McInerney v. Rensselaer Polytechnic Inst., No. 06-1746 (2d Cir. 2007)

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06-1746-cv McInerney v. Rensselaer Polytechnic Inst. 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 -------- 4 August Term, 2007 5 6 (Argued: September 27, 2007 Decided: October 15, 2007) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Docket No. 06-1746-cv -----------------------------------------------------------X JOSEPH P. McINERNEY, Plaintiff-Appellant, - v. RENSSELAER POLYTECHNIC INSTITUTE; THE MECHANICAL AERONAUTICAL NUCLEAR ENGINEERING DEPARTMENT OF RENSSELAER POLYTECHNIC INSTITUTE (MANE); MANE DEPARTMENT CHAIRMAN JOHN TICHY; MANE GRADUATE COORDINATOR ANTOINETTE MANIATTY; MANE PROFESSOR LEIK MYRABO; MANE PROFESSOR KENNETH JANSEN, Defendants-Appellees,* -----------------------------------------------------------X Before: McLAUGHLIN, RAGGI, Circuit Judges, and RAKOFF, DISTRICT JUDGE.** * The Clerk of the Court is directed to amend the official caption as set forth above. ** The Honorable Jed S. Rakoff of the United States District Court for the Southern District of New York, sitting by designation. 1 Plaintiff appeals from the dismissal of his complaint by the 2 United States District Court for the Northern District of New 3 York (Hurd, J.) for failure to exhaust administrative remedies. 4 VACATED AND REMANDED. 5 6 7 8 9 10 11 12 13 14 JOSEPH P. McINERNEY, Lowell, Massachusetts, pro se, PlaintiffAppellant. MICHAEL E. GINSBERG, Pattison, Sampson, Ginsberg & Griffin, P.C., Troy, New York, for DefendantsAppellees. PER CURIAM: 15 Joseph P. McInerney appeals from the dismissal of his 16 complaint by the United States District Court for the Northern 17 District of New York (Hurd, J.) for failure to exhaust 18 administrative remedies. 19 concluding that McInerney had an obligation to present his claims 20 under Titles III and V of the Americans with Disabilities Act of 21 1990 ( ADA ), 42 U.S.C. § 12101 et seq., to the Equal Employment 22 Opportunity Commission ( EEOC ) prior to suit, we VACATE the 23 district court s judgment of dismissal and REMAND. 24 25 Because the district court erred in BACKGROUND Joseph P. McInerney, pro se, who suffers from brain damage 26 and related symptoms as a result of a bacterial brain abscess, is 27 a Ph.D. candidate in the Mechanical Aeronautical Nuclear 28 Engineering ( MANE ) program at Rensselaer Polytechnic Institute 2 1 ( RPI ). 2 administrators in the MANE program (collectively, Defendants ) 3 failed to accommodate his disability and unlawfully retaliated 4 against him. He alleges that RPI and various professors and 5 McInerney alleges that Professor Leik Myrabo, who was 6 McInerney s thesis advisor, hired him as a research assistant in 7 August 2001. 8 several times to pay McInerney for his research assistance, 9 Myrabo revealed in April 2002 that he was unable to compensate Although McInerney says that Myrabo promised 10 McInerney even though he paid other graduate students who 11 performed research for him. 12 for McInerney in California with one of his former students. 13 McInerney turned it down, however, because his poor health would 14 not allow him to travel so far. 15 retaliated by, among other things, delaying a letter of 16 recommendation and approval of a scholarship application. 17 Myrabo proposed an alternative job He alleges that Myrabo Because of his difficulties with Professor Myrabo, McInerney 18 asked the MANE department to assign him a different thesis 19 advisor. 20 but told McInerney that Jansen would not be responsible for 21 funding McInerney s research. 22 financially assisted other graduate students whom he advised. 23 24 The MANE department assigned Professor Kenneth Jansen, According to McInerney, Jansen In April 2003, McInerney failed his doctoral candidacy exam because, he alleges, he was fatigued from his illness and was 3 1 asked ill posed and unreasonable questions. 2 explained this to John Tichy, chairman of the MANE department, 3 and asked him to speak with the professors who administered the 4 exam, Tichy allegedly told McInerney to stop using his disability 5 as an excuse. 6 When McInerney McInerney claims that he was denied further accommodations 7 between September 2003 and June 2004 when Professor Jansen 8 refused to provide McInerney with extra research assistance or 9 help McInerney find a tutor. In August 2004, the MANE department 10 also rejected McInerney s request to be assigned another thesis 11 advisor. 12 In October 2005, McInerney brought this action, alleging 13 violations of Titles III and V of the ADA and Section 504 of the 14 Rehabilitation Act of 1973, 29 U.S.C. § 794. 15 the district court dismissed the complaint in its entirety for 16 lack of jurisdiction because McInerney failed to exhaust his 17 claims with the EEOC or an appropriate state or local agency 18 prior to suit. 19 20 21 On March 24, 2006, McInerney now appeals. DISCUSSION Although the district court suggested it lacked jurisdiction 22 over the case, its dismissal for failure to exhaust 23 administrative remedies is more properly characterized as a 24 dismissal for failure to state a claim pursuant to Federal Rule 4 1 of Civil Procedure 12(b)(6). 2 45, 58 (2d Cir. 2006). 3 of a complaint pursuant to [Rule 12(b)(6)] de novo, accepting all 4 factual allegations in the complaint and drawing all reasonable 5 inferences in the plaintiff s favor. 6 Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). 7 draw all inferences in the plaintiff s favor has heightened 8 application when the plaintiff is proceeding pro se. 9 v. United States, 478 F.3d 489, 491 (2d Cir. 2007). 10 See Fernandez v. Chertoff, 471 F.3d We review a district court s dismissal ATSI Commc ns, Inc. v. The need to See Bertin Applying these standards, we agree with McInerney that the 11 district court erred in dismissing his complaint. 12 did not require administrative exhaustion. 13 His ADA claims Whether an ADA claim must first be presented to an 14 administrative agency depends on which precise title of the ADA 15 the claim invokes. 16 discriminating against disabled employees, see 42 U.S.C. § 17 12112(a), while Title III forbids discrimination on the basis of 18 disability in the full and equal enjoyment of the goods, 19 services, facilities, privileges, advantages, or accommodations 20 of any place of public accommodation, id. § 12182(a). 21 postgraduate private school, is doubtless a place of public 22 accommodation. 23 retaliation because of a person s opposition to any act or 24 practice that the ADA prohibits. Title I prohibits employers from See id. § 12181(7)(J). Title V proscribes See id. § 12203(a). 5 RPI, as a 1 ADA Title I incorporates various provisions from Title VII 2 of the landmark Civil Rights Act of 1964. 3 (incorporating [t]he powers, remedies, and procedures set forth 4 in [42 U.S.C.] sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 5 2000e-9"). 6 claimant to file a charge of employment discrimination with the 7 EEOC within 180 days after the discriminatory act. 8 2000e-5(e)(1). 9 however, is not found in ADA Title III. See id. § 12117(a) One of these provisions, section 2000e-5, requires a See id. § This administrative-exhaustion provision, Instead, ADA Title III 10 incorporates only § 2000a-3(a), see id. § 12188(a)(1), providing 11 for injunctive relief against certain discriminatory acts, see 12 id. § 2000a-3(a). 13 context require the same procedures as those under Title I, while 14 retaliation claims relating to public accommodations follow Title 15 III procedures. 16 require administrative exhaustion, Title V claims predicated on 17 asserting one s rights under Title III require no exhaustion 18 either. 19 Title V retaliation claims in the employment See id. § 12203(c). Thus, if Title III does not The language and structure of the ADA demonstrate that Title 20 III, unlike Title I, does not require administrative exhaustion. 21 [I]t is a general principle of statutory construction that when 22 Congress includes particular language in one section of a statute 23 but omits it in another section of the same Act, it is . . . 24 presumed that Congress acts intentionally and purposefuly . . . 6 1 . 2 (internal quotation marks omitted). 3 conclude that Congress intentionally omitted the exhaustion 4 requirement for public-accommodations claims, as it would make 5 little sense to require a plaintiff challenging discrimination in 6 public accommodations to file a charge with the EEOC, an agency 7 with responsibility for and expertise in matters of employment 8 discrimination. 9 we hold that there is no administrative-exhaustion requirement Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452 (2002) There is good reason to See 42 U.S.C. §§ 2000e-5(a)-(b). Accordingly, 10 for ADA Title III claims or Title V claims predicated on 11 asserting one s rights under Title III. 12 In defending the judgment of dismissal, Defendants argue 13 that McInerney s allegations concerning his work as a research 14 assistant arise under Title I. 15 whether such work qualifies as employment for purposes of the 16 ADA a question not addressed by the district court because the 17 complaint contains ample Title III-based allegations. 18 example, McInerney alleges that Defendants failed: (1) to appoint 19 him an adequate thesis advisor, (2) to assist him with funding 20 for his research as they did for other students, (3) to provide 21 extra instruction or a tutor, and (4) to accommodate his 22 disability at or after his doctoral candidacy exam. 23 court therefore erred by dismissing McInerney s ADA claims for 24 failure to exhaust administrative remedies. However, we need not resolve 7 For The district 1 Finally, McInerney s brief on appeal challenges only the 2 dismissal of his ADA claims, making no mention of his claims 3 under Section 504 of the Rehabilitation Act of 1973. 4 Accordingly, we treat any possible challenge to the dismissal of 5 the latter claims as waived. 6 114, 117 (2d Cir. 1998) ( Issues not sufficiently argued in the 7 briefs are considered waived and normally will not be addressed 8 on appeal. ). 9 10 See Norton v. Sam s Club, 145 F.3d CONCLUSION For the foregoing reasons, we VACATE the judgment of 11 dismissal and REMAND the case to the district court with 12 instructions to reinstate the complaint, limited to McInerney s 13 ADA claims. 14 McInerney s supplemental exhibits are DENIED as moot. The parties motions to accept and to strike 8

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