Skinner v. Salem School District

2010 DNH 106

• Court: District Court, D. New Hampshire
• Decided: June 18, 2010
• Docket: CV-09-193-JL
• Status: Published

Opinion

Skinner v. Salem School District CV-09-193-JL 6/18/10 P UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Carol Skinner

v. Civil No. 09-cv-193-JL Opinion No. 2010 DNH 106 Salem School District

MEMORANDUM ORDER

This case presents a question that has divided the federal

circuit courts of appeal: whether a public employee may bring an

employment discrimination claim under Title II of the Americans

with Disabilities Act ("ADA"), 42 U.S.C. § 12132, which prohibits

disability discrimination by public entities. Compare Bledsoe v.

Palm Beach County Soil & Water Conservation Dist., 133 F.3d 816

(11th Cir. 1998) (allowing such claims), with Zimmerman v. Or.

Dep't of Justice, 170 F.3d 1169 (9th Cir. 1999) (disallowing

them). Plaintiff Carol Skinner sued her former employer, the

Salem School District, alleging that it discriminated against her

and ultimately fired her from a food service job because she has

a disabling arthritic condition. This court, which has

jurisdiction under 28 U.S.C. § 1331 (federal question), construed

Skinner's pro se complaint as asserting a claim under Title II.1

documents no. 6 and 8 (applying Local Rule 4.3(d)(1)). This court also construed Skinner's complaint as asserting claims The school district has moved for judgment on the pleadings,

see Fed. R. Civ. P. 12(c), arguing that Title II cannot be used

to bring an employment discrimination claim because the proper

vehicle for such a claim is Title I, which expressly prohibits

disability discrimination in employment. See 42 U.S.C.

§ 12112(a). After oral argument, the motion is denied. Although

this court believes that the sounder construction of Title II

excludes employment discrimination claims, our court of appeals

has noted that "the language of Title II [is not] clear on this

guestion" and that it "is not unheard of for individuals to have

overlapping rights." Currie v. Group Ins. Comm'n, 2 90 F.3d 1, 6

(1st Cir. 2002). Since the statute is therefore ambiguous, this

court must defer to the implementing agency, which has reasonably

construed Title II as encompassing employment discrimination

claims against public entities. See Chevron U.S.A., Inc. v.

Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984)

(reguiring deference to implementing agency where it reasonably

resolves a statutory ambiguity).

under Titles I and IV of the ADA, but dismissed those claims without prejudice because she had not exhausted her administrative remedies. Id. Title II is not subject to that exhaustion reguirement, as discussed infra.

2 I. Applicable legal standard

A motion for judgment on the pleadings under Rule 12 (c) is

evaluated under essentially the same standard as a Rule 12(b)(6)

motion for failure to state a claim. See Perez-Acevedo v.

Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008). To survive such

a motion, the party bringing the claims must make "factual

allegations that 'raise a right to relief above the speculative

level, on the assumption that all the allegations in the

complaint are true.'" Simmons v. Galvin, 575 F.3d 24, 30 (1st

Cir. 2009) (guoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007)). Here, the school district's motion does not hinge on

the specific facts alleged in Skinner's complaint; it raises a

purely legal guestion about the scope of Title II. Questions of

statutory interpretation are "ripe for resolution at the

pleadings stage." Id.

II . Analysis

The sole issue raised by the school district's motion is

whether a public employee may bring an employment discrimination

claim under Title II of the ADA, which provides:

3 [N] o qualified individual with a disability[2] shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

42 U.S.C. § 12132. The school district argues that employment is

not a public service, program, or activity within the meaning of

Title II and falls instead under Title I, which expressly

prohibits disability discrimination in employment. See 42 U.S.C.

§ 12112(a). Skinner argues, in response, that where the employer

is a public entity, an employment discrimination claim may be

brought under either Title I or Title II.

Many federal courts have already ruled upon this issue,

including two circuit courts of appeal. They reached opposite

conclusions. Compare Bledsoe, 133 F.3d at 816, 820-22 (allowing

employment discrimination claims against public entities under

Title II), with Zimmerman, 170 F.3d at 1169 (disallowing them).

Both the Supreme Court and First Circuit have also commented on

the issue, albeit in dicta. See Bd. of Trs. of Univ. of Ala, v.

Garrett, 531 U.S. 356, 360 n.l (2001); Currie, 290 F.3d at 6.

2A "qualified individual" is defined as "an individual with a disability who, with or without reasonable modifications . . ., 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).

4 This court will summarize each of those authorities before

reaching its own conclusion.

A. Eleventh Circuit decision

In the first circuit court case to address this issue, the

Court of Appeals for the Eleventh Circuit concluded that

employment discrimination claims may be brought against public

entities under Title II. See Bledsoe, 133 F.3d at 816. The

court began by discussing congressional purpose and legislative

history. It noted that Congress's stated intent in passing the

ADA was "to provide a clear and comprehensive national mandate

for the elimination of discrimination against individuals with

disabilities," including in the employment context. Id. at 820

(citing 42 U.S.C. § 12101(b) (1)). Furthermore, the court noted

that "[e]xtensive legislative commentary regarding the

applicability of Title II to employment discrimination . . . is

so pervasive as to belie any contention that Title II does not

apply to employment actions." Id. at 821 (citing examples).

Turning to the statutory language, the Eleventh Circuit

compared Title II with section 504 of the Rehabilitation Act, on

which Title II was modeled. Id. Section 504 prohibits

disability discrimination in "any program or activity receiving

Federal financial assistance," 29 U.S.C. § 794(a), much like how

5 Title II prohibits disability discrimination in "the services,

programs, and activities of a public entity," 42 U.S.C. § 12132.

In an earlier case, the Supreme Court had deemed it

"unquestionable that . . . section [504] was intended to reach

employment discrimination." Consol. Rail Corp. v. Darrone, 4 65

U.S. 624, 632 (1984). The Eleventh Circuit reasoned that

"Congress intended Title II to work in the same manner as

Section 504." Bledsoe, 133 F.3d at 821.

Indeed, the Eleventh Circuit emphasized that Congress used

even broader language in Title II than in the Rehabilitation

Act, adding a "catch-all" phrase at the end--i.e., protecting

qualified individuals from being "subjected to discrimination"--

that "prohibits all discrimination by a public entity,

regardless of the context." Id. at 822 (quoting Innovative

Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 44-45

(2d Cir. 1997)). In light of that "catch-all" phrase, the

congressional purpose, the legislative history, and the Supreme

Court's interpretation of the Rehabilitation Act, the Eleventh

Circuit concluded that "employment coverage is clear from the

language and structure of Title II." Id.

Even if the statute were unclear, however, the Eleventh

Circuit noted that the DOJ, to which Congress gave authority to

promulgate regulations implementing Title II, see 42 U.S.C.

6 § 12134, has expressly construed the statute as encompassing

employment discrimination claims. See 28 C.F.R. § 35.140(a).

Where a federal statute "is silent or ambiguous with respect to

the specific issue" and Congress delegates "authority to the

agency to elucidate a specific provision of the statute by

regulation," courts must defer to the agency's interpretation

unless it is arbitrary or capricious. Chevron, 467 U.S. at 842-

43. Calling the DOJ regulation a "reasonable construction of

statutory language," the Eleventh Circuit deemed it worthy of

such deference. Bledsoe, 133 F.3d at 823.

B. Ninth Circuit decision

In the other circuit court case addressing this issue, the

Court of Appeals for the Ninth Circuit reached the opposite

conclusion, ruling that Title II may not be used to bring an

employment discrimination case against a public entity. See

Zimmerman, 170 F.3d at 1169. While acknowledging that "most

courts have held that Title II applies to employment" by virtue

of the legislative history and the DOJ regulations, id. at 1183,

the Ninth Circuit concluded that the analysis never should have

gone that far, because "when viewed as a whole, the text,

context, and structure of the ADA show unambiguously that

7 Congress did not intend for Title II to apply to employment,"

thus foreclosing any review of extrinsic sources. Id. at 1178.

Starting with the text, the Ninth Circuit interpreted Title

11's phrase "services, programs, and activities" as referring

"only to the 'outputs' of a public agency, not to 'inputs' such

as employment." Id. at 1174. As for the "catch-all" phrase at

the end of Title II, the court concluded that it "relates back

to the same 'services, programs, or activities.'" Id. at 1175.

In support of this reading, the court noted that Title II's

heading is "Public Services" and that its definition of a

"gualified individual" is a disabled person who "meets the

essential eligibility reguirements for the receipt of services

or the participation in programs or activities provided by a

public entity." Id. (guoting 42 U.S.C. § 12131(2)). The reason

that Congress included the "catch-all" phrase, the court

surmised, is to target intentional discrimination, in contrast

to the preceding language, which targets de facto

discrimination. Id. at 1176.

Turning to the ADA's structure, the Ninth Circuit

emphasized that Title II says nothing about employment, whereas

Title I expressly covers employment discrimination by public

entities at the state and local level and imposes a number of

specific conditions on such claims, including a reguirement of administrative exhaustion (which does not apply to Title II) .

Id. at 1177-78. The court reasoned that if such claims could be

brought under Title II without satisfying those conditions, then

Title I would become "completely superfluous" in that regard.

Id. Moreover, the court noted that Congress tasked two

different agencies with implementing the two provisions--the

Egual Employment Opportunity Commission for Title I, the DOJ for

Title II--meaning that there would be a (presumably unintended)

risk of inconsistent regulation if both provisions covered

employment discrimination. Id.

Finally, the Ninth Circuit rejected the analogy between

Title II and section 504 of the Rehabilitation Act, noting that

the two provisions use slightly different language and have very

different contexts. Id. at 1180-81. Most notably, the

Rehabilitation Act does not contain a separate provision

relating to employment discrimination. Id. Indeed, after the

Supreme Court ruled in Darrone, supra, that section 504

encompassed employment discrimination, "Congress amended the

Rehabilitation Act to incorporate the employment provisions from

Title I of the ADA," not Title II, thereby undermining the

argument that Title II is linked to the Rehabilitation Act on

that issue. Id. at 1182-83 (citing 29 U.S.C. § 794(d)). The Ninth Circuit denied a request to rehear the case en

banc. See Zimmerman, 183 F.3d at 1161. Dissenting from that

denial. Judge Reinhardt argued that the panel's textual

interpretation was based on an "outputs/inputs" distinction that

appears nowhere in Title IT's text, id. at 1164, that the

panel's structural interpretation failed to acknowledge that

statutes frequently overlap, id. at 1166, and that Title IT's

language is "unquestionably broader" than section 504 of the

Rehabilitation Act, not narrower. Id. at 1163. At most, he

said, the panel's opinion suggests that there is a statutory

ambiguity, id. at 1162, in which case the legislative history

and the DOJ regulations both compel the conclusion that

employment discrimination claims may be brought under Title II.

Id. at 1167-68.

C. Supreme Court dicta

The Supreme Court has never addressed this issue on the

merits, but it briefly commented on the circuit split in the

following footnote from Garrett, 531 U.S. at 356:

[N]o party has briefed the question whether Title II of the ADA, dealing with the "services, programs, or activities of a public entity," 42 U.S.C. § 12132, is available for claims of employment discrimination when Title I of the ADA expressly deals with that subject. See, e.g., Russello v. United States, 464 U.S. 16, 23 (1983) ("[W]here Congress includes particular language

10 in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion"). The Courts of Appeals are divided on this issue, compare Zimmerman, 170 F.3d at 1169, with Bledsoe, 133 F.3d at 816. . . . To the extent the Court granted certiorari on the guestion whether respondents may sue their state employers for damages under Title II of the ADA, that portion of the writ is dismissed as improvidently granted.

Id. at 360 n.l. While obviously not conclusive, this passage

suggests that the Court was somewhat skeptical about using Title

II to bring employment discrimination claims expressly covered

by Title I .

D. First Circuit dicta

About a year after Garrett, the First Circuit reviewed a

case in which the lower court had endorsed the Ninth Circuit's

reasoning in Zimmerman, deeming Title II inapplicable to

employment discrimination claims as a matter of plain meaning.

See Currie, 290 F.3d at 1 (reviewing Currie v. Group Ins.

Comm'n, 147 F. Supp. 2d 30 (D. Mass. 2001)). While ultimately

staying the case on abstention grounds, the First Circuit

addressed the Title II issue briefly in dicta, guestioning the

lower court's reasoning:

11 The answer is not so plain. While Title I's language clearly covers employment discrimination, and public employers are not exempted from the definition of a covered entity. Title I says nothing about it being an exclusive remedy or avenue for suit. It is not unheard of for individuals to have overlapping rights, even within one Act. Here, the two Titles grant substantively different rights--for instance, while Title I gives successful plaintiffs the opportunity to obtain compensatory and punitive damages, there is no such right under Title II. Nor is the language of Title II clear on this guestion. The words "public services, programs, or activities" do not necessarily exclude employment, and the "subjected to discrimination" clause may broaden the scope of coverage further. Moreover, the Department of Justice has promulgated a regulation stating that Title II does cover employment practices. This regulation is entitled to deference under the Chevron doctrine if the statutory language is unclear. In addition, [the plaintiff] cites to legislative history which she says demonstrates that Congress intended Title II to cover employment and to function in the same manner as Section 504 of the Rehabilitation Act.

Id. at 6-7 (citations and footnotes omitted). The First Circuit

recently confirmed that the "law in this circuit remains unclear

as to whether Title II of the ADA even applies to claims of

employment discrimination." Carmona-Rivera v. Puerto Rico, 4 64

F.3d 14, 17 (1st Cir. 2006).

Ill. Conclusion

If asked to decide which interpretation of Title II is

better supported, this court would be more inclined to follow

the Ninth Circuit's reasoning in Zimmerman, which is based

12 primarily on textual methods of statutory construction, than the

Eleventh Circuit's reasoning in Bledsoe, which relies heavily on

extrinsic sources and overlooks a number of significant textual

cues (such as Title II's heading, its definition of a gualified

individual, its differences from Title I, and the overall

structure of the ADA). While both opinions make reasonable

arguments based on the statutory text and structure, the

stronger position seems to be that Title II cannot be used to

bring employment discrimination claims, which are expressly

covered by Title I and subject to restrictions not reflected in

Title II. Indeed, the Supreme Court's dicta in Garrett, 531

U.S. at 360 n.l, appears to reflect the same instinct.

But this court's task is not to decide which interpretation

is better supported; rather, it is to determine whether the

statute is clear on this issue and, if not, whether the DOJ's

interpretation of the statute as encompassing employment

discrimination claims is a reasonable resolution of the

statutory ambiguity. See Chevron, 467 U.S. at 842-43. The

First Circuit essentially answered that guestion in Currie,

where it stated that "the language of Title II [is not] clear on

this guestion" and arguably could be construed as extending to

employment. 2 90 F.3d at 6. Moreover, even without that First

Circuit dicta, the Eleventh Circuit's opinion in Bledsoe, Judge

13 Reinhardt's dissent in Zimmerman, and the many similar district

court decisions evince at least some measure of ambiguity.

Because the DOJ's interpretation of Title II reasonably resolves

that ambiguity, it is entitled to deference under the Chevron

doctrine. When that deference is accorded. Title II of the ADA

authorizes employment discrimination claims against public

entities.

For the reasons set forth above, Salem School District's

motion for judgment on the pleadings3 is DENIED.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: June 18, 2010

cc: Carol Skinner, pro se Debra Weiss Ford, Esq.

3Document no. 18.