Josephine Okwu v. Cindy McKim, et al
FILED OPINION (STEPHEN R. REINHARDT, RICHARD R. CLIFTON and N. RANDY SMITH) AFFIRMED. Judge: RRC Authoring,. FILED AND ENTERED JUDGMENT. 
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CINDY MCKIM; JUDITH SMITH; DAVE
SCHAEFER; ANNE STAUSBOLL; PETER
H. MIXON; RORY J. COFFEY; DONNA
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Argued and Submitted
May 14, 2012—San Francisco, California
Filed June 12, 2012
Before: Stephen Reinhardt, Richard R. Clifton, and
N. Randy Smith, Circuit Judges.
Opinion by Judge Clifton
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Herman Franck (argued), Elizabeth Vogel, Franck & Associates, Sacramento California, for the appellant.
D. Gregory Valenza, Shaw Valenza LLP, San Francisco, California, for appellees Anne Stausboll, Peter H. Mixon, Rory J.
Coffey, and Donna Ramel Lum.
Navtej Bassi, State of California Department of Transportation, for appellees Cindy McKim, Judith Smith, and Dave
CLIFTON, Circuit Judge:
This appeal presents the issue of whether a state employee
may sue state officers under 42 U.S.C. § 1983 for alleged violations of Title I of the Americans with Disabilities Act, 42
U.S.C. §§ 12111-12117. The defendants in this case determined that Plaintiff Josephine Okwu’s psychological disor-
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ders made her unfit for reinstatement from disability retirement to active service with the California Department of
Transportation (“Caltrans”). Okwu alleges that this decision
deprived her of her right to a reasonable accommodation
under the ADA and to the equal protection of the laws under
the Fourteenth Amendment. We conclude that Congress’s
inclusion of a comprehensive remedial scheme in Title I of
the ADA precludes § 1983 claims predicated on alleged violations of ADA Title I substantive rights. We also conclude that
Okwu’s allegations of fact do not state a claim under the
Equal Protection Clause. We therefore affirm.
Okwu suffers from severe psychological disorders, including bipolar disorder, psychosis, and schizoaffective disorder.
These disorders led to strife between Okwu and Caltrans, her
employer. Caltrans wanted to terminate Okwu’s employment;
Okwu alleged that she had been improperly passed over for
promotion and harassed. As part of a negotiated settlement of
this conflict, Okwu applied for and received disability retirement status from the California Public Employees Retirement
The settlement allowed Okwu to seek reinstatement to
active employment. Okwu did, and a new round of administrative proceedings followed, culminating in a 2008 hearing
before a California administrative law judge. Based on testimony from Okwu and several doctors, the ALJ decided that
despite Okwu’s praiseworthy “efforts to gain control of her
illness,” Okwu “remain[ed] substantially incapacitated from
the performance of her usual and customary duties” as a Caltrans Accounting Officer. The CalPERS Board of Administration adopted the ALJ’s decision.
Okwu challenged this decision in state court, but that effort
was ultimately unsuccessful. She also wanted to sue CalPERS
and Caltrans in federal court under the ADA, but she believed
OKWU v. MCKIM
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the Eleventh Amendment prevented her from doing so.
Accordingly, she instead brought claims under § 1983 for
deprivation of ADA and Equal Protection rights against the
defendants, each of whom is an employee of CalPERS or Caltrans alleged to have participated in the denial of Okwu’s
request for reinstatement. Okwu sought both money damages
and injunctive and declaratory relief.
The district court held that Okwu’s complaint failed to state
a claim on which relief might be granted, and dismissed with
prejudice under Rule 12(b)(6). Okwu appealed to this court.
We review de novo the district court’s dismissal of a complaint for failure to state a claim. AE ex rel. Hernandez v.
Cnty. of Tulare, 666 F.3d 631, 636 (9th Cir. 2012). We review
for abuse of discretion a district court’s decision to dismiss
with prejudice. Id. at 636, 638. We conclude that the district
court did not err in dismissing Okwu’s complaint and did not
abuse its discretion by doing so without giving Okwu an
opportunity to amend.
 “An alleged violation of federal law may not be vindicated under § 1983 . . . where . . . ‘Congress has foreclosed
citizen enforcement in the enactment itself, either explicitly,
or implicitly by imbuing it with its own comprehensive remedial scheme.’ ” Vinson v. Thomas, 288 F.3d 1145, 1155 (9th
Cir. 2002) (quoting Buckley v. City of Redding, 66 F.3d 188,
190 (9th Cir.1995)); see Wilder v. Virginia Hosp. Ass’n, 496
U.S. 498, 520-21 (1990). By including a comprehensive
remedial scheme in Title I of the ADA, Congress foreclosed
the § 1983 claims Okwu brought in this case.
In Vinson, we held that the remedial scheme of Title II of
the ADA1 was comprehensive enough to foreclose § 1983
Title II prohibits disability-based discrimination by public entities in
the provision of public services. 42 U.S.C. § 12132. Title I prohibits
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actions. 288 F.3d at 1156. We observed that Congress drafted
Title II-specific enforcement mechanisms and civil remedies.
Id. (citing Alsbrook v. City of Maumelle, 184 F.3d 999, 1011
(8th Cir. 1999) (en banc)). We reasoned that the specificity
and comprehensiveness of these remedies suggested that Congress intended the Title II remedial scheme to be the exclusive
means by which a party could vindicate his Title II ADA
rights, and that allowing the plaintiff to use the more general
§ 1983 remedial scheme instead would be contrary to Congress’s intent. Id. We therefore concluded that the plaintiff’s
§ 1983 claims were barred. Id.
In Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d 1051,
1054 (9th Cir. 2009), we similarly held that the remedial
scheme in the Age Discrimination in Employment Act
(ADEA) foreclosed § 1983 claims based on ADEA violations.
As in Vinson, we reasoned that the nature of the remedial provisions in the ADEA “demonstrate[d] Congressional intent to
preclude the remedy of suits under § 1983.” Id. at 1057 (quoting Middlesex Cnty. Sewerage Auth. v. Nat’l Sea Clammers
Ass’n, 453 U.S. 1, 19-20 (1981)). We further reasoned that if
a violation of substantive rights under the ADEA could be
asserted via a § 1983 action, plaintiffs would be able to make
an end run around the ADEA scheme’s specific, complex procedural provisions. Id. (citing Zombro v. Baltimore City
Police Dep’t, 868 F.2d 1364, 1366 (4th Cir.1989)). This is a
result Congress did not intend. Accordingly, we concluded
that a § 1983 claim may not be predicated on the rights protected by the ADEA. Id. at 1054.
 Okwu’s § 1983 claims differ from the § 1983 claim this
court rejected in Vinson in that Okwu’s claims are based on
disability-based discrimination by employers, requiring them, in certain
circumstances, to make reasonable accommodations for disabled employees. 42 U.S.C. § 12112. Okwu raised only a Title I claim, not a Title II
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Title I of the ADA (which prohibits disability discrimination
in employment), not Title II (which prohibits disability discrimination in the provision of public services). Each of the
two titles includes a remedial scheme that allows private parties to file actions for damages, injunctive relief, and attorney’s fees in certain enumerated circumstances. 42 U.S.C.
§§ 12117, 12133.2 But while both titles purport to authorize
damages against state governments, only Title II abrogates a
state’s Eleventh Amendment immunity. Tennessee v. Lane,
541 U.S. 509, 533-34 (2004); Bd. of Tr. of the Univ. Of Ala.
v. Garret, 531 U.S. 356, 360 (2001); Phiffer v. Columbia
River Corr. Inst., 384 F.3d 791, 792-93 (9th Cir. 2004). That
means that a state employee like Okwu, unlike the consumer
of state public services in Vinson, cannot use the ADA remedial scheme to vindicate his or her ADA rights.3 Okwu argues
that she should therefore be allowed to sue under § 1983
We have already decided, however, that a state’s immunity
from suit does not mean that a plaintiff may use § 1983 as a
substitute for an otherwise-comprehensive remedial scheme.
Ahlmeyer, 555 F.3d at 1060. In Ahlmeyer, as in this case, the
Supreme Court had struck down the part of the relevant remedial scheme that allowed plaintiffs to sue states, Kimel v.
Section 12133 incorporates “[t]he remedies, procedures, and rights set
forth in section 794a of Title 29.” Section 794a in turn incorporates “[t]he
remedies, procedures and rights” set forth in Title VI of the Civil Rights
Act of 1964, including 42 U.S.C. § 2000e-5(g)(1). Section 12117 also
incorporates the remedies and procedures set forth in 42 U.S.C. § 2000e5(g)(1). Section 1981 of Title 42 expands the remedies set forth in 42
U.S.C. § 2000e-5(g)(1) to include compensatory and punitive damages in
State employees are not left without any remedy against disability discrimination, however. Garret, 531 U.S. at 374 n. 9. For example, California’s Fair Employment and Housing Act, Cal. Gov’t Code §§ 1290012996, allows public employees to sue the state in state court for disability
discrimination. Schifando v. City of Los Angeles, 79 P.3d 569, 573-74
(Cal. 2003). State employees may also seek relief from disability discrimination under California’s Civil Service Act, Cal. Gov’t Code § 19702. Id.
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Florida Bd. of Regents, 528 U.S. 62, 91 (2000), leaving the
plaintiff without the means of vindicating her ADEA rights in
federal court. Ahlmeyer, 555 F.3d at 1060. This court reasoned, however, that “courts must analyze the comprehensiveness of a statute — and its corresponding preclusion of
other remedies — as it was originally written,” not as subsequently altered by the courts’ constitutional review. Id. (citing
Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 75-76 (1996)).
When Congress originally wrote the ADEA’s remedial provisions, Congress intended it to be comprehensive enough to
preclude ADEA-based § 1983 suits. Id. The fact that the
courts subsequently defanged part of that comprehensive
scheme did nothing to change this preclusive intent. Id.
Accordingly, the plaintiff could not sue state officials under
§ 1983 based on deprivation of her ADEA rights.
 The same reasoning applies here. By drafting a comprehensive remedial scheme for employer’s violations of
ADA Title I, Congress manifested an intent to preclude
§ 1983 remedies. See 42 U.S.C. § 12117. The Supreme
Court’s subsequent decision that this scheme did not validly
abrogate the states’ Eleventh Amendment immunity, Garret,
531 U.S. at 360, did nothing to change that intent. We are not
free to interpret § 1983 in a way that provides a substitute
remedy that Congress never provided. Seminole Tribe, 517
U.S. at 76. Accordingly, we must affirm the district court’s
conclusion that Okwu cannot state a § 1983 claim predicated
on violations of Title I of the ADA.
 We also affirm the district court’s conclusion that
Okwu’s complaint fails to state a § 1983 claim based on
deprivation of her rights under the Equal Protection Clause of
the Fourteenth Amendment. Okwu did not allege that any of
the defendants treated any similarly-situated individual differently. She argued that she is a “class of one,” but that theory
is not available in the public employment context. Engquist v.
Or. Dep’t of Agric., 553 U.S. 591, 609 (2008). And even if
Okwu could identify disparate treatment, this court must
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affirm state disability-based employment decisions as long as
the decisions are supported by a rational basis. Garret, 531
U.S. at 368 (“States are not required by the Fourteenth
Amendment to make special accommodations for the disabled, so long as their actions toward such individuals are
rational.”). Caltrans and CalPERS’ decision not to reinstate
Okwu was rationally based on the state’s determination that
Okwu’s psychological disorders prevented her from fulfilling
her former duties.
 Finally, Okwu has not identified any amendment consistent with the facts she has already alleged that would give
her a viable claim.4 We therefore conclude that the district
court’s decision to dismiss with prejudice without giving
Okwu another opportunity to amend was not an abuse of discretion.
Okwu has waived the argument that she should be allowed to amend
her complaint to re-style some of her § 1983 claims as claims for injunctive relief under the ADA itself brought against the directors of Caltrans
and CalPERS in their official capacity under the Ex Parte Young exception to the Eleventh Amendment. See Garret, 531 U.S. at 374 n. 9; Walsh
v. Nev. Dep’t of Human Res., 471 F.3d 1033 (9th Cir. 2006). She did not
make that argument to the district court or in either of her briefs on appeal.
We therefore express no opinion on its legal viability.
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