C. v. New York State and Local Retir

Filing 110

BRIEF, on behalf of Appellee Central Islip Public Library, FILED. Service date 11/21/2011 by CM/ECF. [453628] [11-2215]

11-2215-CV
IN THE

United States Court of Appeals
FOR THE SECOND CIRCUIT

MARY JO C.,
Plaintiff-Appellant,
v.

NEW YORK STATE AND LOCAL RETIREMENT SYSTEM,
CENTRAL ISLIP PUBLIC LIBRARY,
Defendants-Appellees.

On Appeal from the United States District Court
for the Eastern District of New York (Central Islip)

BRIEF FOR DEFENDANT-APPELLEE
CENTRAL ISLIP PUBLIC LIBRARY

RIVKIN RADLER LLP
Of Counsel:

William M. Savino
Harris J. Zakarin
Laura L. Shockley

Attorneys for Defendant-Appellee
Central Islip Public Library

926 RXR Plaza
West Tower, Ninth Floor
Uniondale, New York 11556
516-357-3000

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ............................................................................ iii
PRELIMINARY STATEMENT ...................................................................... 1
QUESTION PRESENTED ............................................................................... 2
WHETHER THE DISTRICT COURT PROPERLY
CONCLUDED THAT, BASED ON THE TEXT AND
STRUCTURE OF THE ADA, AS WELL AS WELLREASONED PRECEDENT, PLAINTIFF’S TITLE II
EMPLOYMENT CLAIMS REQUIRE DISMISSAL
INASMUCH AS SUCH CLAIMS MAY ONLY BE
ASSERTED UNDER TITLE I? ............................................................. 2
STATEMENT OF THE CASE ......................................................................... 2
STATEMENT OF FACTS ............................................................................... 3
A.

Plaintiff’s Complaint .................................................................... 3

B.

The Library’s Motion To Dismiss ................................................ 6

C.

Plaintiff’s Opposition ................................................................... 8

D.

The Library’s Reply ..................................................................... 8

E.

The District Court’s Opinion And Order ..................................... 10

SUMMARY OF ARGUMENT ........................................................................ 11

i

ARGUMENT .................................................................................................... 13
THE DISTRICT COURT PROPERLY DISMISSED
PLAINTIFF’S
COMPLAINT
AGAINST
THE
LIBRARY
BECAUSE
HER
EMPLOYMENTRELATED DISCRIMINATION CLAIMS ARE NOT
COGNIZABLE UNDER TITLE II OF THE ADA ............................... 13
A.

General Legal Principles .............................................................. 13

B.

Plaintiff’s
Exclusive
Remedy
For
Her
Employment-Related Discrimination Claims Lies
Within Title I Of The ADA .......................................................... 15
1.
2.

Only Title I of the ADA Addresses
Employment Discrimination Claims ................................. 17

3.

Title II of the ADA Redresses Access To
Public Services, Not Employment ..................................... 19

4.

C.

Overview Of The ADA ...................................................... 16

Despite A Split in Authority, The
Overwhelming Majority of Courts Within
this Circuit Have Concluded That Claims,
Such As Those Asserted By Plaintiff, Can
Only Be Asserted under Title I .......................................... 20

Plaintiff’s Arguments Do Not Compel A Different
Result ............................................................................................ 23
1.

Plaintiff Construes The Language in
Innovative Health Systems Too Broadly ........................... 24

2.

The DOJ’s Regulations Do Not Withstand a
Chevron Analysis ............................................................... 25

CONCLUSION ................................................................................................. 30
CERTIFICATE OF COMPLIANCE ................................................................ 31
ii

TABLE OF AUTHORITIES
Page(s)
CASES
Arizona Pub. Serv. Co. v. EPA,
211 F.3d 1280 (D.C. Cir. 2000), cert. denied, 532 U.S. 970 (2001) .................. 26
Ashcroft v. Iqbal,
556 U.S. 662, 129 S. Ct. 1937 (2009)................................................................. 13
Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007) ............................................................................................ 14
Bledsoe v. Palm Beach County Soil and Water Conservation District,
133 F.3d 816 (11th Cir.), cert. denied, 525 U.S. 826 (1998) .........................21, 24
Bloom v. New York City Board of Education,
2003 U.S. Dist. LEXIS 5290 (S.D.N.Y. April 2, 2003) ..................................... 23
Board of Trustees of University of Alabama v. Garrett,
531 U.S. 356 (2001) ..........................................................................18, 19, 22, 25
Brown v. State of Connecticut,
2010 U.S. Dist. LEXIS 52871 (D. Conn. May 27, 2010) .................................. 22
Chapman v. New York State Div. for Youth,
546 F.3d 230 (2d Cir. 2008), cert. denied sub. nom, Handle With Care
Behavior Mgmt. Sys. v. New York State Div. for Youth, 130 S. Ct. 552
(2009) ............................................................................................................13, 14
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984) ............................................................................................ 26
Cormier v. City of Meriden,
2004 U.S. Dist. LEXIS 21104 (D. Conn. Sept. 30, 2004) .................................. 22
Currie v. Group Ins. Commission,
290 F.3d 1 (1st Cir. 2002) .................................................................................... 21
Davoll v. Webb,
194 F.3d 1116 (10th Cir. 1999) ........................................................................... 22

iii

Filush v. Town of Weston,
266 F. Supp.2d 322 (D. Conn. 2003) .................................................................. 22
Fleming v. State University of New York,
502 F. Supp.2d 324 (E.D.N.Y. 2007) .....................................................22, 28, 29
Fulton v. Commissioner Glen S. Goord,
591 F.3d 37 (2d Cir. 2009) ................................................................................. 14
Hargrave v. State of Vermont,
340 F.3d 27 (2d Cir. 2003) ................................................................................. 14
Harris v. Mills,
572 F.3d 66 (2d Cir. 2009) .....................................................................19, 25, 28
Henrietta D. v. Bloomberg,
331 F.3d 261 (2d Cir. 2003), cert. denied, 541 U.S. 936 (2004)........................ 17
Innovative Health Systems, Inc. v. City of White Plains,
117 F.3d 37 (2d Cir. 1997) ...........................................................................24, 25
Lavia v. Commonwealth of Pennsylvania,
224 F.3d 190 (3d Cir. 2000) ............................................................................... 21
Li v. Renaud,
654 F.3d 376 (2d Cir. 2011) ............................................................................... 26
Melrose v. New York State Department of Health Office of Professional
Medical Conduct,
2008 U.S. Dist. LEXIS 123180 (S.D.N.Y. Dec. 12, 2008) ................................ 22
Nartelli v. VESID Office,
420 Fed. Appx. 53 (2d Cir. 2011) (summary order)........................................... 14
Olson v. State of New York,
2005 U.S. Dist. LEXIS 44929 (E.D.N.Y. March 9, 2005) ................................. 22
PGA Tour, Inc. v. Martin,
532 U.S. 661 (2001) ............................................................................................ 17
Powell v. National Board of Medical Examiners,
364 F.3d 79 (2d Cir. 2004) .....................................................................19, 25, 28

iv

Reddick v. Southern Connecticut State University,
2011 U.S. Dist. LEXIS 50728 (D. Conn. May 12, 2011) .................................. 22
Ruotolo v. City of New York,
514 F.3d 184 (2d Cir. 2008) ............................................................................... 13
Russello v. United States,
464 U.S. 16 (1983) .............................................................................................. 19
Scherman v. New York State Banking Dep’t,
2010 U.S. Dist. LEXIS 26288 (S.D.N.Y. March 19, 2010) ............................... 22
Staats v. County of Sawyer,
220 F.3d 511 (7th Cir. 2000) ............................................................................... 22
State of Tennessee v. Lane,
541 U.S. 509 (2004) ............................................................................................ 17
Sworn v. Western New York Children’s Psychiatric Center,
269 F. Supp.2d 152 (W.D.N.Y. 2003) ................................................................ 22
Syken v. State of New York, Executive Department, Division Of Housing
And Community Renewal,
2003 U.S. Dist. LEXIS 5358 (S.D.N.Y. April 2, 2003) ..................................... 22
Transportation Workers Union of America, Local 100, AFL-CIO v. New
York City Transit Auth.,
342 F. Supp.2d 160 (S.D.N.Y. 2004) ................................................................. 23
Vietnam Ass’n for Victims of Agent Orange v. Dow Chemical Co.,
517 F.3d 104 (2d Cir. 2008), cert. denied, 555 U.S. 1218 (2009)...................... 13
Whitfield v. State of Tennessee,
639 F.3d 253 (6th Cir. 2011) ............................................................................... 21
Winokur v. Office of Court Administration,
190 F. Supp.2d 444 (E.D.N.Y. 2002) ................................................................. 23
Zimmerman v. State of Oregon Department of Justice,
170 F.3d 1169 (9th Cir. 1999), cert. denied, 531 U.S. 1189 (2001).............passim

v

STATUTES
42 U.S.C. § 12101 .................................................................................................... 16
42 U.S.C. § 12111 (8) ........................................................................................18, 28
42 U.S.C. § 12112 (a) ........................................................................................18, 23
42 U.S.C. § 12116 ..............................................................................................18, 29
42 U.S.C. § 12131 (2) .............................................................................................. 28
42 U.S.C. § 12132 .................................................................................................... 14
42 U.S.C. § 12134 ..............................................................................................18, 29
New York Retirement and Social Security Law (“NYRSSL”) § 605 (b) (2)............ 4
New York State Executive Law § 296...........................................................2, 3, 6, 8
Rehabilitation Act of 1973 ....................................................................................... 29
OTHER AUTHORITIES
28 C.F.R. § 35.140 (a) .............................................................................................. 26
Eleventh Amendment ................................................................................................. 6
Fed. R. Civ. Pro. 12 (b) (6) ......................................................................1, 11, 13, 23
Rule 12 (b) (6) of the Federal Rules of Civil Procedure............................................ 6
Rule 12 (b) (1) and Rule 12 (b) (6) ............................................................................ 6

vi

PRELIMINARY STATEMENT
In this action commenced pursuant to Title II of the Americans with
Disabilities Act (the “ADA”), Defendant-appellee Central Islip Public Library (the
“Library”) respectfully submits this brief in opposition to the appeal by plaintiffappellant Mary Jo C. (“plaintiff”) seeking the reversal of the judgment of the
District Court (Feuerstein, J.), dated May 6, 2011, that granted the Library’s
motion, pursuant to Fed. R. Civ. Pro. 12 (b) (6), dismissing the complaint as
against it.
As demonstrated below, the dismissal of plaintiff’s action must be affirmed.
Plaintiff, who had been an employee of the Library, alleged that the Library failed
to provide her with reasonable accommodations by refusing to file a disability
retirement application on her behalf and by denying her request to reclassify the
termination of her employment as a leave of absence. These claims of purported
employment-based discrimination are only cognizable under Title I of the ADA.
Plaintiff, however, commenced her action pursuant to Title II of the ADA,
requiring dismissal of her complaint.
Although neither the Supreme Court nor this Court have squarely addressed
this issue, recent decisions, as well as the language, text and structure of the ADA,
all demonstrate that plaintiff’s exclusive remedy lies within Title I of the ADA. As
a result, the District Court properly dismissed the complaint as against the Library.

QUESTION PRESENTED
WHETHER THE DISTRICT COURT PROPERLY
CONCLUDED THAT, BASED ON THE TEXT AND
STRUCTURE OF THE ADA, AS WELL AS WELLREASONED PRECEDENT, PLAINTIFF’S TITLE II
EMPLOYMENT CLAIMS REQUIRE DISMISSAL
INASMUCH AS SUCH CLAIMS MAY ONLY BE
ASSERTED UNDER TITLE I?
This question should be answered in the affirmative.
STATEMENT OF THE CASE
Following the termination of her employment with the Library, plaintiff
untimely filed an application for disability retirement benefits with defendantappellee New York State and Local Retirement System (the “State Retirement
System”). After the State Retirement System denied her request to waive the filing
deadline, plaintiff commenced the instant action pursuant to Title II of the ADA
against the Library and against the State Retirement System. Plaintiff also asserted
claims against the Library premised on New York State Executive Law § 296.
As against the Library, plaintiff alleged that it failed to provide her with a
requested reasonable accommodation by refusing to file a disability retirement
application on her behalf and by denying her request to reclassify the termination
of her employment as a leave of absence. As against the State Retirement System,
plaintiff alleged that, despite the fact that her disability retirement application was

2

statutorily late, it should have provided her a reasonable accommodation by
waiving the statutory deadline.
Both the Library and the State Retirement System moved to dismiss
plaintiff’s complaint.

The District Court granted the motions, resulting in a

judgment dismissing the complaint. Plaintiff appeals.
STATEMENT OF FACTS
A.

Plaintiff’s Complaint
On December 23, 2009, plaintiff commenced this action pursuant to Title II

of the ADA against the Library and against the State Retirement System (A35A46).1 Plaintiff also asserted state law claims against the Library premised on
New York State Executive Law § 296.
As alleged in her complaint, plaintiff has suffered from mental illness since
adolescence (A38).

Between 1986 and November 2006, plaintiff worked

intermittently for various libraries on Long Island (A38). Beginning in January
1988, plaintiff became a member of the State Retirement System (A38).
According to her complaint, an application for disability retirement benefits may
be made by an employee who is eligible to receive such benefits and the

Numbers in parentheses preceded by “A” refer to pages in the Joint
Appendix.
1

3

application must be made within three months of the last date of employment
(A38).2
Plaintiff alleged that, “[a]s a result of behaviors that were symptomatic of
her mental illness, the [Library] fired [her] in November 2006” and that her last
date of work was on or about November 12, 2006 (A38-A39). She further alleged
that, under New York State law, she would have been eligible for disability
retirement benefits upon timely filing an application within three months from her
last day of work (A39). According to her complaint, plaintiff, because of her
mental illness, “failed to recognize that state law required her to file her retirement
benefits application within three months of her last day of employment” (A39).
Plaintiff further alleged that, during the three-month period of time during
which an application for disability benefits could be filed, her brother attempted to
assist her in obtaining the benefits (A39). In particular, she alleged that her brother
spoke to the director of the State Retirement System who advised that the Library
could file an application for disability retirement benefits on plaintiff’s behalf
(A39). Plaintiff alleged that her brother asked the Library to file an application for
retirement benefits on plaintiff’s behalf and that the Library denied the request

New York Retirement and Social Security Law (“NYRSSL”) § 605 (b) (2)
requires that the application for benefits be filed “within three months from the last
date the member was being paid on the payroll….”
2

4

(A40). Plaintiff’s brother asked the Library, in the alternative, to reclassify her
termination as an unpaid leave of absence and that request, too, was denied (A40).
Plaintiff alleged that her condition improved in November 2007 and that, at
that point, she applied for disability retirement benefits (A40).

The State

Retirement System denied the application on the ground that plaintiff failed to
timely file her application within three months of her last date of employment
(A40). On July 28, 2008, plaintiff requested an accommodation under the ADA
from the State Retirement System, seeking a waiver of the filing deadline (A41).
According to plaintiff’s complaint, the State Retirement System never
formally responded to her request for an accommodation (A41).

Plaintiff

administratively appealed the denial of her retirement claim and the denial of her
disability retirement claim was affirmed (A41).
Plaintiff alleged that the failures of the State Retirement System and the
Library to provide her with the requested accommodations resulted in the loss of
substantial amounts of retirement benefits to which she otherwise would have been
entitled (A42).
Based on these factual allegations, plaintiff alleged that the Library failed to
provide requested reasonable accommodations to her and violated the ADA by: (i)
failing to file a disability retirement application on her behalf; and (ii) failing to
reclassify her termination as a leave of absence (A42-43). Plaintiff further alleged

5

that the Library violated New York Executive Law § 296 by failing to provide the
alleged requested accommodations (A43-A44). As against the State Retirement
System, plaintiff alleged that it violated the ADA by failing to waive the statutory
timeframe for the filing of disability retirement benefits (A42). Plaintiff sought
declaratory and injunctive relief. She also sought monetary damages against the
Library, but only if the court determined that the waiver of the filing deadline
would constitute an undue burden for the State Retirement System (A44-A46).
B.

The Library’s Motion To Dismiss
By notice of motion dated May 28, 2010, the Library moved, pursuant to

Rule 12 (b) (6) of the Federal Rules of Civil Procedure, to dismiss plaintiff’s
complaint based on her failure to state a claim upon which relief could be granted
(A66-67, A68-84).3 In particular, the Library argued that, in order to state a claim
under Title II of the ADA, a plaintiff is required to, among other things, establish
that she is being excluded from participation in, or being denied the benefits of
some service, program or activity by reason of her disability (A77-A79). Stated
otherwise, the Library maintained that the alleged actions in refusing to file a
By separate notice of motion dated April 20, 2010, the State Retirement
System moved, pursuant to Rule 12 (b) (1) and Rule 12 (b) (6), to dismiss
plaintiff’s complaint (A47-A48). The State Retirement System maintained that the
court lacked subject matter jurisdiction over this action since plaintiff lacked
standing to sue and because the Eleventh Amendment bars plaintiff’s claims (A55A60). The State Retirement System further argued that plaintiff’s ADA Title II
claim failed to state a claim because the State Retirement System had no discretion
to waive a statutory filing deadline (A60-A64).
3

6

disability retirement application on plaintiff’s behalf and in refusing to classify
plaintiff’s termination as a leave of absence were not services that the Library
offered to the public at large but, rather, were benefits that she received as a result
of her employment with the Library (A77-A79). Thus, the Library argued that
plaintiff’s alleged entitlement to retirement disability benefits can only be asserted
in her capacity as a prior employee and not in her capacity as a member of the
general public as is required to state a claim under Title II of the ADA.
In this regard, the Library argued that plaintiff failed to state a claim
pursuant to Title II of the ADA because Title I is the exclusive remedy for a claim
of disability discrimination in the employment context (A79-A82). The Library
addressed four reasons why a Title II claim could not be recognized in the
employment context. The Library argued that: (i) Title I of the ADA is the only
title in the Act that specifically addresses employment (A79-A80); (ii) Title I and
Title II offer different definitions for a “qualified individual” and for an “entity”
(A80); (iii) the procedural requirements of Title I, which place a time limitation on
claims, would be eviscerated by the application of Title II to employment
discrimination (A81-A82); and (iv) Congress delegated regulatory authority for
Title I and Title II to different agencies (A82).

7

For the same reasons warranting dismissal of plaintiff’s ADA claims, the
Library argued that plaintiff failed to state a claim under New York Executive Law
§ 296 (A82-A83).
C.

Plaintiff’s Opposition
Plaintiff opposed the Library’s motion and maintained that Title II of the

ADA protects individuals from discriminatory conduct by state and local
governments in the employment setting (A105-09). Plaintiff maintained that a
split in case law authority exists on this issue and, despite the fact that Title I deals
exclusively with employment-related claims, argued that her employment-related
ADA claim could fall within the parameters of Title II of the ADA. Plaintiff
further argued that the Library failed to provide a reasonable accommodation by
denying her request to file the application for disability retirement benefits on her
behalf (A109-11).4 Plaintiff agreed with the Library’s position that the standards
governing discrimination under New York Executive Law § 296 do not differ from
the standards under the ADA (A89 n. 1).
D.

The Library’s Reply
In reply, the Library maintained that plaintiff’s claims relate to her prior

employment with the Library and should have been asserted in an employmentrelated claim under Title I of the ADA and not Title II of the ADA (A126-A139).
In the same memorandum of law, plaintiff opposed the State Retirement
System’s motion to dismiss.
4

8

In particular, the Library argued that plaintiff failed to refute the fact that she has
not been denied access to a public service program or activity offered by the
Library and, therefore, cannot state a claim under Title II of the ADA (A131A132). In addition, the Library argued that plaintiff never filed an administrative
complaint with the Equal Employment Opportunity Commission (“EEOC”) or any
other state or local agency, as would be required in order to bring a claim for
employment discrimination under Title I of the ADA (A132). The Library further
maintained that, unlike Title I, Title II does not require plaintiff to exhaust her
administrative remedies and, therefore, her employment discrimination claim
should have been brought pursuant to Title I, requiring dismissal of her Title II
claims (A133).
The Library also acknowledged the split in authority on the issue of whether
an employment-related ADA claim could be stated under Title II, but maintained
that the more recent and persuasive authority from the courts within this Circuit
holds that a Title II claim cannot be stated under such circumstances (A132-A138).
The Library reiterated its position that the state claims likewise require
dismissal since, as even plaintiff acknowledged, they are governed by the same
legal standards (A138).

9

E.

The District Court’s Opinion And Order
By opinion and order dated May 5, 2011, the District Court granted both the

Library’s and the State Retirement System’s respective motions and dismissed
plaintiff’s complaint (A9-A34). In the first instance, the District Court found that
plaintiff’s complaint failed to sufficiently allege that she has a “disability” within
the meaning of the ADA and, as a result, her complaint failed to state a cognizable
claim under Title II of the ADA (A22, A29 n.7). Recognizing that it would be
possible for plaintiff to amend her Title II claims to sufficiently allege this element
and also acknowledging that the Library assumed that she was disabled for
purposes of this motion, the District Court addressed the merits of the motion and
analyzed the issue substantively (A29-A33).
After analyzing the issue and reviewing relevant case law, including case
law from the Supreme Court, and acknowledging the split in authority, the District
Court determined that Title I of the ADA is the exclusive remedy for plaintiff’s
claims of discrimination against the Library (A32). In particular, the court held
that:
Based upon the well-reasoned decisions of the
most recent district court cases in this Circuit, as
well as the aforementioned language in the
Supreme Court cases, I find that Title I of the
ADA is the exclusive remedy for plaintiff’s claims
of discrimination against the Library, all of which
relate to the “terms, conditions, and privileges of
[her] employment” with that entity. 42 USC §
10

12112 (a). Accordingly, plaintiff’s Title II ADA
claims against the Library (second and third causes
of action) are dismissed with prejudice pursuant to
Rule 12 (b) (6) for failure to state a claim.
(A32-A33).
Regarding the state law claims, the District Court declined to exercise
supplemental jurisdiction over them and dismissed them (A33-A34).
Judgment dismissing the complaint followed (A8). Plaintiff appeals (A7).
SUMMARY OF ARGUMENT
The District Court properly granted the Library’s motion to dismiss. The
structure and text of the ADA establish that employment-related claims must be
brought under Title I. The ADA is compartmentalized with each Title addressing a
particular area of discrimination. Title I, for example, is entitled “employment”
and addresses discrimination in the employment context. Title II, entitled “public
services,” addresses access to “services, programs, or activities.” The Supreme
Court has likewise noted the compartmentalized nature in which the ADA is
organized, noting that it forbids discrimination against persons with disabilities in
particular areas of public life, with employment falling within Title I.
In addition, the text of the ADA underscores that only Title I of the ADA
addresses employment discrimination.

Both in its general rule forbidding

discrimination and its definition of a qualified individual, Title I of the ADA
speaks specifically to the issue of employment. Neither Title II nor any other Title
11

of the ADA addresses employment. While the Supreme Court has not squarely
addressed this issue, its discussion of the issue in a recent case suggests that Title I
of the ADA would be the exclusive remedy for an employment-related claim.
As it relates specifically to Title II, this Court has held that it prohibits
discrimination against persons with disabilities in connection with access to public
services. Plaintiff’s complaint in this action recounts alleged discrimination for the
Library’s failure to provide her with a reasonable accommodation in connection
with her employment.

It does not allege that she was denied access to the

Library’s services as a member of the general public. In short, her complaint does
not state a claim under Title II of the ADA.
Although this Court has not addressed this issue, there currently exists a split
between various Circuit Courts of Appeals. Within this Circuit, the overwhelming
majority of the district courts have held that a plaintiff cannot state an
employment-related ADA claim within Title II.
Accordingly, as will be discussed more fully below, the District Court
properly dismissed plaintiff’s complaint for failure to state a claim.

12

ARGUMENT
THE DISTRICT COURT PROPERLY DISMISSED
PLAINTIFF’S COMPLAINT AGAINST THE
LIBRARY BECAUSE HER EMPLOYMENTRELATED DISCRIMINATION CLAIMS ARE NOT
COGNIZABLE UNDER TITLE II OF THE ADA
A.

General Legal Principles
A motion to dismiss for failure to state a claim pursuant to Rule 12 (b) (6)

tests the legal facial sufficiency of the complaint. This Court conducts de novo
review of the District Court’s dismissal of a complaint pursuant to Rule 12 (b) (6).
See, Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008); Chapman v.
New York State Div. for Youth, 546 F.3d 230, 235 (2d Cir. 2008), cert. denied
sub. nom, Handle With Care Behavior Mgmt. Sys. v. New York State Div. for
Youth, 130 S. Ct. 552 (2009). In this context, this Court accepts all factual
allegations in the complaint as true, and draws reasonable inferences in the light
most favorable to the plaintiff. See, e.g., Vietnam Ass’n for Victims of Agent
Orange v. Dow Chemical Co., 517 F.3d 104, 115 (2d Cir. 2008), cert. denied, 555
U.S. 1218 (2009).

Although the allegations contained in the complaint are

assumed to be true, this tenet is “inapplicable to legal conclusions.” Ashcroft v.
Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009). In order to survive a motion to
dismiss, “[f]actual allegations must be enough to raise a right to relief above the

13

speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007);
Chapman, 546 F.3d at 235.
Title II of the ADA provides, in part, that:
No qualified individual with a disability shall, by
reason of such disability, be excluded from
participation in or be denied the benefits of the
services, programs, or activities of a public entity,
or be subjected to discrimination by any such
entity.
42 U.S.C. § 12132.
In order to state a claim under Title II of the ADA, a plaintiff must
demonstrate that: (i) he or she is a qualified individual with a disability; (ii) he or
she is being excluded from participation in, or being denied the benefits of some
public service, program or activity; and (iii) the exclusion or discrimination was
due to his or her disability. See, Fulton v. Commissioner Glen S. Goord, 591 F.3d
37, 43 (2d Cir. 2009); Hargrave v. State of Vermont, 340 F.3d 27, 34-35 (2d Cir.
2003); see also, Nartelli v. VESID Office, 420 Fed. Appx. 53, 54-55 (2d Cir. 2011)
(summary order).
As will be demonstrated below, plaintiff cannot state a claim under Title II
of the ADA because she cannot demonstrate that the benefit to which she was
allegedly entitled was a service, program or activity that the Library provides to the

14

general public.5 Stated otherwise, inasmuch as the alleged denial of benefits owed
by the Library arose out of plaintiff’s prior employment with the Library, and not
out of her use and enjoyment of the Library as a member of the general public,
plaintiff cannot state a viable claim under Title II of the ADA. Rather, as will be
addressed below, plaintiff’s exclusive remedy is found within Title I of the ADA.
B.

Plaintiff’s Exclusive Remedy For Her Employment-Related
Discrimination Claims Lies Within Title I Of The ADA
Plaintiff’s complaint against the Library requires dismissal since the

exclusive remedy for her employment-related discrimination claims lies within
Title I of the ADA. Title II of the ADA, under which she brought suit, only
proscribes discrimination in connection with access to public services and,
therefore, the District Court properly dismissed her complaint. Several reasons
compel this result, including: (i) an overview of the structure of the ADA; (ii) Title
I of the ADA is the only Title within the Act to discuss the subject of employmentrelated discrimination; and (iii) Title II of the ADA address the general public’s

The Library conceded for purposes of the motion that plaintiff qualifies as
an individual with a disability within the meaning of the ADA and further
conceded that the Library is a public entity that provides services, programs and
activities to the public. Despite these concessions, the District Court, among other
reasons for dismissing plaintiff’s complaint, found that her complaint failed to
allege facts sufficient to establish that she was an individual with a disability (A13A14, A29 n. 7). Nevertheless, because it would be possible for plaintiff to amend
her complaint to sufficiently plead this element, the District Court determined that
any such amendment would be futile because plaintiff’s claims could only be
stated under Title I of the ADA.
5

15

access to public services, not employment. In addition, although there is a circuitsplit on this issue, the overwhelming majority of district courts in this Circuit have
concluded that Title I is the exclusive avenue to redress employment-related
claims. Each of these arguments will be addressed below.
1.

Overview Of The ADA

When Congress enacted the ADA, it recognized that discrimination against
persons with disabilities is evident in many areas. In particular, in outlining its
findings, Congress noted that “discrimination against individuals with disabilities
persists in such critical areas as employment, housing, public accommodations,
education, transportation, communication, recreation, institutionalism, health
services, voting and access to public services.” 42 U.S.C. § 12101.
To redress the various categories of discrimination against individuals with
disabilities, Congress enacted separate subchapters or Titles prohibiting
discrimination in particular areas. For example, Title I of the ADA is entitled
“Employment;” Title II of the ADA is entitled “Public Services;” and Title III of
the ADA is entitled “Public Accommodations and Services Operated by Private
Entities.”
The Supreme Court has likewise noted the compartmentalized manner in
which the ADA is organized. In particular, the Supreme Court characterized the
ADA as “forbid[ing] discrimination against persons with disabilities in three major

16

areas of public life: employment, which is covered by Title I of the statute; public
services, programs and activities, which are the subject of Title II; and public
accommodations, which are the subject of Title III.” State of Tennessee v. Lane,
541 U.S. 509, 516-17 (2004); see also, PGA Tour, Inc. v. Martin, 532 U.S. 661,
675 (2001) (holding that “[t]o effectuate its sweeping purpose, the ADA forbids
discrimination against disabled individuals in major areas of public life, among
them employment (Title I of the Act), public services (Title II), and public
accommodations (Title III)”).

This Court, too, has recognized the separate

categories of discrimination proscribed by the ADA.

See, Henrietta D. v.

Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003), cert. denied, 541 U.S. 936 (2004)
(noting that the ADA in “[i]ts first three titles proscribe discrimination against
individuals with disabilities in employment and hiring (Title I), access to public
services (Title II), and public accommodations (Title III)”).
Given the overview of the ADA and the manner in which each of the types
of discrimination are classified, it is clear that plaintiff’s claims against the Library
- - her former employer - - fall within Title I of the ADA, entitled “Employment.”
2.

Only Title I of the ADA Addresses Employment
Discrimination Claims

Pursuant to Title I, “[n]o covered entity shall discriminate against a qualified
individual on the basis of disability in regard to job application procedures, the
hiring, advancement, or discharge of employees, employee compensation, job
17

training, and other terms, conditions, and privileges of employment.” 42 U.S.C. §
12112 (a). Likewise, as defined in Title I, a “qualified individual” means an
individual who, “with or without reasonable accommodation, can perform the
essential functions of the employment position that such individual holds or
desires.” 42 U.S.C. § 12111 (8). In a similar vein, Congress charged the EEOC
with regulating Title I (42 U.S.C. § 12116), while the Attorney General is charged
with regulating Title II (42 U.S.C. § 12134).6 No other Title of the ADA addresses
employment-related discrimination issues.
Although not squarely addressed by the Supreme Court, language in its case
law suggests that employment-related discrimination claims can only be stated
under Title I of the ADA. While not directly addressing the issue, the Supreme
Court noted that Title I of the ADA “expressly deals with the subject.” Board of
Trustees of University of Alabama v. Garrett, 531 U.S. 356, 360 n.1 (2001). In so
noting, the Supreme Court referenced the axiom that, “‘[w]here Congress includes
particular language 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 addition, as will be addressed in more detail later in this brief, if public
employees could pursue their employment claims under Title II, it would render
Congress’ efforts to include protections for employees in Title I superfluous and
would permit them to avoid Title I’s procedural requirements, such as exhaustion
of administrative remedies. See, Zimmerman v. State of Oregon Department of
Justice, 170 F.3d 1169, 1177 (9th Cir. 1999), cert. denied, 531 U.S. 1189 (2001).
These circumstances further evidence that Title I was designed to exclusively
redress employment-related ADA claims.
6

18

in the disparate inclusion or exclusion.’” Id., quoting Russello v. United States,
464 U.S. 16, 23 (1983).
Thus, because Congress chose to specifically include employment-related
disability discrimination claims in Title I, but omitted such claims in other sections
of the same Act, it can be presumed that Title I, and only Title I, is the appropriate
avenue in which to seek redress for such claims of discrimination.
3.

Title II of the ADA Redresses Access To Public
Services, Not Employment

As it relates to Title II of the ADA, this Court has held that, “Title II of the
Act proscribes discrimination against the disabled in access to public services.”
Harris v. Mills, 572 F.3d 66, 73 (2d Cir. 2009); Powell v. National Board of
Medical Examiners, 364 F.3d 79, 84 (2d Cir. 2004). Title II of the ADA prohibits
“discrimination against qualified disabled individuals by requiring that they
receive ‘reasonable accommodations’ that permit them to have access to and take a
meaningful part in public services and public accommodations.” Powell, 364 F.3d
at 85. As the “paradigmatic example” of a Title II ADA claim, this Court refers to
“a person who must use a wheelchair to access the courts - - a citizen is entitled to
access the court system irrespective of whether he or she can walk.” Harris, 572
F.3d at 74.
Here, a review of plaintiff’s allegations against the Library demonstrate
that they arise not out of the public services that the Library provides to members
19

of the general public but, instead, arise out of the employee-employer relationship
that existed between them. Notably, in asserting her claims, plaintiff alleged that,
under New York law, an application for disability retirement benefits may be made
by an employee who is eligible for benefits, or by the head of the department at
which the employee is employed (A38). She further alleged that the application
for disability retirement benefits must be made from the last date of employment
(A38). Plaintiff alleged that the Library failed to provide requested reasonable
accommodations to her and violated the ADA by: (i) by failing to file a disability
retirement application on her behalf; and (ii) failing to reclassify her termination as
a leave of absence (A42-43).
These allegations do not amount to “services, programs, or activities” within
the meaning of Title II of the ADA of which plaintiff was deprived access. Rather,
plaintiff’s purported ADA claims fall within the category of alleged discrimination
against individuals with disabilities in employment, falling within the category of
Title I of the ADA. As a result, plaintiff has failed to state a claim pursuant to
Title II of the ADA.
4.

Despite A Split in Authority, The Overwhelming
Majority of Courts Within this Circuit Have
Concluded That Claims, Such As Those Asserted By
Plaintiff, Can Only Be Asserted under Title I

At least two Circuit Courts of Appeals have squarely addressed this issue
and have reached opposite conclusions. Compare, Zimmerman v. State of Oregon
20

Department of Justice, 170 F.3d 1169 (9th Cir. 1999), cert. denied 531 U.S. 1189
(2001) (holding that Title II of the ADA does not apply to claims of employment
discrimination); with, Bledsoe v. Palm Beach County Soil and Water Conservation
District, 133 F.3d 816 (11th Cir.), cert. denied, 525 U.S. 826 (1998) (holding that
Title II of the ADA does state a claim for employment discrimination). This Court
has not squarely addressed the issue.
In Zimmerman, the Ninth Circuit held that Title II of the ADA does not
apply to claims of employment discrimination. In reaching that conclusion, the
court reviewed the text and structure of the ADA and concluded that employmentrelated claims fall exclusively within the ambit of Title I.
This Court has never addressed the issue.7 The district courts within this
Circuit have reached divergent results. However, since the time that the Supreme
Court decided Garrett with its commentary that Title I expressly deals with
employment-related claims, the district courts within this Circuit have

Other circuits, too, have declined to reach the issue. See, e.g., Currie v.
Group Ins. Commission, 290 F.3d 1 (1st Cir. 2002) (noting divergent results, but
declining to decide the issue); Lavia v. Commonwealth of Pennsylvania, 224 F.3d
190, 195 n.2 (3d Cir. 2000) (noting split in authority, but declining to address
issue); Whitfield v. State of Tennessee, 639 F.3d 253, 258 (6th Cir. 2011) (noting
that the court had never decided whether Title II of the ADA applies to
employment cases and declining to do so in this case); Staats v. County of Sawyer,
220 F.3d 511, 518 (7th Cir. 2000) (noting that the court had never addressed the
issue and declining to do so without it being squarely presented); Davoll v. Webb,
194 F.3d 1116, 1128-29 (10th Cir. 1999) (declining to address whether Title II
covers employment actions).
7

21

overwhelmingly held that claims of discrimination in employment are not
cognizable under Title II of the ADA. See, e.g., Reddick v. Southern Connecticut
State University, 2011 U.S. Dist. LEXIS 50728 (D. Conn. May 12, 2011); Brown
v. State of Connecticut, 2010 U.S. Dist. LEXIS 52871 (D. Conn. May 27, 2010);
Scherman v. New York State Banking Dep’t, 2010 U.S. Dist. LEXIS 26288
(S.D.N.Y. March 19, 2010); Melrose v. New York State Department of Health
Office of Professional Medical Conduct, 2008 U.S. Dist. LEXIS 123180 (S.D.N.Y.
Dec. 12, 2008); Fleming v. State University of New York, 502 F. Supp.2d 324
(E.D.N.Y. 2007); Cormier v. City of Meriden, 2004 U.S. Dist. LEXIS 21104 (D.
Conn. Sept. 30, 2004); Sworn v. Western New York Children’s Psychiatric Center,
269 F. Supp.2d 152 (W.D.N.Y. 2003); Filush v. Town of Weston, 266 F. Supp.2d
322 (D. Conn. 2003); Syken v. State of New York, Executive Department,
Division Of Housing And Community Renewal, 2003 U.S. Dist. LEXIS 5358
(S.D.N.Y. April 2, 2003); but see, Olson v. State of New York, 2005 U.S. Dist.
LEXIS 44929 (E.D.N.Y. March 9, 2005); Transportation Workers Union of
America, Local 100, AFL-CIO v. New York City Transit Auth., 342 F. Supp.2d
160 (S.D.N.Y. 2004); Bloom v. New York City Board of Education, 2003 U.S.
Dist. LEXIS 5290 (S.D.N.Y. April 2, 2003); Winokur v. Office of Court
Administration, 190 F. Supp.2d 444 (E.D.N.Y. 2002).

22

The courts that have held that Title I is the exclusive avenue to redress
employment-related discrimination claims focused on the text and structure of the
ADA and generally followed the Ninth Circuit in Zimmerman. The District Court
in this case agreed. In particular, the court held that:
Based upon the well-reasoned decisions of the most
recent district court cases in this Circuit, as well as the
aforementioned language in the Supreme Court cases, I
find that Title I of the ADA is the exclusive remedy for
plaintiff’s claims of discrimination against the Library,
all of which relate to the “terms, conditions, and
privileges of [her] employment” with that entity. 42 USC
§ 12112 (a). Accordingly, plaintiff’s Title II ADA claims
against the Library (second and third causes of action) are
dismissed with prejudice pursuant to Rule 12 (b) (6) for
failure to state a claim.
(A32-A33).
Given the foregoing, plaintiff’s Title II claims were properly dismissed.
C.

Plaintiff’s Arguments Do Not Compel A Different Result
Plaintiff raises two arguments in support of her position that Title II

encompasses employment-related claims.8 Plaintiff’s arguments rest primarily on
the reasoning employed by the Eleventh Circuit in Bledsoe. First, plaintiff
maintains that Title II of the ADA should be broadly construed to encompass all
discrimination-related claims and relies on this Court’s decision in Innovative
Health Systems, Inc. v. City of White Plains, 117 F.3d 37 (2d Cir. 1997) to support
Similar arguments are raised by amici curiae and for the reasons addressed
in this brief, those arguments are unavailing.
8

23

her argument.

Second, plaintiff argues that the existence of regulations

promulgated by the Department of Justice (“DOJ”) support the existence of
employment-discrimination claims in the context of Title II of the ADA. Both
arguments are easily rejected.
1.

Plaintiff Construes The Language in Innovative
Health Systems Too Broadly

In Innovative Health Systems, this Court characterized Title II as a “catchall” that prohibits all types of discrimination by a public entity regardless of
context. Id., at 45. Innovative Health Systems is inapposite for several reasons.
Initially, that case had nothing to do with claims of employment discrimination.
Rather, it concerned a challenge to an allegedly discriminatory zoning decision and
the issue was whether the zoning decisions were “programs, services, or activities”
that would be covered by Title II.
In addition, Innovative Health Systems pre-dates the Supreme Court’s
decision in Garrett. As highlighted earlier, Garrett suggests that Title I is the
exclusive avenue to redress ADA employment discrimination claims. In that same
vein, the more recent cases from this Court likewise suggest that Title II is much
narrower than Innovative Health portrays it to be.

Notably, this Court has

described Title II of the ADA as prohibiting “discrimination against qualified
disabled individuals by requiring that they receive ‘reasonable accommodations’
that permit them to have access to and take a meaningful part in public services
24

and public accommodations.” Powell, 364 F.3d at 85. As a classic example of a
Title II claim, this Court refers to “a person who must use a wheelchair to access
the courts - - a citizen is entitled to access the court system irrespective of whether
he or she can walk.” Harris, 572 F.3d at 74.
Thus, upon analysis, Innovative Health Systems, despite its seemingly broad
language, does not support a conclusion that an employment-related claim can be
stated pursuant to Title II of the ADA.
2.

The DOJ’s Regulations Do Not Withstand a Chevron
Analysis

Plaintiff’s second argument is likewise unavailing.

The DOJ has

promulgated regulations suggesting that an employment discrimination claim can
be stated within the context of Title II of the ADA. See, 28 C.F.R. § 35.140 (a)
(stating that “[n]o qualified individual with a disability shall, on the basis of
disability, be subjected to discrimination in employment under any service,
program, or activity conducted by a public entity”).

Applying the Supreme

Court’s analysis in Chevron U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984), the DOJ’s regulation is contrary to the plain wording
and structure of the ADA and is not entitled to deference.
Pursuant to Chevron, the first question is always whether “Congress has
directly spoken to the precise question at issue. If the intent of Congress is clear,
that is the end of the matter, for the court, as well as the agency, must give effect to
25

the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-43;
see, Li v. Renaud, 654 F.3d 376 (2d Cir. 2011). In determining whether Congress
has directly spoken to the issue, “a reviewing court must first exhaust ‘the
traditional tools of statutory construction…. If, in light of its text, legislative
history, structure, and purpose, a statute is found to be plain in its meaning, then
Congress has expressed its intention as to the question, and deference is not
appropriate.’” Li, 654 F.3d, quoting Arizona Pub. Serv. Co. v. EPA, 211 F.3d
1280, 1287 (D.C. Cir. 2000), cert. denied, 532 U.S. 970 (2001).
Here, as addressed earlier, upon a review of the plain text and structure of
the ADA, it is clear that Congress has expressed its intent that Title II of the ADA
is not the proper forum to redress claims of employment discrimination and that
Title I is the exclusive avenue for relief. In Zimmerman, for example, the court
reviewed the plain language of Title II and concluded that “employment by a
public entity is not commonly thought of as a ‘service, program, or activity of a
public entity.’” Zimmerman, 170 F.3d at 1174. To reach that logical conclusion,
the court presented an analogy and questioned how a public entity and a member
of the public would describe the services of that public entity:
Consider, for example, how a Parks Department would
answer the question, “What are the services, programs,
and activities of the Parks Department?” It might answer,
“We operate a swimming pool; we lead nature walks; we
maintain playgrounds.” It would not answer, “We buy
lawnmowers and hire people to operate them.” The latter
26

is a means to deliver the services, programs, and
activities of the hypothetical Parks Department, but it is
not itself a service, program, or activity of the Parks
Department.
Similarly, consider how a member of the public would
answer the question, “What are the services, programs,
and activities of the Parks Department in which you want
to participate, or whose benefits you seek to receive?”
The individual might answer, “I want to participate in the
Wednesday night basketball league, or find out about the
free children's programs for the summer months.”
The individual would not logically answer, “I want to go
to work for the Parks Department.”
Id.
Thus, as the court in Zimmerman concluded, the wording of Title II of the
ADA does nothing to suggest that it would apply to employment. As stated by that
court, “[o]btaining or retaining a job is not ‘the receipt of services,’ nor is
employment a ‘program[] or activity provided by a public entity.” Id., at 1176. To
be sure, this Court, in its description of Title II likewise suggests that Title II’s
application is limited to preventing discrimination against the disabled “in access
to public services.” Harris v. Mills, 572 F.3d 66, 73 (2d Cir. 2009); Powell v.
National Board of Medical Examiners, 364 F.3d 79, 84 (2d Cir. 2004).
Employment discrimination claims, therefore, are simply not part of the text or
meaning of Title II.
The text, structure and procedure of the various Titles of the ADA further
highlight that employment related claims can only be heard in the context of Title
27

I. For example, “only Title I specifically addresses employment, while Title II is
‘devoid of any employment provisions.’” Fleming, 502 F. Supp.2d at 331, quoting
Zimmerman, 170 F.3d at 1176.

Critically, in defining the term “qualified

individual with a disability,” Title I specifically makes reference to a disabled
person’s ability to perform the functions of an employment position, while Title II
makes no reference at all to employment. Compare, 42 U.S.C. § 12111 (8); with,
42 U.S.C. § 12131 (2).
In addition, Congress charged different agencies with implementing the
various Titles of the ADA.

Notably, the Equal Employment Opportunity

Commission is charged with regulating Title I (42 U.S.C. § 12116), while the
Attorney General is charged with regulating Title II (42 U.S.C. § 12134).
Likewise, if public employees could pursue their employment claims under
Title II, it would render Congress’ efforts to include protections for employees in
Title I superfluous. See, Zimmerman, 170 F.3d at 1177. Similarly, allowing
public employees to seek redress under Title II would permit them to avoid Title
I’s procedural requirements, such as exhaustion of administrative remedies. Id.
Moreover, Congress linked the Rehabilitation Act of 1973, which governs
employment, with Title I of the ADA, rather than linking it with Title II. Id., at
1178; Fleming, 502 F. Supp.2d at 331.

28

Given the foregoing, the text and structure of the ADA reveals that
employment related discrimination claims fall exclusively within the ambit of Title
I of the ADA.

Accordingly, the District Court properly dismissed plaintiff’s

claims as against the Library, as they were all based on Title II of the ADA.9

For similar reasons, the District Court properly declined to exercise
supplemental jurisdiction over the state law claims and dismissed them.
9

29

CONCLUSION
For all of the foregoing reasons, the judgment of the District Court
(Feuerstein, J.), dated May 6, 2011, should be affirmed, with costs.
Dated:

Uniondale, New York
November 18, 2011
Respectfully submitted,
RIVKIN RADLER LLP
Attorneys for Defendant-Appellee
CENTRAL ISLIP PUBLIC LIBRARY
By: ______________________________________
William M. Savino (WMS 5778)
Harris J. Zakarin (HJZ 8742)
926 RXR Plaza
Uniondale, New York 11556-0926
[phone]

Of Counsel: William M. Savino
Harris J. Zakarin
Laura L. Shockley

30

CERTIFICATE OF COMPLIANCE WITH FRAP 32(a)
This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because this brief contains 6,800 words, excluding the parts of the
brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
This brief complies with the typeface requirements of Fed. R. App. P.
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brief has been prepared in a proportionally spaced typeface using Microsoft©
Word in Times New Roman, 14 point font.
Dated:

Uniondale, New York
November 18, 2011
Respectfully submitted,
RIVKIN RADLER LLP
Attorneys for Defendant-Appellee
CENTRAL ISLIP PUBLIC LIBRARY
By: ______________________________________
William M. Savino (WMS 5778)
Harris J. Zakarin (HJZ 8742)
926 RXR Plaza
Uniondale, New York 11556-0926
[phone]

2546126 v1

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