 U.S.C.

§ 12131(2))). Instead, Parker asserts that the NJMVC and its

Chief Administrator discriminated against her by failing to

assess her individual competencies through a variance process

for the P and S endorsements. But Parker’s approach skips a

step – only qualified individuals with a disability may claim

14

discrimination under Title II. See Geness, 974 F.3d at 273;

Haberle, 885 F.3d at 178; see also Olmstead, 527 U.S. at 603

(explaining a modification that fundamentally alters a state’s

program is not reasonable). Parker has not made the showing

that she is a qualified individual with a disability, so her claim

fails without further consideration of its merits or lack thereof.

As a potential workaround to making the required showing

that she is a qualified individual, Parker asserts a facial

challenge to New Jersey’s hearing requirement for the P and S

endorsements. For this contention, she relies on New

Directions Treatment Services v. City of Reading, 490 F.3d

293 (3d Cir. 2007), a successful facial challenge under Title II

to a Pennsylvania statute that restricted the location of

methadone clinics unless otherwise approved by a municipal

government, id. at 298–99, 305. Parker argues that a similar

result should follow here because New Jersey’s hearing

requirement for the P and S endorsements facially

discriminates against deaf persons. But in New Directions,

“[t]he parties d[id] not dispute that recovering heroin addicts

are presumptively ‘qualified’ persons under the ADA and

Rehabilitation Act.” Id. at 308. Yet here, the NJMVC and its

Chief Administrator dispute that Parker is qualified for the P

and S endorsements, and Parker has not shown that she is, so

New Directions is not a solution for her.

Parker also argues that under Title II a deaf person may

drive school buses unless that person is a direct threat to the

safety of others. The problem for her is that both of the sources

that she relies on for that proposition – an EEOC guidance

document 25 and an en banc decision by the Fifth Circuit 26 –

25

U.S. Equal Emp. Opportunity Comm’n, Guidance on

Hearing Disabilities in the Workplace and the Americans with

Disabilities Act (Jan. 24, 2023) [https://perma.cc/3VGN-

ZLR3].

26

Rizzo v. Child.’s World Learning Ctrs., Inc., 213 F.3d 209,

211–13 (5th Cir. 2000) (en banc) (upholding a judgment in

15

concern the application of Title I of the ADA, which governs

employment discrimination, not Title II of the ADA, which

applies to discrimination in public programs, services, or

activities. See generally Stanley v. City of Sanford, 145 S. Ct.

2058, 2063 (2025) (“The ADA contains five titles separately

addressing employment, public entities, public

accommodations, telecommunications, and miscellaneous

matters.”). And Title I uses the phrase ‘essential functions of

the employment position’ to define the term ‘qualified

individual with a disability’ for purposes of that title and allows

for a direct-threat affirmative defense, while Title II uses the

phrase ‘essential eligibility requirements’ to define the term

‘qualified individual with a disability’ for purposes of that title

and contains no such affirmative defense. Compare 42 U.S.C.

§ 12111(8), (3) (Title I), with id. § 12131(2) (Title II). See also

Jarod S. Gonzalez, On the Edge: The ADA’s Direct Threat

Defense and the Objective Reasonableness Standard,

103 Marq. L. Rev. 513, 518–21 (2019) (chronicling the history

of the direct threat defense). Thus, even if Parker’s sources

were persuasive in the Title I context, those differences in

statutory text matter. See Stanley, 145 S. Ct. at 2064 (“That

Congress used different language in . . . two [ADA] provisions

strongly suggests that it meant for them to work differently.”).

And because the definition of ‘qualified individual with a

disability’ for purposes of Title II includes a provision

regarding the ‘essential eligibility requirements’ for the

program, the sources cited by Parker do not address the critical

issue in this case. Therefore, they do not provide a basis for

concluding that she could meet the essential eligibility

requirements for a P or an S endorsement.

favor of a hearing-impaired teacher’s aide who was reassigned

from one of her duties, driving a school van, following a

parent’s safety complaint).

16

2. The Section 504 Claim

Parker has not provided any reason to prevent a similar

analysis from dispensing with her § 504 claim. To have a

claim under § 504, a plaintiff must be an “otherwise qualified

individual with a disability.” 29 U.S.C. § 794(a). In

construing the meaning of that phrase in the context of a

hearing-impaired applicant for nursing school, the Supreme

Court rejected another appellate court’s interpretation that

“‘otherwise qualified’ persons protected by § 504 include

those who could meet the requirements of a particular program

in every respect except as to limitations imposed by their

handicap.” Se. Cmty. Coll. v. Davis, 442 U.S. 397, 400, 406

(1979) (citing Davis v. Se. Cmty. Coll., 574 F.2d 1158, 1160

(4th Cir. 1978)). It did so because such an approach “would

prevent an institution from taking into account any limitation

resulting from the handicap, however disabling,” and

“assumes, in effect, that a person need not meet legitimate

physical requirements in order to be ‘otherwise qualified.’” Id.

at 406; see also id. at 407 n.7 (“Under such a literal reading, a

blind person possessing all the qualifications for driving a bus

except sight could be said to be ‘otherwise qualified’ for the

job of driving. Clearly, such a result was not intended by

Congress.” (quoting 45 C.F.R. pt. 84, App. A, p. 405 (1978))).

Thus, rather than interpret ‘otherwise qualified’ in that manner

– as Parker now asks this Court to do – the Supreme Court

explained that “[a]n otherwise qualified person is one who is

able to meet all of a program’s requirements in spite of his

handicap.” Id. at 406; accord Sullivan v. City of Pittsburgh,

811 F.2d 171, 182 (3d Cir. 1987). And under that standard,27

Parker is not an ‘otherwise qualified individual’ for purposes

27

The general standard for ‘otherwise qualified’ is dispositive

here because Parker does not invoke the technological

advances exception. See Davis, 442 U.S. at 412 (recognizing

a ‘technological advances’ exception to the general definition

of the term ‘qualified individual’ in § 504); see also Strathie v.

Dep’t of Transp., 716 F.2d 227, 228–31 (3d Cir. 1983).

17

of § 504 because she cannot satisfy the hearing requirement for

the P and S endorsements. See Copeland v. Phila. Police

Dep’t, 840 F.2d 1139, 1148–49 (3d Cir. 1988) (rejecting a

§ 504 claim by a 13-year veteran police officer because he was

not otherwise qualified for the position by virtue of his drug

use). Accordingly, Parker’s § 504 claim fails as well.

3. The LAD Claim

Much like the requirements for a § 504 claim, to succeed

on a disability discrimination claim under the LAD, see N.J.

Stat. § 10:5-12(f)(1), a plaintiff must demonstrate that he or she

“was otherwise qualified to participate in the activity or

program at issue.” Wojtkowiak, 106 A.3d at 527 (quoting J.T.

v. Dumont Pub. Schs., 103 A.3d 269, 282 (N.J. Super. Ct. App.

Div. 2014)). In construing the LAD’s qualification

requirement, New Jersey courts have looked to federal court

decisions on the qualification requirements for claims under

§ 504 of the Rehabilitation Act and Title II of the ADA. See

Lasky v. Borough of Hightstown, 43 A.3d 445, 451–53 (N.J.

Super. Ct. App. Div. 2012) (applying Title II principles to

determine whether a person was qualified in the context of a

denial of a place of public accommodation LAD claim); J.T.,

103 A.3d at 282 (“To determine the extent of the protection

afforded to disabled persons under the LAD, we must look to

the analytical framework of the RA and the ADA.”); cf. Victor

v. State, 4 A.3d 126, 140 (N.J. 2010) (“We can infer, since the

Legislature has never amended the LAD to afford rights to the

disabled that are different from those found in Section 504 and

the ADA, that the regulatory interpretation [incorporating the

federal statutes’ reasonable accommodation paradigm]

matches the Legislature’s intent.”). Consistent with that

approach, if Parker could not show that she was an ‘otherwise

qualified individual with a disability’ for purposes of § 504 or

that she was a ‘qualified individual with a disability’ for

purposes of Title II, she has not shown that she is a qualified

individual for purposes of the LAD. Thus, the District Court

did not err in granting summary judgment on this claim as well.

18

B. The Procedural Due Process Claim

Parker also appeals the entry of summary judgment against

her § 1983 procedural due process claim. A Fourteenth

Amendment procedural due process claim consists of three

elements: (i) a deprivation of life, liberty, or property; (ii) by a

state actor; (iii) without due process of law. See Reed v.

Goertz, 598 U.S. 230, 236 (2023); Blum v. Yaretsky, 457 U.S.

991, 1002–03 (1982) (recounting that the Fourteenth

Amendment applies only to state action); see also U.S. Const.

amend. XIV, § 1 (“[N]or shall any State deprive any person of

life, liberty, or property, without due process of law.”). At

summary judgment, based on a review of the undisputed

material facts, the District Court determined that Parker, who

alleged only a deprivation of a property interest, did not satisfy

the first element because she did not have a property interest in

the P or S endorsements. Parker, 2023 WL 2535328, at *6;

see generally Fed. R. Civ. P. 56(a) (“The court shall grant

summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.”); Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248–52 (1986) (explaining the

meaning of the terms ‘material’ and ‘genuine’). Parker now

challenges that ruling. The NJMVC and its Chief

Administrator respond that Parker did not have a property

interest in the endorsements, but even if she did, she received

the process that she was due because a pre-deprivation hearing

was not required, and hence summary judgment was properly

entered against her.

The question of whether a person has a property interest in

endorsements on a driver’s license is novel. 28 If Parker had a

28

See generally Bd. of Regents of State Colls. v. Roth, 408 U.S.

564, 577 (1972) (explaining that to have a property interest for

purposes of a procedural due process claim related to the

revocation of a state-granted right or privilege, a “unilateral

expectation” is insufficient; it takes a “legitimate claim of

entitlement” to the right or privilege); see also Mackey v.

19

property interest in the endorsements, then she would have

been due some adjudicative process because the endorsements

were revoked on an individual basis. Compare Londoner v.

City & County of Denver, 210 U.S. 373, 385–86 (1908)

(holding that deprivations of property interests on an individual

basis merit due process protection), with Bi-Metallic Inv. Co.

v. State Bd. of Equalization, 239 U.S. 441, 445–46 (1915)

(holding that the constitutional right to a hearing does not apply

to rulemaking which involves “general determination[s]” that

impact “more than a few people”), and Bell v. Burson,

402 U.S. 535, 539 (1971) (“If the statute barred the issuance of

licenses to all motorists who did not carry liability insurance or

who did not post security, the statute would not, under our

cases, violate the Fourteenth Amendment.”). And while the

“core” process due under the Constitution is “notice and a

meaningful opportunity to be heard,” LaChance v. Erickson,

522 U.S. 262, 266 (1998), Parker does not contest the notice

that the NJMVC provided her; she claims only a denial of a

meaningful opportunity to be heard based on the lack of a pre-

deprivation hearing.

In many contexts, to be meaningful, an opportunity to be

heard must occur before a deprivation of a protected interest.

See United States v. James Daniel Good Real Prop., 510 U.S.

43, 48 (1993). But the degree of procedural protection afforded

by the Due Process Clause is “flexible” and circumstance

dependent. Morrissey v. Brewer, 408 U.S. 471, 481 (1972).

Not every deprivation of a property interest requires a pre-

deprivation hearing. See Gilbert v. Homar, 520 U.S. 924, 930

(1997) (“[W]here a State must act quickly, or where it would

be impractical to provide predeprivation process,

postdeprivation process satisfies the requirements of the Due

Process Clause.”); James Daniel Good, 510 U.S. at 53

Montrym, 443 U.S. 1, 10 n.7 (1979) (recognizing “the Due

Process Clause applies to a state’s suspension or revocation of

a driver’s license”); Dixon v. Love, 431 U.S. 105, 112 (1977)

(similar); Bell v. Burson, 402 U.S. 535, 539 (1971) (similar).

20

(tolerating exceptions to the pre-deprivation hearing rule when

“some valid governmental interest is at stake that justifies

postponing the hearing until after the event” (quoting Fuentes

v. Shevin, 407 U.S. 67, 82 (1972))); Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. 532, 542 n.7 (1985) (“There are, of

course, some situations in which a postdeprivation hearing will

satisfy due process requirements.”); see also Culley v.

Marshall, 601 U.S. 377, 386 (2024) (holding that “[a]fter a

State seizes and seeks civil forfeiture of personal property, due

process requires a timely forfeiture hearing but does not require

a separate preliminary hearing”). To determine whether there

was “the opportunity to be heard ‘at a meaningful time and in

a meaningful manner,’” the Supreme Court, in Mathews v.

Eldridge, 424 U.S. 319 (1976), articulated a three-factor test

that considers (i) “the private interest that will be affected by

the official action”; (ii) “the risk of an erroneous deprivation

. . . and the probable value, if any, of additional or substitute

procedural safeguards”; and (iii) “the [g]overnment’s interest,

including the function involved and the fiscal and

administrative burdens that the additional or substitute

procedural requirement would entail.” Id. at 335; see also B.S.

v. Somerset County, 704 F.3d 250, 271 (3d Cir. 2013)

(applying the Mathews test to evaluate whether there was the

opportunity to be heard at a meaningful time and in a

meaningful manner).

The Supreme Court has twice employed the Mathews

balancing test to evaluate procedural due process challenges to

the lack of a pre-deprivation hearing associated with the

deprivation of a driver’s license. In Dixon v. Love, 431 U.S.

105 (1977), the challenge involved the revocation of a driver’s

license for repeated moving violations without a pre-

deprivation hearing under that circumstance. Id. at 106–11.

And in Mackey v. Montrym, 443 U.S. 1 (1979), the challenge

was to the suspension of a driver’s license for 90 days for

refusing to take a breathalyzer after a drunk-driving arrest, also

without a pre-deprivation hearing. Id. at 5–6. In both cases,

safety concerns motivated the license revocation or

21

suspension, and the Supreme Court rejected the contention that

procedural due process required a pre-deprivation hearing. See

id. at 19; Dixon, 431 U.S. at 115. But cf. Bell, 402 U.S. at 540–

42 (holding, in a case decided before the formulation of the

Mathews test, that procedural due process required an advance

hearing when the justification for the deprivation of the

driver’s license was not grounded in safety concerns but rather

in a fiscal interest in a judgment that had “no reasonable

possibility of . . . being rendered”). Parker relies on the dissent

in Mackey, to argue that she was entitled to a pre-deprivation

hearing. See Mackey, 443 U.S. at 21 (Stewart, J., dissenting)

(“When a deprivation is irreversible—as is the case with a

license suspension that can at best be shortened but cannot be

undone—the requirement of some kind of hearing before a

final deprivation takes effect is all the more important.”). And

here, even supposing that Parker has a property interest in the

endorsements, the Mathews factors also do not compel a pre-

deprivation hearing for the revocation of Parker’s

endorsements. 29

The first Mathews factor – the private interest – examines

more than simply the presence of a property interest. See

Mathews, 424 U.S. at 335, 340–43. Rather, it evaluates the

strength of the asserted interest. See Disability Rts. N.J., Inc.

v. Comm’r, N.J. Dep’t of Hum. Servs., 796 F.3d 293, 309

(3d Cir. 2015). The property interest, if any, that Parker has in

the endorsements is not appreciable. It is true that she received

those endorsements and that they opened employment

opportunities for her, including her job at First Transit. But

even so, the private interest in a driver’s license – not merely

an endorsement on the license – “may not be so vital and

essential” as other government-conferred rights and privileges.

See Dixon, 431 U.S. at 113. And any interest that Parker may

29

See generally TD Bank N.A. v. Hill, 928 F.3d 259, 270

(3d Cir. 2019) (explaining that appellate courts “may affirm on

any basis supported by the record, even if it departs from the

District Court’s rationale”).

22

have lost, however, was in the endorsements – not in the

underlying CDL or even in a basic driver’s license – so even

with the additional employment opportunities that they make

available, any interest she had in the endorsements would be

comparatively less than the private interests in a basic driver’s

license or a CDL. Cf. Cafeteria & Rest. Workers Union, Local

473 v. McElroy, 367 U.S. 886, 895–96 (1961) (explaining that

the private interest in following “a chosen trade or profession”

was not affected when “[a]ll that was denied . . . was the

opportunity to work at one isolated and specific military

installation”). Also, any interest that Parker may have had in

the endorsements is weakened significantly because she could

not pass the hearing test required for them. Cf. Mitchell v.

W. T. Grant Co., 416 U.S. 600, 603–04 (1974) (holding that

neither notice nor an opportunity for a pre-deprivation hearing

was needed to sequester personal property when title to that

property was “heavily encumbered”). So, without showing

that she actually qualified for the endorsements, any legitimate

claim of entitlement that Parker could have for them rests on

her receipt of them – and that is not a particularly potent claim.

For these reasons, any property interest Parker would have in

the endorsements would be quite weak.

The second Mathews factor – risk of error – also tilts

heavily against Parker. See Mathews, 424 U.S. at 335, 343–

47. Without evidence that Parker could pass the hearing test

needed for the P and S endorsements, there is no reason to

believe that the NJMVC erred in concluding that Parker could

not pass the test. Parker instead argues that a pre-deprivation

hearing was needed to perform an individualized assessment

of her ability to safely drive commercial motor vehicles with

passengers. But as explained above, none of the anti-

discrimination statutes that she invokes require such an

assessment at any point – pre- or post-deprivation – for persons

who do not meet the essential eligibility requirements or are

otherwise qualified for the endorsements. Cf. Davis, 442 U.S.

at 407. Moreover, the availability of post-deprivation remedies

further minimizes risk-of-error concerns. See Hudson v.

23

Palmer, 468 U.S. 517, 532 (1984); Parratt v. Taylor, 451 U.S.

527, 538 (1981) (“We have, however, recognized that

postdeprivation remedies made available by the State can

satisfy the Due Process Clause.”), overruled on other grounds

by Daniels v. Williams, 474 U.S. 327, 330–31 (1986). And

here, unlike the typical revocation of a driver’s license, where

the only redress is restoration of the license through the

administrative process, 30 Parker also had available to her and

has pursued post-deprivation claims for disability

discrimination, which have the potential to provide more

comprehensive relief than simply the restoration of her

endorsements. See 42 U.S.C. § 12133 (Title II); 29 U.S.C.

§ 794a(a)(2) (Section 504); N.J. Stat. 10:5-12.11 (LAD); see

also 42 U.S.C. § 2000d-7(a)(1). Thus, Parker’s ability to seek

meaningful post-deprivation redress in court increases not only

the likelihood of correcting error but also the availability of

potential compensation for any error. In sum, with the risk-of-

error analysis localized to the question of Parker’s ability to

hear and with the availability of comparatively more

comprehensive relief though civil claims for disability

discrimination, the second factor weighs definitively against

the need for a pre-deprivation hearing.

The third Mathews factor – the government’s interest –

likewise cuts against any pre-deprivation hearing. See

Mathews, 424 U.S. at 335, 347–49; Honda Lease Tr. v.

Malanga’s Auto., 152 F.4th 477, 487 (3d Cir. 2025)

(“[S]ituations where some valid governmental interest is at

stake . . . justif[y] postponing the hearing until after the event”

(alteration in original) (quoting Fuentes, 407 U.S. at 82)). The

criteria for the endorsements reflect an important governmental

interest in the public safety of commercial motor vehicles

carrying passengers. See Dixon, 431 U.S. at 114 (recognizing

30

E.g., Dixon, 431 U.S. at 113 (observing in a case that did not

involve discrimination claims that “a licensee is not made

entirely whole if his suspension or revocation is later

vacated”).

24

a strong governmental interest “in [the] safety on the roads and

highways, and in the prompt removal of a safety hazard”). Yet

Parker could not meet one of those safety requirements for the

endorsements – the minimum hearing standard. See N.J. Stat.

§ 39:3-10.1; N.J. Admin. Code § 13:21-14.5(a), (c)(11); id.

§ 13:21-14.3; 49 C.F.R. § 391.41(b)(11). With safety

concerns at issue, even without any specific consideration of

the additional fiscal and administrative burdens associated with

a pre-deprivation hearing, the government’s interest strongly

favors revocation of the endorsements without a pre-

deprivation hearing. See N.J. Stat. § 39:3-10.10 (“The purpose

of this act is to reduce or prevent commercial motor vehicle

accidents, fatalities, and injuries by strengthening licensing and

testing standards for drivers of commercial motor vehicles[.]”).

In sum, none of the Mathews factors counsels in favor of

affording Parker a pre-deprivation hearing: any property

interest that Parker may have had in the endorsements would

be weak; no one identifies any risk of error, much less one that

would not be subject to adequate civil redress in court; and the

NJMVC has a strong interest in public safety. So, just as the

Supreme Court in Dixon and again in Mackey rejected

procedural due process challenges to the lack of a pre-

deprivation hearing associated with the revocation of a driver’s

license under the Mathews balancing test, Parker’s procedural

due process claim related to the lack of a pre-revocation

hearing with respect to her P and S endorsements also fails.

See Dixon, 431 U.S. at 115; Mackey, 443 U.S. at 19.

III. CONCLUSION

For the foregoing reasons, we will affirm the judgment of

the District Court.

25