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)
____________

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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]
O FFICE OF A TTORNEY G ENERAL OF N EW JERSEY
D IVISION 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-

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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. B ACKGROUND
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”).

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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

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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).

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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 endorsement9 – 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.

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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.

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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).

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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,

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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,

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§ 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

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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))).

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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,

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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

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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
document25 and an en banc decision by the Fifth Circuit26 –
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

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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).

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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).

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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.

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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.

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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).

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(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

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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”).

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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.

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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”).

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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. C ONCLUSION
For the foregoing reasons, we will affirm the judgment of
the District Court.

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