Mary Jo C. v. New York State and Local Retirement Sys., No. 11-2215 (2d Cir. 2013)

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Plaintiff sued her employer, alleging violations of Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. 12131 et seq. Plaintiff alleged that her job as a librarian at the Library was terminated because of behavior symptomatic of her chronic mental illness. Because the court concluded that Title II did, in some circumstances, require reasonable departures from standards established by state laws, the court vacated the district court's judgment of dismissal in that respect. Because the court concluded, based principally on the structure of the ADA, that Title II did not apply to employment discrimination, the court affirmed the district court's judgment of dismissal of that claim.

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11-2215 Mary Jo C. v. New York State and Local Retirement System et ano. 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2011 4 (Argued: May 3, 2012 Decided: January 29, 2013) 5 Docket No. 11-2215 6 ------------------------------------- 7 MARY JO C., 8 Plaintiff-Appellant, 9 - v - 10 11 NEW YORK STATE AND LOCAL RETIREMENT SYSTEM, CENTRAL ISLIP PUBLIC LIBRARY, 12 Defendants-Appellees. 13 ------------------------------------- 14 15 16 17 Before: SACK, RAGGI, Circuit Judges, and SWAIN, District Judge.* 18 States District Court for the Eastern District of New York 19 (Sandra J. Feuerstein, Judge) dismissing the plaintiff's claims 20 pursuant to Federal Rules of Civil Procedure 12(b)(1) and 21 12(b)(6). 22 of the Americans with Disabilities Act does not require state 23 actors to violate state laws as a "reasonable modification" under 24 the Act, and that Title II does not apply to employment Appeal by the plaintiff from a judgment of the United * The district court concluded principally that Title II The Honorable Laura Taylor Swain, United States District Judge for the Southern District of New York, sitting by designation. 1 discrimination. 2 circumstances, require reasonable departures from standards 3 established by state laws, we vacate the district court's 4 judgment of dismissal in that respect. 5 based principally on the structure of the Americans with 6 Disabilities Act, that Title II does not apply to employment 7 discrimination, we affirm the district court's judgment of 8 dismissal of that claim. 9 Because we conclude that Title II does, in some Because we conclude, Affirmed in part; vacated and remanded in part. 10 11 12 13 WILLIAM M. BROOKS, Mental Disability Law Clinic, Touro College, Jacob D. Fuchsberg Law Center, Central Islip, NY, for Plaintiff-Appellant. 14 15 16 17 18 19 20 21 22 CECELIA C. CHANG, Deputy Solicitor General, (Barbara D. Underwood, Solicitor General, Laura R. Johnson, Assistant Solicitor General, of counsel, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, New York, NY, for DefendantAppellee New York State and Local Retirement System. 23 24 25 26 27 LAURA L. SHOCKLEY, (William M. Savino, Harris J. Zakarin, on the brief), Rivkin Radler LLP, Uniondale, NY, for Defendant-Appellee Central Islip Public Library. 28 29 30 31 32 33 34 SASHA SAMBERG-CHAMPION, (Jessica Dunsay Silver, on the brief), Department of Justice, Civil Rights Division, Appellate Section, for Thomas E. Perez, Assistant Attorney General, Washington, DC, for Amicus Curiae United States Department of Justice. 35 36 37 38 Jo Anne Simon, Jo Anne Simon P.C., Brooklyn, NY, for Amici Curiae Disability Advocates, Inc., DRVT, National Disability Rights Network, and 2 1 2 3 4 State of Connecticut Office of Protection and Advocacy for Persons with Disabilities. SACK, Circuit Judge: 5 The plaintiff alleges that her job as a librarian at 6 the Central Islip Public Library (the "Library") was terminated 7 because of behavior symptomatic of her chronic mental illness. 8 Although she alleges that she would have been eligible for 9 disability retirement benefits under New York State law, her 10 mental illness interfered with her ability to comply with New 11 York State law's strictly enforced filing deadline for those 12 benefits. 13 (the "NYSLRS") rejected her request to waive the deadline, and 14 when the Library rejected her request to assist her in applying 15 or extending the deadline by reclassifying her termination as a 16 leave of absence, the plaintiff was denied those benefits. 17 When the New York State and Local Retirement System Thereafter, the plaintiff instituted this lawsuit in 18 the United States District Court for the Eastern District of New 19 York against the NYSLRS and the Library alleging, inter alia, 20 that the defendants' actions violated Title II of the Americans 21 with Disabilities Act ("ADA"), Pub. L. No. 101-336, 104 Stat. 22 327, 327-28 (1990), 42 U.S.C. §§ 12131, et seq. 23 court (Sandra J. Feuerstein, Judge) granted the defendants' 24 motion to dismiss because the court concluded principally that 25 Title II of the Americans with Disabilities Act does not require 26 modifications of mandatory requirements imposed by state laws, 27 and that Title II does not apply to employment discrimination. 3 The district 1 For the reasons set forth below, the district court's 2 judgment of dismissal is vacated as to the plaintiff's Title II 3 claim against the NYSLRS. 4 to the district court to grant the plaintiff leave to amend her 5 complaint if she so wishes to allege facts supporting her claim 6 that she was disabled, and to attempt to state a claim invoking 7 the rule of Ex parte Young, 209 U.S. 123 (1908), and to conduct 8 further proceedings as warranted. 9 of dismissal is affirmed as to the plaintiff's Title II claim The case is remanded with instructions The district court's judgment 10 against the Library. 11 exercise supplemental jurisdiction over the plaintiff's state law 12 claims is vacated for reconsideration depending on the course of 13 the further proceedings contemplated by this opinion. 14 15 The district court's decision to decline to BACKGROUND Because this is an appeal from the district court's 16 grant of the defendants' motion to dismiss, we state the facts as 17 drawn from the complaint of the plaintiff "Mary Jo C." -- 18 "accepting all well-pleaded allegations in the complaint as true 19 and drawing all reasonable inferences in the plaintiff's favor," 20 Bigio v. Coca Cola Co., 675 F.3d 163, 169 (2d Cir. 2012) 21 (internal quotation marks and brackets omitted) - and as drawn 22 from matters of which we may take judicial notice, see Tellabs, 23 Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) 24 ("[C]ourts must consider the complaint in its entirety, as well 25 as other sources . . . , in particular, documents incorporated 4 1 into the complaint by reference, and matters of which a court may 2 take judicial notice."); ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 3 493 F.3d 87, 98 (2d Cir. 2007) ("[W]e may consider . . . 4 documents possessed by or known to the plaintiff and upon which 5 it relied in bringing the suit."). 6 The plaintiff is a "57[-]year-old individual who has 7 suffered from mental illness since adolescence." Complaint ¶ 12, 8 Mary Jo C. v. New York State and Local Ret. Sys., No. 09 Cv. 5635 9 (E.D.N.Y. Dec. 23, 2009) ("Compl."). She was employed by various 10 Long Island libraries between 1986 and November 2006, becoming a 11 member of defendant NYSLRS in January 1988. 12 working for the Library, her employment was terminated in 13 November 2006 "[a]s a result of behaviors that were symptomatic 14 of her mental illness." 15 Library was on or about November 12, 2006. 16 termination, "libraries in Suffolk County communicated among 17 themselves and agreed that [the plaintiff] should not be hired as 18 a librarian." 19 libraries "blackballed [her] from working in the public library 20 system in Suffolk County," "it is a virtual certainty that [she] 21 will never work again." 22 Id. ¶ 40. Id. ¶ 16. Id. ¶¶ 13-14. While Her last day of work at the Id. ¶ 17. After her The plaintiff asserts that because the Id. ¶¶ 40-41. In some circumstances, New York provides disability 23 retirement benefits for members of the NYSLRS who are "physically 24 or mentally incapacitated for the performance of gainful 25 employment." See N.Y. Ret. and Soc. Sec. Law § 605(b)(1), 5 1 (b)(3)(c). 2 been eligible for disability retirement benefits under New York 3 law had she filed an application with the NYSLRS within three 4 months of her last day of employment. 5 "failed to recognize" the filing deadline "because of her mental 6 illness." 7 According to the Complaint, the plaintiff would have Compl. ¶¶ 18-19. But she Id. ¶ 20. During the three-month period following her 8 termination, the plaintiff's brother spoke to an NYSLRS official, 9 who informed him that the Library could file an application on 10 the plaintiff's behalf. 11 2007, the plaintiff's brother asked the Library to do so, but the 12 Library denied the request. 13 brother then asked the Library to reclassify the plaintiff's 14 termination as an unpaid leave of absence, which would have 15 extended the time during which the plaintiff could file for 16 benefits, see N.Y. Ret. and Soc. Sec. Law § 605(b)(2), but the 17 Library refused to do that too. 18 Id. ¶¶ 21-24. On or about February 11, Id. ¶¶ 25-26. The plaintiff's Compl. ¶¶ 27-29. The plaintiff's condition improved in November 2007, 19 and she applied for disability retirement benefits. 20 The NYSLRS denied the application because it was not filed within 21 three months of the plaintiff's last day of work. 22 or about July 23, 2008, the plaintiff requested that the NYSLRS 23 waive the filing deadline as an accommodation under the ADA. 24 NYSLRS did not respond. Id. ¶¶ 32-33. 6 Id. ¶ 30. Id. ¶ 31. On The 1 While awaiting the NYSLRS's response, the plaintiff's 2 brother received notice that the plaintiff could appeal the 3 denial of her disability retirement benefits application, and the 4 plaintiff did so. 5 hearing officer that state law prohibited it from waiving the 6 filing deadline for any reason. 7 agreed, denying the plaintiff's appeal because there was no 8 "provision for an extension of the filing deadline" under the 9 applicable state statutes and regulations. 10 Id. ¶¶ 34-35. The NYSLRS argued before the Id. ¶ 36. The hearing officer Id. ¶¶ 37-38. Thereafter, on December 23, 2009, the plaintiff brought 11 the instant action in the United States District Court for the 12 Eastern District of New York against the NYSLRS and the Library. 13 The complaint alleges that (1) the NYSLRS violated the ADA by 14 failing to "provide a requested reasonable accommodation" by 15 waiving the filing deadline, (2) the Library violated the ADA and 16 New York Executive Law section 296 by failing to file an 17 application on the plaintiff's behalf, and (3) the Library 18 violated the ADA and New York Executive Law section 296 by 19 failing to reclassify the plaintiff's termination as a leave of 20 absence. 21 declaratory judgments, an injunction requiring the NYSLRS to 22 waive the filing deadline (or, if the court determined that an 23 injunction was inappropriate under the ADA, damages), and 24 attorney's fees and costs. Id. ¶¶ 43-52. The plaintiff requested various Id. at pp. 10-12. 7 1 Both defendants moved to dismiss the complaint pursuant 2 to Rule 12(b)(6); the NYSLRS also moved to dismiss pursuant to 3 Rule 12(b)(1), asserting that the plaintiff lacked standing and 4 that New York's sovereign immunity barred the plaintiff's claims. 5 On May 5, 2011, the district court denied the NYSLRS's motion to 6 dismiss for lack of subject matter jurisdiction, concluding that 7 the plaintiff had standing to bring her claims. 8 granted the NYSLRS's motion to dismiss because it concluded that 9 the plaintiff could not state a claim under Title II of the ADA, 10 and that the court therefore need not determine whether Congress 11 validly abrogated New York's sovereign immunity when it enacted 12 Title II. 13 essential eligibility requirement not subject to waiver under the 14 ADA, (2) the plaintiff's request for an accommodation was not 15 "reasonable" under the ADA because it would require the NYSLRS to 16 violate state law, and (3) the plaintiff did not allege facts 17 sufficiently plausible on their face to demonstrate, if proven, 18 that she was disabled within the meaning of Title II of the ADA. 19 Mary Jo C. v. New York State and Local Ret. Sys., 2011 WL 20 1748572, 2011 U.S. Dist. LEXIS 49567 (E.D.N.Y. May 5, 2011). 21 for the Library's motion to dismiss, the court concluded that the 22 plaintiff's Title II claims against the library failed because 23 her exclusive remedy against the Library was a claim under Title 24 I of the ADA, id. at *12, 2011 U.S. Dist. LEXIS 49567, at *39, 25 further noting that the plaintiff did not refute the Library's But the court The court reasoned that (1) the filing deadline was an 8 As 1 contention that the plaintiff had not exhausted her 2 administrative remedies under Title I. id. at *12 n.11, 2011 U.S. 3 Dist. LEXIS 49567, at *39 n.11. 4 to exercise supplemental jurisdiction over the state-law claims, 5 and dismissed the complaint. 6 The plaintiff appeals. 7 DISCUSSION 8 9 The district court then declined "We review de novo a district court's dismissal of a complaint under Rule 12(b)(6), accepting all of the complaint's 10 factual allegations as true and drawing all reasonable inferences 11 in the plaintiffs' favor." 12 Television Network, Inc., 683 F.3d 424, 429 (2d Cir. 2012) 13 (citing Interpharm, Inc. v. Wells Fargo Bank, Nat'l Ass'n, 655 14 F.3d 136, 141 (2d Cir. 2011)). The complaint must state a claim 15 that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 16 U.S. 544, 570 (2007). 17 plaintiff pleads factual content that allows the court to draw 18 the reasonable inference that the defendant is liable for the 19 misconduct alleged." 20 (2009). 21 a declaration that the plaintiff's complaint and incorporated 22 materials are insufficient as a matter of law to support a claim 23 upon which relief may be granted." 24 122, 130-31 (2d Cir. 2011). Forest Park Pictures v. Universal "A claim has facial plausibility when the Ashcroft v. Iqbal, 556 U.S. 662, 678 "[A] dismissal pursuant to Rule 12(b)(6) is, at bottom, 9 Halebian v. Berv, 644 F.3d 1 2 I. ADA Title II Claims Against the NYSLRS A. Sovereign Immunity 3 The NYSLRS moved to dismiss on the basis of New York 4 State's and the NYSLRS's sovereign immunity from suit. The 5 Eleventh Amendment to the United States Constitution provides 6 that "[t]he Judicial power of the United States shall not be 7 construed to extend to any suit in law or equity, commenced or 8 prosecuted against one of the United States by Citizens of 9 another State, or by Citizens or Subjects of any Foreign State." 10 U.S. CONST. amend. XI. 11 interpreted as also barring suits in federal court against a 12 state brought by that state's own citizens. 13 Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 14 2006). 15 recognized by the Eleventh Amendment extends beyond the states 16 themselves to 'state agents and state instrumentalities' that 17 are, effectively, arms of a state." 18 Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997)). The Eleventh Amendment has been See Woods v. Rondout Although NYSLRS is not itself a state, "[t]he immunity 19 Id. (quoting Regents of the "Congress may abrogate the states' Eleventh Amendment 20 immunity when acting pursuant to [Congressional] authority under 21 Section [five] of the Fourteenth Amendment." 22 CONST. amend. XIV, § 5; Tennessee v. Lane, 541 U.S. 509, 518 23 (2004)). 24 sovereign immunity from claims brought against them under Title 25 II of the ADA. Id. (citing U.S. Congress has purported to abrogate the states' See 42 U.S.C. § 12202. 10 However, the validity of 1 this abrogation depends on "whether Congress acted pursuant to a 2 valid grant of constitutional authority." 3 (internal quotation marks omitted). 4 Lane, 541 U.S. at 517 In United States v. Georgia, 546 U.S. 151 (2006), the 5 Supreme Court established a three-step process for analyzing 6 whether Congress has validly abrogated a state's sovereign 7 immunity from suit in the context of a particular Title II claim: 8 9 10 11 12 13 14 15 16 17 [A court must] determine . . . , on a claim-by-claim basis, (1) which aspects of the State's alleged conduct violated Title II; (2) to what extent such misconduct also violated the Fourteenth Amendment; and (3) insofar as such misconduct violated Title II but did not violate the Fourteenth Amendment, whether Congress's purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid. 18 Id. at 159. 19 the court's sovereign immunity inquiry is at an end. 20 Buchanan v. Maine, 469 F.3d 158, 172 73 (1st Cir. 2006) ("If the 21 State's conduct does not violate Title II, the court does not 22 proceed to the next step in the [United States v. Georgia] 23 analysis. 24 25 B. 26 Thus, if a plaintiff cannot state a Title II claim, See The claim ends."). The "Reasonable Modification" Requirement of Title II of the ADA "The ADA was passed by large majorities in both Houses 27 of Congress [in 1990] after decades of deliberation and 28 investigation into the need for comprehensive legislation to 29 address discrimination against persons with disabilities." 30 541 U.S. at 516. 31 disabilities continually encounter various forms of "Congress found that 'individuals with 11 Lane, 1 discrimination, including outright intentional exclusion, the 2 discriminatory effects of architectural, transportation, and 3 communication barriers, overprotective rules and policies, [and] 4 failure to make modifications to existing facilities and 5 practices . . . .'" 6 Cir. 1996) (alteration in original) (quoting 42 U.S.C. § 7 12101(a)(5)). 8 national mandate for the elimination of discrimination against 9 individuals with disabilities." Crowder v. Kitagawa, 81 F.3d 1480, 1483 (9th The ADA aims "to provide a clear and comprehensive 42 U.S.C. §§ 12101(b)(1). "It 10 forbids discrimination against persons with disabilities in three 11 major areas of public life: employment, which is covered by Title 12 I of the statute; public services, programs, and activities, 13 which are the subject of Title II; and public accommodations, 14 which are covered by Title III." 15 Lane, 541 U.S. at 516-17. "Title II of the ADA[,'Public Services,'] provides that 16 'no qualified individual with a disability shall, by reason of 17 such disability, be excluded from participation in or be denied 18 the benefits of the services, programs, or activities of a public 19 entity,[1] or be subjected to discrimination by any such entity.'" 20 United States v. Georgia, 546 U.S. at 153 (quoting 42 U.S.C. 21 § 12132). 22 reasonable accommodations in order to provide qualified The statute "require[s] that covered entities make 1 The ADA "defines 'public entity' to include 'any State or local government' and 'any department, agency, . . . or other instrumentality of a State.'" United States v. Georgia, 546 U.S. at 154 (quoting 42 U.S.C. § 12131(1)) (some internal quotation marks omitted). 12 1 individuals with an equal opportunity to receive benefits from or 2 to participate in programs run by such entities." 3 West Haven Fire Dep't, 352 F.3d 565, 573 (2d Cir. 2003) (internal 4 quotation marks omitted). Tsombanidis v. 5 6 7 8 9 10 11 12 13 To prove a violation of Title II, a party must therefore establish: (1) that he is a "qualified individual" with a disability; (2) that he was excluded from participation in a public entity's services, programs or activities or was otherwise discriminated against by a public entity; and (3) that such exclusion or discrimination was due to his disability. 14 Hargrave v. Vermont, 340 F.3d 27, 34 35 (2d Cir. 2003). 15 16 17 18 19 20 21 22 23 24 25 A "'qualified individual with a disability'" is defined as "an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." 26 United States v. Georgia, 546 U.S. at 153-54 (quoting 42 U.S.C. 27 § 12131(2)). 28 modifications in policies, practices, or procedures when the 29 modifications are necessary to avoid discrimination on the basis 30 of disability, unless the public entity can demonstrate that 31 making the modifications would fundamentally alter the nature of 32 the service, program, or activity." 33 "[A] defendant need not make an accommodation at all if the "A public entity shall make reasonable 2 28 C.F.R. § 35.130(b)(7).2 "We have previously made clear that 28 C.F.R. § 35.130(b)(7) was intended to implement 42 U.S.C. § 12131(2)." Hargrave, 340 F.3d at 38; see also infra note 5. 13 1 requested accommodation 'would fundamentally alter the nature of 2 the service, program, or activity.'" 3 Medical Examiners, 364 F.3d 79, 88 (2d Cir. 2004) (quoting 28 4 C.F.R. § 35.130(b)(7)). 5 Powell v. National Bd. of Typically, "the determination of whether a particular 6 modification is 'reasonable' involves a fact-specific, 7 case-by-case inquiry that considers, among other factors, the 8 effectiveness of the modification in light of the nature of the 9 disability in question and the cost to the organization that 10 would implement it." 11 356 (2d Cir. 1995) (applying same standard in Title III case as 12 under Title II, see infra note 6). 13 "whether [a] plaintiff['s] proposed modifications . . . amount to 14 'reasonable modifications' which should be implemented, or 15 'fundamental alterations,' which the state may reject." 16 81 F.3d at 1485. 17 18 C. 19 Staron v. McDonald's Corp., 51 F.3d 353, It is a factual issue Crowder, The District Court's Decision as to Whether the Plaintiff is a "Qualified Individual" The district court began its analysis of whether the 20 plaintiff adequately alleged that she is a "qualified individual 21 with a disability" by observing that New York State courts have 22 interpreted a similar filing deadline provision as 23 24 25 26 27 28 29 30 a condition precedent to the ripening of any rights" or entitlement to disability benefits, and have [concluded] that the statutory filing period may [not] be extended or waived by the State agency, even where the applicant claims that the disability giving rise to his or her claim for disability benefits also rendered him incapable of 14 1 2 asserting his or her claim in a timely manner. 3 Mary Jo C., 2011 WL 1748572, at *8, 2011 U.S. Dist. LEXIS 49567, 4 at *24-*25 (citations and parenthetical description of cited 5 cases omitted). 6 Bloomberg, 331 F.3d 261 (2d Cir. 2003), that the ADA's "use of 7 the term 'qualified' suggests that [courts] must look not to the 8 administration of the program for which the plaintiff is 9 qualified, but rather its formal legal eligibility requirements," Relying on our statement in Henrietta D. v. 10 id. at 277 (citing 42 U.S.C. §§ 12131 32), the court reasoned 11 that because the filing deadline is deemed a condition precedent 12 to eligibility under state law, the "plaintiff seeks a waiver of 13 an essential eligibility requirement for receipt of disability 14 benefits under [New York law], which the State courts have 15 determined the State defendant is without authority to grant." 16 Mary Jo C., 2011 WL 1748572, at *9, 2011 U.S. Dist. LEXIS 49567, 17 at *27. 18 The district court then concluded that, unlike 19 requiring "reasonable modification of the State defendant's own 20 rules, policies or practices over which it has discretion," 21 "[r]equiring the State defendant to violate state law is not a 22 reasonable accommodation as a matter of law." 23 Dist. LEXIS 49567, at *27. 24 relied principally on Herschaft v. New York Board of Elections, 25 No. 00 CV 2748, 2001 WL 940923, 2001 U.S. Dist. LEXIS 11801 26 (E.D.N.Y. Aug. 13, 2001) (denominated "NOT FOR PUBLICATION"), Id., 2011 U.S. For this proposition, the court 15 1 aff'd on other grounds, 37 F. App'x 17 (2d Cir. 2002) (summary 2 order), in which the court rejected a pro se plaintiff's 3 requested modification of New York State's deadline for gathering 4 signatures for an election nominating petition. 5 U.S. Dist. LEXIS 11801, at *1. 6 without citation to authority, that Id. at *1, 2001 The Herschaft court opined, 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Id. at *6, 2001 U.S. Dist. LEXIS 11801, at *18-*19 (footnote 22 omitted). 23 Supp. 1428 (W.D. Wash. 1995), which reasoned that modification of 24 a federal statutory age requirement "would essentially rewrite 25 the statute, [so] it must be seen as a fundamental alteration in 26 the nature of the program," id. at 1432. 27 D. 28 [A] two- to three-week extension[,] . . . although not excessive in scope, is unreasonable simply because it would require the Board of Elections to violate a state statute requiring that signatures for independent nominating petitions be gathered and submitted within a certain time frame. . . . The Board of Elections has no statutory authority to waive the requirement. It is the Court's opinion that an accommodation that would require a defendant to violate an otherwise constitutional state law is inherently unreasonable. The district court also cited Aughe v. Shalala, 885 F. Analysis 1. Whether the Filing Deadline is an Essential 29 Eligibility Requirement. With respect to Title II's requirement 30 that a "qualified individual" meet the "essential eligibility 31 requirements" of a covered program, the district court apparently 32 concluded that so long as a mandatory eligibility requirement is 33 set by a state statute, it will be an "essential eligibility 16 1 requirement," and any modification of it will work a "fundamental 2 alteration" of the program. 3 "Title II does not require waiver of the essential eligibility 4 requirements for state programs or receipt of state benefits," 5 NYSLRS Br. 13-14, and construes our opinion in Henrietta D. as 6 deciding that "to state a reasonable modification claim under the 7 ADA, the plaintiff must meet the 'formal legal eligibility 8 requirements' for benefits or services," id. at 14 (quoting 9 Henrietta D., 331 F.3d at 277). 10 On appeal, the NYSLRS argues that At the outset, we note that the portion of Henrietta D. 11 cited by the district court and by NYSLRS arose in an entirely 12 different setting from that presented by this case. 13 state defendant argued that it should be permitted to rebut the 14 plaintiffs' prima facie Title II claim by showing that "the 15 plaintiffs are no less successful in gaining access to benefits 16 than the non-disabled. 17 alternative reason for the plaintiffs' low rate of obtaining 18 benefits: systemic problems that create obstacles to access for 19 everyone." 20 confronted was the meaning of the term "benefits" in the 21 statutory command that "no qualified individual with a disability 22 shall, by reason of such disability, be excluded from 23 participation in or be denied the benefits of the services, 24 programs, or activities of a public entity." 25 see 331 F.3d at 277. There, the Such a showing would suggest an Henrietta D., 331 F.3d at 277. 17 The issue we 42 U.S.C. § 12132; 1 We concluded that the ADA "plainly define[s] benefits 2 by reference to a plaintiff's facial legal entitlements." 3 Henrietta D., 331 F.3d at 277. 4 statute's use of the term 'qualified' suggests that we must look 5 not to the administration of the program for which the plaintiff 6 is qualified, but rather its formal legal eligibility 7 requirements." 8 be read to define "essential eligibility requirements" as all 9 "formal legal eligibility requirements." Id. We reasoned further that "[t]he In context, these statements cannot properly That issue was not 10 before the Henrietta D. court. 11 whether the term "benefits" referred to the public program as it 12 was in fact administered, or the program as it was intended to 13 operate by law. 14 of the term "qualified" and the regulations' use of the phrase 15 "essential eligibility requirements" in order to construe the 16 statutory term "benefits," id. at 277-78, the Henrietta D. Court 17 did not construe the phrase "essential eligibility requirement" 18 itself. 19 "essential eligibility requirements" as it is used in 42 U.S.C. 20 § 12131(2) necessarily means a program's "formal legal 21 eligibility requirements." 22 the issue before us, we must construe the relevant statutory 23 language in the first instance. See id. The only question there was Although it looked to the statute's use We thus did not determine there that the phrase Because Henrietta D. did not resolve 24 Of course, "[s]tatutory analysis necessarily begins 25 with the plain meaning of a law's text and, absent ambiguity, 26 will generally end there." Bustamante v. Napolitano, 582 F.3d 18 1 403, 406 (2d Cir. 2009) (internal quotation marks omitted). 2 the outset, then, we "review the statutory text, considering the 3 ordinary or natural meaning of the words chosen by Congress, as 4 well as the placement and purpose of those words in the statutory 5 scheme." 6 2009) (internal quotation marks omitted). 7 text defines a qualified individual as 8 9 10 11 12 13 14 15 16 17 At United States v. Aguilar, 585 F.3d 652, 657 (2d Cir. Here, the relevant an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity. 18 42 U.S.C. § 12131(2) (emphases added). 19 distinguishes between two categories of requirements: (1) rules, 20 policies, or practices, which are subject to the requirement of 21 reasonable modification, and (2) essential eligibility 22 requirements, which are not. 23 The text thus The fact that Congress provided that "rules, policies, 24 or practices" would be subject to reasonable modification, and 25 contrasted this flexibility with the requirement that a qualified 26 individual meet the "essential eligibility requirements" of a 27 program within the same sentence suggests that Congress meant 28 these categories to have different meanings. 29 identical words used in different parts of the same statute are 30 presumed to have the same meaning. 19 "Generally, But where, as here, Congress 1 uses certain language in one part of the statute and different 2 language in another, the court assumes different meanings were 3 intended." 4 2011) (citations and internal quotation marks omitted). 5 Courts have therefore reasoned that essential Cruz-Miguel v. Holder, 650 F.3d 189, 196 (2d Cir. 6 eligibility requirements, unlike "rules, policies, [and] 7 practices," 42 U.S.C. § 12131(2), are not subject to reasonable 8 modification or waiver. 9 School Activities Ass'n, 40 F.3d 926, 930 (8th Cir. 1994) See Pottgen v. Missouri State High 10 (observing that when an individual cannot meet an eligibility 11 requirement determined to be essential, "the only possible 12 accommodation is to waive the essential requirement itself. . . . 13 [But] [w]aiving an essential eligibility standard would 14 constitute a fundamental alteration in the nature of the . . . 15 program [at issue].") (footnote omitted); cf. PGA Tour, Inc. v. 16 Martin, 532 U.S. 661, 689 (2001) ("[T]he waiver of an essential 17 rule of [a golf] competition for anyone [under Title III of the 18 ADA] would fundamentally alter the nature of [the] 19 tournaments."). 20 "[O]ne of the most basic interpretive canons[ is] that 21 a statute should be construed so that effect is given to all its 22 provisions, so that no part will be inoperative or superfluous, 23 void or insignificant." 24 314 (2009) (internal quotation marks and alteration omitted); see 25 also Duncan v. Walker, 533 U.S. 167, 174 (2001) ("It is our duty 26 to give effect, if possible, to every clause and word of a Corley v. United States, 556 U.S. 303, 20 1 statute." (internal quotation marks omitted)). 2 fact that Congress used the phrases "rules, policies, and 3 practices" and "essential eligibility requirements" as two 4 distinct categories, the application of this canon of statutory 5 construction presents a fundamental obstacle to construing 6 "essential eligibility requirements" to mean all "formal legal 7 eligibility requirements," as the district court did and as the 8 NYSLRS would have us do too. 9 In light of the The statute uses the phrase "essential eligibility 10 requirements," not simply "eligibility requirements." Had 11 Congress intended "all formal legal eligibility requirements" to 12 be non-waivable, the phrase "eligibility requirements" would have 13 sufficed; it would have been unnecessary to use the phrase 14 "essential eligibility requirements." 15 "services, programs, or activities of a public entity," 42 U.S.C. 16 § 12132, which, being public, will typically define their 17 eligibility requirements wholly by applicable legal requirements. 18 That is the case here - all the relevant eligibility 19 requirements for participation in the program are set by law. 20 "essential eligibility requirements" meant "all formal legal 21 eligibility requirements," every eligibility requirement would be 22 "essential" and non-waivable, impermissibly rendering the word 23 "essential" superfluous. Title II applies to the Therefore, the term "essential 21 If 1 eligibility requirements" does not refer to all formal legal 2 eligibility requirements.3 3 Cases interpreting the "essential eligibility 4 requirement" language indicate that whether an eligibility 5 requirement is essential is determined by consulting the 6 importance of the requirement to the program in question. See, 3 NYSLRS argues that the "rules, policies, [and] practices" subject to reasonable modification under Title II do not include state statutes. See NYSLRS Br. 19 ("Title II . . . requires reasonable modification only of 'rules, policies, or practices' - not state statutes."). Our decision in Hargrave indicates, however, that the phrase "rules, policies, or practices" is not to be read so narrowly. There, the district court had found a Vermont statute to facially discriminate against individuals with mental illnesses when it allowed medical professionals to petition courts to invalidate durable powers of attorney executed by the mentally ill. 340 F.3d at 31-32. Vermont argued that enjoining execution of the statute "would fundamentally alter programs of civil commitment in Vermont." Id. at 37 (internal quotation marks omitted). In rejecting this argument, we first observed that the relevant regulations required "'reasonable modifications in policies [or] practices' in order to avoid discrimination unless the modifications would constitute a fundamental alteration to the relevant 'service, program, or activity.'" Id. at 38 (quoting 28 C.F.R. § 35.130(b)(7)). We noted that this language "mirrors" and "implement[s]" the definition of a "qualified individual with a disability" as "'an individual who, with or without reasonable modifications to rules, policies, or practices . . . meets the essential eligibility requirements for . . . participation in programs or activities provided by a public entity.'" Id. (quoting 42 U.S.C. § 12131(2)). We rejected Vermont's fundamental alteration argument because "Defendants have failed even to assert clearly, much less show, that the injunction issued by the District Court would fundamentally alter Vermont's program authorizing and enforcing [durable powers of attorney]." Id. By implication, the Hargrave court discussed the relevant injunction of the state statute as a "reasonable modification[] to rules, policies, or practices," which did not constitute a "fundamental alteration" of the program. Id. Hargrave thus casts doubt on the state's argument that the phrase "rules, policies, and practices" never includes state statutes. 22 1 e.g., Pottgen, 40 F.3d at 930 ("[T]o determine whether [the 2 plaintiff] is a 'qualified individual' under [Title II of] the 3 ADA, we must first determine whether the age limit is an 4 essential eligibility requirement by reviewing the importance of 5 the requirement to the interscholastic baseball program [at 6 issue]."); id. at 929 (deciding that high school baseball 7 program's age limit was essential because "[a]n age limit helps 8 reduce the competitive advantage flowing to teams using older 9 athletes; protects younger athletes from harm; discourages 10 student athletes from delaying their education to gain athletic 11 maturity; and prevents over-zealous coaches from engaging in 12 repeated red-shirting to gain a competitive advantage. 13 purposes are of immense importance in any interscholastic sports 14 program.").4 These 4 Pottgen's analysis of the importance of the age requirement is drawn from the Eighth Circuit's discussion of claims under section 504 of the Rehabilitation Act of 1973. "The Rehabilitation Act of 1973 establishes a comprehensive federal program aimed at improving the lot of the handicapped. Among its purposes are to 'promote and expand employment opportunities in the public and private sectors for handicapped individuals and place such individuals in employment.'" Consolidated Rail v. Darrone, 465 U.S. 624, 626 (1984) (quoting 29 U.S.C. § 701(8)), superseded by statute on other grounds as stated in DeVargas v. Mason & Hanger-Silas Mason Co., 911 F.2d 1377, 1383-84 (10th Cir. 1990). Section 504 of the Rehabilitation Act provides that "[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency . . . ." Rehabilitation Act § 504, 29 U.S.C. § 794. Although the Eighth Circuit was discussing claims under section 504 of the Rehabilitation Act, the Pottgen court largely 23 1 This reading is reenforced by the regulations 2 implementing5 the relevant section of the ADA, which require "[a] 3 public entity [to] make reasonable modifications in policies, 4 practices, or procedures when the modifications are necessary to 5 avoid discrimination on the basis of disability, unless the 6 public entity can demonstrate that making the modifications would 7 fundamentally alter the nature of the service, program, or 8 activity." 9 that "essential eligibility requirements" are those requirements 28 C.F.R. § 35.130(b)(7). The regulations indicate adopted its reasoning as to the Rehabilitation Act claims when it analyzed the Title II claims in the case before it. See 40 F.3d at 930-31. Other courts have looked to Rehabilitation Act precedent in deciding cases under Title II of the ADA because Congress intended that the ADA mirror the requirements of the Rehabilitation Act. See Henrietta D., 331 F.3d at 272 ("[A]lthough there are subtle differences between these disability acts, the standards adopted by Title II of the ADA for State and local government services are generally the same as those required under section 504 of [the Rehabilitation Act] of federally assisted programs and activities. Indeed, unless one of those subtle distinctions is pertinent to a particular case, we treat claims under the two statutes identically." (internal quotation marks, brackets, and citations omitted)). 5 "[T]he Attorney General, at the instruction of Congress, has issued an implementing regulation that outlines the duty of a public entity to accommodate reasonably the needs of the disabled [under Title II]." Wisconsin Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 750-51 (7th Cir. 2006) (en banc) (footnote omitted). "We have previously made clear that 28 C.F.R. § 35.130(b)(7) was intended to implement 42 U.S.C. § 12131(2)." Hargrave, 340 F.3d at 38. "The Supreme Court never has decided whether these regulations are entitled to the degree of deference described in Chevron, U.S.A. Inc. v. National Resource Defense Council, Inc., 467 U.S. 837, 844 (1984). Nevertheless, the Court has said that, '[b]ecause the Department of Justice is the agency directed by Congress to issue regulations implementing Title II[,] . . . its views warrant respect.'" Wisconsin Cmty. Servs., 465 F.3d at 751 n.10 (quoting Olmstead v. L.C., 527 U.S. 581, 597-98 (1999)). 24 1 without which the "nature" of the program would be "fundamentally 2 alter[ed]." 3 that some relatively minor eligibility requirements, even if set 4 by statute, will not be deemed essential because they will not be 5 necessary to prevent the fundamental alteration of the program's 6 nature. Id. These terms seem to us clearly to contemplate 7 The Supreme Court's decision in PGA Tour, Inc. v. 8 Martin, 532 U.S. 661 (2001), further illustrates the point. 9 plaintiff in Martin was a professional golfer with a disability The 10 that prevented him from walking an 18-hole golf course. Id. at 11 668-69. 12 contravention of the PGA's rules as a reasonable accommodation 13 under Title III of the ADA,6 and the PGA defended on the basis He requested permission to use a golf-cart in 6 Title III provides that "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns . . . or operates a place of public accommodation." 42 U.S.C. § 12182(a). Courts have read the requirements of Title II and Title III as being consistent with each other: The House Committee on Education and Labor indicated that Title II's prohibitions are to be "identical to those set out in the applicable provisions of titles I and III of this legislation." H.R. Rep. No. 101 485(II), at 84 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 367. More specifically, the House Report on the ADA states that the prohibitions of discrimination on the basis of association from Titles I and III should be incorporated in the regulations implementing Title II. Id.; H.R. Rep. No. 485(III), at 51 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 474; see also Kinney v. Yerusalim, 9 F.3d 1067, 1073 n.6 (3d Cir. 1993) (legislative history indicates that 25 1 that allowing use of the golf-cart would work a fundamental 2 alteration in the nature of the tournament. 3 Id. at 670-71. The Court began its analysis by observing two ways in 4 which a modification of the PGA's rules might fundamentally alter 5 the tournament: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 It might alter such an essential aspect of the game of golf that it would be unacceptable even if it affected all competitors equally; changing the diameter of the hole from three to six inches might be such a modification. Alternatively, a less significant change that has only a peripheral impact on the game itself might nevertheless give a disabled player, in addition to access to the competition as required by Title III, an advantage over others and, for that reason, fundamentally alter the character of the competition. Id. at 682-83 (footnote omitted). The Court reasoned that "the use of carts is not itself 21 inconsistent with the fundamental character of the game of golf" 22 because "the essence of the game [is] shotmaking - using clubs 23 to cause a ball to progress from the teeing ground to a hole some 24 distance away with as few strokes as possible." Id. at 683. It Titles II and III are to be read consistently). Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d 37, 47 (2d Cir. 1997), recognized as superseded on other grounds by Zervos v. Verizon New York, Inc., 252 F.3d 163, 171 n.7 (2d Cir. 2001). "Congress clearly did not intend to give public entities more latitude than private parties to discriminate against the disabled." Theriault v. Flynn, 162 F.3d 46, 53 n.10 (1st Cir. 1998); see also Bartlett v. New York State Bd. of Law Examiners, 226 F.3d 69, 78 n.2 (2d Cir. 2000) ("In the context of this case, title II and title III of the ADA impose largely the same requirements . . . ."). Therefore, relevant cases interpreting Title III, such as Martin, are instructive here. 26 1 therefore concluded that "the walking rule is at best peripheral 2 to the nature of [the PGA's] athletic events, and thus it might 3 be waived in individual cases without working a fundamental 4 alteration." 5 that provides an exception to a peripheral tournament rule 6 without impairing its purpose cannot be said to 'fundamentally 7 alter' the tournament."). 8 that "all the substantive rules for its . . . competitions are 9 sacrosanct and cannot be modified under any circumstances [was Id. at 689; see also id. at 690 ("A modification The PGA's argument to the contrary 10 for that reason] effectively a[n] [incorrect] contention that it 11 is exempt from Title III's reasonable modification requirement." 12 Id. at 689. 13 PGA . . . carefully weigh the purpose, as well as the letter, of 14 the rule before determining that no accommodation would be 15 tolerable." 16 But "Congress intended that an entity like the Id. at 691. Rather than simply deferring to the entity providing 17 the service in question, deeming the rules as set by that entity 18 as "sacrosanct," id. at 689, and construing any modification of 19 those rules as a fundamental alteration in the nature of the 20 service, the Martin Court undertook an independent analysis of 21 the importance of a rule for the service in light of the 22 service's purpose to determine whether a requested modification 23 would fundamentally alter its nature. 24 the ADA to require us to analyze the importance of an eligibility 25 requirement for a public program or benefit, rather than to defer 26 automatically to whatever "formal legal eligibility requirements" 27 Similarly here, we read 1 may exist, no matter how unimportant for the program in question 2 they may be.7 3 And, perhaps most fundamentally, reading "essential 4 eligibility requirements" to mean all formal legal eligibility 5 requirements seems to us to run counter to the ADA's broad 6 remedial purpose by allowing states to insist that whatever legal 7 requirements they may set are never subject to reasonable 8 modification under Title II of the ADA. 9 construction of the ADA, the class of "rules, policies, or Were we to adopt such a 10 practices" subject to reasonable modification under Title II 11 would be vanishingly small, and nearly all eligibility 12 requirements for the receipt of public services would be non- 13 waivable "essential" eligibility requirements. 14 "In the ADA, Congress provided [a] broad mandate" to 15 "effectuate its sweeping purpose[ to] . . . forbid[] 16 discrimination against disabled individuals in major areas of 17 public life, [including] . . . public services . . . ." 18 675. 19 to effectuate its purpose of providing a clear and comprehensive 20 national mandate for the elimination of discrimination against 21 individuals with disabilities." Id. at "As a remedial statute, the ADA must be broadly construed Noel v. New York City Taxi and 7 Our citation to Martin should in no way be construed as conflating the status of the states' sovereign function of lawmaking with that of a private entity's rule-making. But Martin persuasively indicates, along with the other considerations discussed, that Title II should not be construed to require automatic deference to a program's formal legal eligibility requirements, however minor they may be. 28 1 Limousine Comm'n, 687 F.3d 63, 68 (2d Cir. 2012) (internal 2 quotation marks omitted). 3 would be to render Title II effectively impotent, which would be 4 contrary to the broad remedial purpose of the ADA - an act that 5 "has been described as 'a milestone on the path to a more decent, 6 tolerant, progressive society.'" 7 (quoting Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 8 356, 375 (2001) (Kennedy, J., concurring)). 9 To adopt the NYSLRS's construction Martin, 532 U.S. at 675 Finally, here, as the plaintiff and the amici point 10 out, New York State already waives or extends the filing deadline 11 for disability retirement benefits for certain classes of 12 individuals: 13 leave may file an application within a year after termination of 14 employment, see N.Y. Ret. and Soc. Sec. Law § 605(b)(2), and an 15 NYSLRS member with "a qualifying World Trade Center condition" 16 faces no deadline whatsoever, see id. 17 itself waives the deadline in the enumerated circumstances 18 strongly suggests that the filing deadline is not "essential." 19 Cf. Martin, 532 U.S. at 685 ("[T]he walking rule is not an 20 indispensable feature of tournament golf either. 21 permits golf carts to be used [by non-disabled golfers] in 22 [several of its tournaments other than the one in question]."). 23 At this stage, it cannot be said as a matter of law that the 24 filing deadline is an essential eligibility requirement, and 25 therefore dismissal is inappropriate because it is not clear from 26 the face of the complaint that the plaintiff's allegations are For example, an NYSLRS member on unpaid medical 29 The fact that the State [The PGA] 1 "insufficient as a matter of law to support a claim upon which 2 relief may be granted." Halebian, 644 F.3d at 131. 3 As the plaintiff points out, "[t]his Court has not yet 4 established a broad rule defining when requirements imposed by a 5 state or local government constitute 'essential eligibility 6 requirements' of a program [so] as to render an individual 7 eligible for protection under Title II of the ADA." 8 Br. 4. 9 (1st Cir. 2000) ("Although Title II of the ADA took effect on Pl.'s Reply Cf. Parker v. Universidad de Puerto Rico, 225 F.3d 1, 4 10 January 26, 1992, [as of August 2000,] there [was] sparse 11 case[]law interpreting its scope and limits." (footnote 12 omitted)). 13 appeal, it is sufficient to conclude that the district court's 14 view that the ADA's reference to "essential eligibility 15 requirements" necessarily refers to each and every formal legal 16 eligibility requirement imposed for participation in a public 17 program or benefit is mistaken. 18 dismiss, we ask only whether the complaint states a claim that is 19 in this regard plausible on its face. 20 For the foregoing reasons, we conclude that it does. 21 But we need not do so today. 2. In the posture of this In the context of a motion to Twombly, 550 U.S. at 570. Whether Waiving the Filing Deadline Would be a 22 Reasonable Modification. The district court also concluded that 23 "[r]equiring the State defendant to violate state law is not a 24 reasonable accommodation as a matter of law." 25 WL 1748572, at *9, 2011 U.S. Dist. LEXIS 49567, at *27. 26 court's construction of the term "reasonable modification" thus 30 Mary Jo C., 2011 The 1 provided another ground upon which it granted the NYSLRS's motion 2 to dismiss. 3 federal preemption, we must inquire whether Congress, when it 4 enacted Title II's reasonable modification provision, intended to 5 require modification of state laws under certain circumstances, 6 thereby preempting them, or whether it instead intended the 7 reasonable modification provision to stop short of encroaching on 8 state laws. 9 F.3d 81, 85 (1st Cir. 2011) ("[F]ederal preemption[] is a 10 11 As a matter of both statutory construction and See, e.g., DiFiore v. American Airlines, Inc., 646 question of statutory construction . . . ."). Under the United States Constitution's Supremacy 12 Clause, the "Constitution, and the Laws of the United States 13 which shall be made in Pursuance thereof . . . shall be the 14 supreme Law of the Land; . . . any Thing in the Constitution or 15 Laws of any State to the Contrary notwithstanding." 16 art. VI, cl. 2. 17 'state laws that conflict with federal law are without effect.'" 18 Niagara Mohawk Power Corp. v. Hudson River-Black River Regulating 19 Dist., 673 F.3d 84, 94 (2d Cir. 2012) (quoting Altria Grp. Inc. 20 v. Good, 555 U.S. 70, 76, (2008)). 21 the ultimate touchstone of pre-emption analysis." 22 Liggett Grp., Inc., 505 U.S. 504, 516 (1992) (internal quotation 23 marks omitted). 24 contrary, federal preemption of state law is not favored . . . ." 25 Marsh v. Rosenbloom, 499 F.3d 165, 177-78 (2d Cir. 2007). U.S. Const. "Under the doctrine of federal preemption, "[T]he purpose of Congress is Cipollone v. "Absent clear congressional intent to the 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 "Congress may manifest its intent to preempt state or local law explicitly, through the express language of a federal statute, or implicitly, through the scope, structure, and purpose of the federal law." [N.Y. SMSA Ltd. P'ship v. Town of] Clarkstown, 612 F.3d [97, 104 (2d Cir. 2010)]. Thus, preemption "may be either express or implied, and is compelled whether Congress' command is explicitly stated in the statute's language or implicitly contained in its structure and purpose." Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95 (1983) (internal quotation marks omitted). Niagara Mohawk Power Corp., 496 F.3d at 95. "[T]he ADA does not contain an express preemption 17 provision . . . ." 18 No. 08 Civ. 7117, 2012 WL 345909, at *4, 2012 U.S. Dist. LEXIS 19 12047, at *10 (N.D. Ill. Jan 30, 2012). 20 two types of implied preemption: (1) field preemption, where 21 Congress has manifested an intent to 'occupy the field' in a 22 certain area . . . ; and (2) conflict preemption, where state law 23 'actually conflicts with federal law.'" 24 Corp., 673 F.3d at 95 (quoting English v. Gen. Elec. Co., 496 25 U.S. 72, 79 (1990)). 26 Rubietta v. National R.R. Passenger Corp., "Courts have recognized Niagara Mohawk Power "An actual conflict between state and federal law 27 exists when compliance with both federal and state regulations is 28 a physical impossibility, or when state law is an obstacle to the 29 accomplishment and execution of the full purposes and objectives 30 of Congress." 31 and citations omitted). 32 federal law is in 'irreconcilable conflict' with state law." Marsh, 499 F.3d at 177 (internal quotation marks An actual conflict also exists "where 32 1 Levitin v. PaineWebber, Inc., 159 F.3d 698, 705 (2d. Cir. 1998) 2 (quoting 3 4 5 6 7 8 9 10 11 12 13 14 Barnett Bank v. Nelson, 517 U.S. 25, 31 (1996)). [W]hen the question is whether a Federal act overrides a state law, the entire scheme of the statute must of course be considered and that which needs must be implied is of no less force than that which is expressed. If the purpose of the act cannot otherwise be accomplished -- if its operation within its chosen field else must be frustrated and its provisions be refused their natural effect -the state law must yield to the regulation of Congress within the sphere of its delegated power. 15 Crosby v. National Foreign Trade Council, 530 U.S. 363, 373 16 (2000) (quoting Savage v. Jones, 225 U.S. 501, 533 (1912)). 17 "What is a sufficient obstacle is a matter of judgment, to be 18 informed by examining the federal statute as a whole and 19 identifying its purpose and intended effects." 20 Id. "Since preemption claims turn on Congress's intent, we 21 begin as we do in any exercise of statutory construction with the 22 text of the provision in question, and move on, as need be, to 23 the structure and purpose of the Act in which it occurs." 24 Metropolitan Taxicab Bd. of Trade v. City of New York, 615 F.3d 25 152, 156 (2d Cir. 2010) (quoting N.Y. State Conference of Blue 26 Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 27 655 (1995)) (brackets omitted). 28 in the statutory phrase "reasonable modification" to suggest that 29 Congress intended to exclude modifications that require violation 30 or waiver of mandatory state statutes in some circumstances. 31 light of the broad scope and purpose of the ADA, we think it At the outset, we find nothing 33 In 1 unlikely that Congress would have hidden such a significant 2 limitation in such an anodyne statutory phrase. 3 did restrict the scope of the ADA, it did so explicitly. 4 e.g., 42 U.S.C. §§ 12208, 12210 (explicitly excluding certain 5 individuals from the definition of "qualified individual with a 6 disability"); id. § 12111(5)(A) (excluding employers having fewer 7 than fifteen employees from the coverage of Title I). 8 When Congress See, As noted above, "[i]n the ADA, Congress provided [a] 9 broad mandate" to "effectuate its sweeping purpose[ to] . . . 10 forbid[] discrimination against disabled individuals in major 11 areas of public life, [including] . . . public services . . . ." 12 Martin, 532 U.S. at 675. 13 disabilities continually encounter various forms of 14 discrimination, including outright intentional exclusion, the 15 discriminatory effects of architectural, transportation, and 16 communication barriers, overprotective rules and policies, [and] 17 failure to make modifications to existing facilities and 18 practices . . . .'" 19 original) (quoting 42 U.S.C. § 12101(a)(5)). 20 provide a clear and comprehensive national mandate for the 21 elimination of discrimination against individuals with 22 disabilities." 23 represents Congress's attempt to apply this "clear and 24 comprehensive national mandate" to the "services, programs, or 25 activities," 42 U.S.C. § 12132, of "'any State or local 26 government' and 'any department, agency, . . . or other "Congress found that 'individuals with Crowder, 81 F.3d at 1483 (alteration in 42 U.S.C. § 12101(b)(1). 34 The ADA aims "to Title II of the ADA 1 instrumentality of a State,'" United States v. Georgia, 546 U.S. 2 at 154 (omission in original) (quoting 42 U.S.C. § 12131(1)). 3 And although Congress did not include an express preemption 4 provision, it did include a provision expressly abrogating the 5 sovereign immunity of the states. 6 See 42 U.S.C. § 12202. The "natural effect" of Title II's "reasonable 7 modification" requirement, Crosby, 530 U.S. at 373, in light of 8 the foregoing observations, requires preemption of inconsistent 9 state law when necessary to effectuate a required "reasonable 10 modification." Congress clearly meant Title II to sweep broadly. 11 If all state laws were insulated from Title II's reasonable 12 modification requirement solely because they were state laws, 13 "state law [would serve as] an obstacle to the accomplishment and 14 execution of the full purposes and objectives of Congress" in 15 enacting Title II. 16 "provid[ing] a clear and comprehensive national mandate for the 17 elimination of discrimination against individuals with 18 disabilities," 42 U.S.C. § 12101(b)(1), the ADA would be 19 powerless to work any reasonable modification in any requirement 20 imposed by state law, no matter how trivial the requirement and 21 no matter how minimal the costs of doing so. 22 the ADA's reasonable modification requirement contemplates 23 modification to state laws, thereby permitting preemption of Marsh, 499 F.3d at 177. 35 Far from We conclude that 1 inconsistent state laws, when necessary to effectuate Title II's 2 reasonable modification provision.8 Our conclusion is further supported by Hargrave. 3 4 There, as we have discussed, we upheld an injunction of a 5 facially discriminatory Vermont statute. 6 in the context of the statute and implementing regulation 7 requiring states "to make 'reasonable modifications in policies 8 [or] practices' in order to avoid discrimination unless the 9 modifications would constitute a fundamental alteration to the Vermont had argued that 10 relevant 'service, program, or activity,'" Hargrave, 340 F.3d at 11 38 (quoting 28 C.F.R. § 35.130(b)(7)), enjoining the law would 12 fundamentally alter the program at issue. 13 argument and upholding the injunction, we spoke of the "ADA's 14 preemption of these statutory provisions." 15 (emphasis added). 16 hold that Title II preempted facially nondiscriminatory state Rejecting this Id. at 38 n.10 While the NYSLRS argues that Hargrave "did not 8 The same result obtains when considering whether "federal law is in 'irreconcilable conflict' with state law." Levitin, 159 F.3d at 705. As discussed supra Part I.D.1, the relevant provision of the ADA distinguishes between two categories of requirements: "rules, policies, [and] practices" which are subject to reasonable modification, and "essential eligibility requirements," which are not. 42 U.S.C. § 12131(2). As we have seen, not all formal legal eligibility requirements are "essential eligibility requirements," which raises the possibility that, in certain cases, a state law may fall into the category of the "rules, policies, [and] practices" subject to reasonable modification. And if indeed a modification of a state law was found in a particular case to be a "reasonable modification" to a "rule[], polic[y], or practice[]," but the state law in question did not provide for modification in those circumstances, there would be an "irreconcilable conflict" between the dictates of the ADA and state law, necessitating preemption. Levitin, 159 F.3d at 705. 36 1 laws or mandated waiver of such laws," NYSLRS Br. at 21, it 2 provides no persuasive reason why, in light of the concerns 3 discussed above, Title II would preempt facially discriminatory 4 laws in pursuit of its broad purpose, but fail to preempt state 5 law when necessary to achieve a reasonable modification to 6 accomplish the same broad goals. 7 Last, we observe that the proposition that the ADA 8 preempts inconsistent state law when appropriate and necessary to 9 effectuate a reasonable accommodation under Title II is also 10 consistent with decisions from our sister Circuits. 11 Barber v. Colorado Dep't of Revenue, 562 F.3d 1222, 1232-33 (10th 12 Cir. 2009) (ultimately concluding that there was no conflict 13 between state law and the ADA in the case before it, but 14 observing that the court "in no way affirm[ed] the district 15 court's conclusion that '[a]n accommodation that would have 16 required defendants to willfully ignore or violate the law is per 17 se not reasonable.'" (citation omitted)); Quinones v. City of 18 Evanston, Ill., 58 F.3d 275, 277 (7th Cir. 1995) ("[The 19 defendant] believes that it is compelled to follow the directive 20 from the state, but the Supremacy Clause of the Constitution 21 requires a different order of priority. 22 law is not a defense to liability under federal law; it is a 23 source of liability under federal law." (emphasis in original)); 24 Williams v. Gen. Foods Corp., 492 F.2d 399, 404 (7th Cir. 1974) 25 (similar). A discriminatory state As the Ninth Circuit explained: 37 See, e.g., 1 2 3 4 5 6 7 8 9 10 11 The court's obligation under the ADA . . . is to ensure that the decision reached by the state authority is appropriate under the law and in light of proposed alternatives. Otherwise, any state could adopt requirements imposing unreasonable obstacles to the disabled, and when haled into court could evade the antidiscrimination mandate of the ADA merely by explaining that the state authority considered possible modifications and rejected them. 12 13 14 15 16 17 18 19 20 21 We are mindful of the general principle that courts will not second-guess the public health and safety decisions of state legislatures acting within their traditional police powers. However, [under federal] antidiscrimination laws such as the ADA which require reasonable modifications to public health and safety policies, it is incumbent upon the courts to insure that the mandate of federal law is achieved. 22 Crowder, 81 F.3d at 1485 (citation omitted). 23 The NYSLRS argues that "Title II . . . requires 24 reasonable modification only of 'rules, policies, or practices' 25 - not state statutes," NYSLRS Br. 19, and seeks to distinguish 26 Crowder, which contemplated the modification of a mandatory 27 Hawaii State administrative regulation rather than a state 28 statute, see Crowder, 81 F.3d at 1481-85, on this ground, NYSLRS 29 Br. 21 n.6. 30 regulations have the force of law for these purposes as do 31 statutes. 32 P.2d 78, 90 (1999) (Under Hawaii law, "[a]dministrative rules, 33 like statutes, have the force and effect of law."); Allstate Ins. 34 Co. v. Rivera, 12 N.Y.3d 602, 608, 911 N.E.2d 817, 820, 883 35 N.Y.S.2d 755, 758 (2009) (under New York law, "[a] duly But as a general rule, duly promulgated state See, e.g., State v. Kotis, 91 Hawai'i 319, 331, 984 38 1 promulgated regulation . . . has the force of law." (internal 2 quotation marks omitted)). 3 preemptive force, we can discern no reason to distinguish between 4 the preemption of state statutes and state regulations. 5 Crosby, 530 U.S. at 372 n.6 (noting that "a variety of state laws 6 and regulations may conflict with a federal statute" and be 7 preempted). 8 the ADA to prohibit reasonable modifications to state statutes 9 when appropriate. 10 11 12 From the standpoint of the ADA's Cf. And for the reasons discussed above, we do not read We have examined NYSLRS's other arguments regarding Title II and find them unpersuasive. We therefore conclude that the district court erred in 13 dismissing the plaintiff's Title II claim against the NYSLRS on 14 the ground that "[r]equiring the State defendant to violate state 15 law is not a reasonable accommodation as a matter of law." 16 Jo C., 2011 WL 1748572, at *9, U.S. Dist. LEXIS 49567, at *27. 17 Because "the determination of what constitutes reasonable 18 modification is [a] highly fact-specific, . . . case-by-case 19 inquiry," "[w]hether the plaintiff['s] proposed alternative" to 20 New York's filing deadline "constitute[s] [a] reasonable 21 modification[] or [a] fundamental alteration[] cannot be 22 determined as a matter of law on the record before us." 23 81 F.3d at 1485; see also McGary v. City of Portland, 386 F.3d 24 1259, 1270 (9th Cir. 2004) ("[T]he question of what constitutes a 25 reasonable accommodation under the ADA 'requires a fact-specific, 26 individualized analysis of the disabled individual's 39 Mary Crowder, 1 circumstances and the accommodations that might allow him to meet 2 the program's standards.'" (quoting Wong v. Regents of Univ. of 3 Cal., 192 F.3d 807, 818 (9th Cir. 1999)). 4 5 E. The District Court's Decision as to Whether the Plaintiff Adequately Alleged that She is Disabled 6 Again: Title II of the ADA provides that "no qualified 7 individual with a disability shall, by reason of such disability, 8 be excluded from participation in or be denied the benefits of 9 the services, programs, or activities of a public entity, or be 10 subjected to discrimination by any such entity." 11 § 12132 (emphasis added). 12 physical or mental impairment that substantially limits one or 13 more major life activities of such individual; (B) a record of 14 such an impairment; or (C) being regarded as having such an 15 impairment . . . ." 16 activities" are further defined to include "caring for oneself, 17 performing manual tasks, seeing, hearing, eating, sleeping, 18 walking, standing, lifting, bending, speaking, breathing, 19 learning, reading, concentrating, thinking, communicating, and 20 working." 21 42 U.S.C. A "disability" is defined as "(A) a 42 U.S.C. § 12102(1). "Major life 42 U.S.C. § 12102(2). Although neither defendant argued to the district court 22 that the plaintiff had failed to plead adequately that she was 23 "disabled" within the meaning of the ADA, the district court 24 considered the issue sua sponte. 25 26 27 28 It concluded: The complaint does not sufficiently allege that plaintiff has a "disability" within the meaning of the ADA. Although plaintiff alleges that she has suffered from an 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 unidentified mental illness since adolescence, she does not allege any additional facts plausibly suggesting that such mental illness substantially limited one or more of her major life activities. Accordingly, plaintiff's complaint does not state a cognizable claim under Title II of the ADA. See, e.g., Tylicki v. St. Onge, 297 F. App'x 65, 67 (2d Cir. Oct. 28, 2008) (finding that the plaintiff's complaint did not adequately plead a disability under Title II of the ADA where it contained no allegations describing how his supposed mental condition substantially limited a major life activity). 16 Mary Jo C., 2011 WL 1748572, at *7, 2011 U.S. Dist. LEXIS 49567, 17 at *21. 18 Although the district court noted that it "would be 19 possible for plaintiff to amend her Title II claims to 20 sufficiently plead this element as against the Library unless 21 those claims would otherwise be futile," id. at *10 n.7, 2011 22 U.S. Dist. LEXIS 49567, at *33 n.7, it did not afford the 23 plaintiff this opportunity because it concluded that all of the 24 plaintiff's claims against both defendants were barred on other 25 sufficient, independent grounds. 26 On appeal, the plaintiff submits that "the failure to 27 provide her with an opportunity to present evidence of disability 28 can be cured by the usual practice of this Court to grant a party 29 leave to amend the complaint on a Rule 12(b)(6) motion." 30 Br. 17 (citing Bellikoff v. Eaton Vance Corp., 481 F.3d 110, 118 31 (2d Cir. 2007) ("[W]hen a motion to dismiss is granted, the usual 32 practice is to grant leave to amend the complaint." (internal 33 quotation marks omitted))). 41 Pl.'s 1 Inasmuch as the district court thought that it "would 2 be possible" for the plaintiff to amend her allegations regarding 3 her disability such that at least some claims could go forward, 4 Mary Jo C., 2011 WL 1748572, at *10 n.7, 2011 U.S. Dist. LEXIS 5 49567, at *33 n.7, in light of the fact that the plaintiff has 6 now requested leave to amend on appeal, and since our decision 7 today removes the futility the district court saw in allowing the 8 plaintiff to amend her complaint (at least as to claims against 9 the NYSLRS), we decline to pass on the sufficiency of the 10 plaintiff's allegations of disability on appeal. 11 vacate the district court's decision in this regard, and remand 12 with instructions to grant the plaintiff's motion for leave to 13 amend her complaint to plead adequate allegations of disability 14 if such a motion is made. 15 F. 16 Instead, we Title II's Abrogation of Sovereign Immunity NYSLRS argues that even if the plaintiff can state a 17 claim against it under Title II, Title II "fails to validly 18 abrogate the State's sovereign immunity for the reasonable 19 modification claim made here." 20 responds that, "[a]s appellant Mary Jo C. seeks injunctive relief 21 in connection with her claim against NYSLRS, this Court can avoid 22 adjudication of the Eleventh Amendment issue by permitting the 23 appellant to amend her complaint to" name a state official in his 24 official capacity as a defendant. 25 26 NYSLRS Br. 22. The plaintiff Pl.'s Reply Br. 13. "Under the well-known exception to [the Eleventh Amendment's grant of sovereign immunity from suit] first set 42 1 forth in Ex parte Young, 209 U.S. 123 (1908), . . . 'a plaintiff 2 may sue a state official acting in his official capacity -- 3 notwithstanding the Eleventh Amendment -- for prospective, 4 injunctive relief from violations of federal law.'" 5 Employees Bargaining Agent Coalition v. Rowland, 494 F.3d 71, 95 6 (2d Cir. 2007) (quoting In re Deposit Ins. Agency, 482 F.3d 612, 7 617 (2d Cir. 2007)); see also Harris v. Mills, 572 F.3d 66, 72 8 (2d Cir. 2009) (similar). 9 State Because of our well-settled policy of avoiding the 10 unnecessary adjudication of constitutional issues, see generally 11 Horne v. Coughlin, 191 F.3d 244, 246 (2d Cir.), cert. denied, 528 12 U.S. 1052 (1999), and because the NYSLRS concedes that the 13 "plaintiff could potentially seek injunctive relief from the 14 State Comptroller under Ex parte Young," NYSLRS Supp. Br. 17, we 15 decline to address the constitutionality of Title II's abrogation 16 of the State's sovereign immunity, and remand with instructions 17 to the district court to allow the plaintiff leave to amend her 18 complaint in an attempt to invoke the doctrine of Ex parte Young. 19 20 II. Title II Claim Against the Library A. The District Court's Decision 21 The plaintiff also asserted a claim against the Library 22 alleging that its failure to file an application on her behalf or 23 to reclassify her termination as an unpaid leave of absence 24 violated Title II of the ADA. 25 discrimination against persons with disabilities in three major 26 areas of public life: employment, which is covered by Title I of As noted, the ADA "forbids 43 1 the statute; public services, programs, and activities, which are 2 the subject of Title II; and public accommodations, which are 3 covered by Title III." 4 court dismissed this claim because it concluded that the 5 plaintiff, an employee of the Library, could bring a claim 6 against her employer under Title I of the ADA but not under Title 7 II. 8 9 Lane, 541 U.S. at 516-17. The district Title I of the ADA, "employment," provides in pertinent part that "[n]o covered entity shall discriminate against a 10 qualified individual on the basis of disability in regard to job 11 application procedures, the hiring, advancement, or discharge of 12 employees, employee compensation, job training, and other terms, 13 conditions, and privileges of employment." 14 Title I applies to government employers, which are "covered 15 entities."9 16 42 U.S.C. § 12112(a). Noting that the "Supreme Court" and "the Second Circuit 17 ha[ve] not expressly considered th[e] issue" of whether Title II 18 applies to employment discrimination, Mary Jo C., 2011 WL 19 1748572, at *11-*12, 2011 U.S. Dist. LEXIS 49567, at *36, and 9 The term "covered entity" is defined to include an "employer," 42 U.S.C. § 12111(2), which in turn is defined to include a "person engaged in an industry affecting commerce who has 15 or more employees." Id. § 12111(5)(A). The statute further defines "person" as including, see id. § 12111(7); id. § 12111(5)(B), non-federal "governments, governmental agencies, [and] political subdivisions," id. § 2000e(a), and defines "industry affecting commerce as including "any governmental industry, business, or activity," id. § 2000e(h), see generally Zimmerman v. Oregon Dep't of Justice, 170 F.3d 1169, 1172 (9th Cir. 1999). 44 1 acknowledging that "courts are split" on the issue, id. at *11, 2 2011 U.S. Dist. LEXIS 49567, at *35, the district court followed 3 what it described as the "well-reasoned decisions of the most 4 recent district court cases in this Circuit," to conclude that 5 "Title I of the ADA is the exclusive remedy for plaintiff's 6 claims of discrimination against the Library, all of which relate 7 to the 'terms, conditions, and privileges of [her] employment' 8 with that entity," id. at *12, 2011 U.S. Dist. LEXIS 49567, at 9 *39 (alteration in original) (quoting 42 U.S.C. § 12112(a)). 10 The district court also cited Zimmerman v. Oregon Dep't 11 of Justice, 170 F.3d 1169 (9th Cir. 1999), as the leading case 12 concluding that public employees' exclusive remedy against their 13 employers under the ADA is Title I. 14 "Congress unambiguously expressed its intent for Title II not to 15 apply to employment." 16 understanding" of the term "services, programs, or activities" in 17 Title II's command that "no qualified individual with a 18 disability shall, by reason of such disability, be excluded from 19 participation in or be denied the benefits of the services, 20 programs, or activities of a public entity," referred "only to 21 the 'outputs' of a public agency, not to 'inputs' such as 22 employment." 23 24 25 26 27 28 Id. at 1173. Zimmerman concluded that It reasoned that a "common Id. at 1174. First, employment by a public entity is not commonly thought of as a "service, program, or activity of a public entity." Second, the "action" words in the sentence presuppose that the public entity provides an output that is generally available, and that an 45 1 2 individual seeks to participate in or receive the benefit of such an output. 3 4 5 6 7 8 9 10 11 12 13 14 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 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. 15 16 17 18 19 20 21 22 23 24 25 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." 26 27 Id. The Zimmerman court concluded that "when viewed as a 28 whole, the text, context and structure of the ADA show 29 unambiguously that Congress did not intend for Title II to apply 30 to employment. 31 legislative history, and we do not defer to the Attorney 32 General's regulation," id. at 1178, which provides that Title II 33 does apply to employment actions against public employers, see 28 34 C.F.R. § 35.140(a). 35 Water Conservation Dist., 133 F.3d 816, 821 (11th Cir. 1998) 36 ("Extensive legislative commentary regarding the applicability of 37 Title II to employment discrimination [in the ADA's legislative Under these circumstances, we do not resort to Contra Bledsoe v. Palm Beach County Soil & 46 1 history] . . . is so pervasive as to belie any contention that 2 Title II does not apply to employment actions.") 3 In addition to cases following Zimmerman's analysis, 4 the district court noted dicta from the Supreme Court's decision 5 in Board of Trustees of University of Alabama v. Garrett, 531 6 U.S. 356 (2001): 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 [N]o party has briefed the question of whether Title II of the ADA . . . 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 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" (internal quotation marks omitted)). Id. at 360 n.1. 22 courts in this Circuit have cited this language before reaching 23 the conclusion that Title II does not apply to employee claims 24 against a public employer. 25 502 F. Supp. 2d 324, 332 (E.D.N.Y. 2007). 26 B. Like the district court here, other district See Fleming v. State Univ. of N.Y., Analysis 27 "[S]tatutory analysis necessarily begins with the plain 28 meaning of the law's text, and, absent ambiguity, will generally 29 end there." 30 (internal quotation marks omitted). 31 ascertain Congress's intent, we look first to the text and 32 structure of the statute' as the surest guide to congressional 33 intent." Dobrova v. Holder, 607 F.3d 297, 301 (2d Cir. 2010) "'Because our task is to Trustees of Local 138 Pension Trust Fund v. F.W. 47 1 Honerkamp Co., 692 F.3d 127, 134(2d Cir. 2012) (quoting Lindsay 2 v. Ass'n of Prof'l Flight Attendants, 581 F.3d 47, 52 (2d Cir. 3 2009)). 4 including differences between Title I and Title II, that Congress 5 did not intend to extend Title II to employment discrimination 6 claims, at least not those that are covered by Title I, see infra 7 note 12 and accompanying text. 8 Human Rights Project v. Dep't of Homeland Sec., 626 F.3d 678, 681 9 (2d Cir. 2010) ("Beginning, as we must, with the plain meaning of 10 We are persuaded primarily by the structure of the ADA, See Allard K. Lowenstein Intern. the statute's text and structure, we see no ambiguity."). 11 The ADA is divided into five separate titles: Title 12 I, "Employment"; Title II, "Public Services"; Title III, "Public 13 Accommodations"; Title IV, "Telecommunications"; and Title V, 14 "Miscellaneous Provisions." 15 1990, Pub. L. No. 101-336, 104 Stat. 327, 327-28 (1990). 16 title of a statute and the heading[s] of [its] section[s]' are 17 'tools available for the resolution of a doubt' about the meaning 18 of a statute." 19 234 (1998) (quoting Trainmen v. Baltimore & Ohio R. Co., 331 U.S. 20 519, 528-29 (1947)). 21 Garrett, the fact that "Title I of the ADA expressly deals with 22 th[e] subject" of employment discrimination, whereas Title II 23 "deal[s] with the 'services, programs, or activities of a public 24 entity,'" 531 U.S. at 360 n.1 (quoting 42 U.S.C. § 12132), 25 suggests that Congress did not intend Title II to reach 26 employment discrimination, see id. (citing Russello, 464 U.S. at Americans with Disabilities Act of "'[T]he Almendarez-Torres v. United States, 523 U.S. 224, As the Supreme Court indicated in dicta in 48 1 23 ("[W]here Congress includes particular language in one section 2 of a statute but omits it in another section of the same Act, it 3 is generally presumed that Congress acts intentionally and 4 purposely in the disparate inclusion or exclusion" (internal 5 quotation marks omitted))). 6 to separate the ADA into distinct titles covering different kinds 7 of discrimination, the Supreme Court has described the ADA as 8 "forbid[ding] discrimination against persons with disabilities in 9 three major areas of public life: employment, which is covered by And reflecting Congress's decision 10 Title I of the statute; public services, programs, and 11 activities, which are the subject of Title II; and public 12 accommodations, which are covered by Title III." 13 at 516-17. 14 Lane, 541 U.S. The division between Titles I and II is further 15 illustrated by their differing definitions of a "qualified 16 individual." 17 "As used in [Title I,] . . . 'qualified individual' means an 18 individual who, with or without reasonable accommodation, can 19 perform the essential functions of the employment position that 20 such individual holds or desires." 21 Title II defines the same term instead as an individual who 22 "meets the essential eligibility requirements for the receipt of 23 services or the participation in programs or activities provided 24 by a public entity." 25 26 Title I's definition speaks in terms of employment: 42 U.S.C. § 12111(8). But Id. § 12131(2). Moreover, Title I prohibits discrimination by a "covered entity," which it defines as, inter alia, "an employer," 49 1 id. § 12111(2), whereas Title II prohibits discrimination by a 2 "public entity," which it defines as, inter alia, "any State or 3 local government [or agency thereof]," id. § 12131(1). 4 "Title II does not include any definition relevant to 5 employ[ment], [by contrast with] Title I[]." 6 Meriden, No. 03 Cv. 1819, 2004 WL 2377079, at *4, 2004 U.S. Dist. 7 LEXIS 21104, at *15 (D. Conn. Sept. 30, 2004). 8 9 Thus, Cormier v. City of Also, Congress delegated the authority to promulgate regulations under the two titles to two different agencies. 10 Title I gives the Equal Employment Opportunity Commission the 11 authority to promulgate regulations interpreting that title. 12 U.S.C. § 12116. 13 that responsibility. 14 170 F.3d at 1178. 15 direction that the two agencies work together to avoid imposing 16 inconsistent standards governing employment discrimination suits 17 suggests "that it did not intend for the Attorney General to have 18 any power over employment under Title II; it never envisioned 19 that there could be a conflict." 20 42 But Title II entrusts the Attorney General with 42 U.S.C. § 12134(a). See also Zimmerman, And the fact that Congress included no Id. Title I also imposes various limitations on suits 21 against an employer which are absent from Title II. 22 I caps the amount of compensatory damages a plaintiff may recover 23 depending on the number of employees employed by the defendant 24 employer, 42 U.S.C. § 1981a(b)(3), and disallows punitive damages 25 in suits against governmental employers, id. § 1981a(b)(1), 26 "Title II has no such limitations," Cormier, 2004 WL 2377079, at 50 While Title 1 *7, 2004 U.S. Dist. LEXIS 21104, at *26. And although plaintiffs 2 filing suit under Title I must first exhaust administrative 3 remedies,10 it appears that those filing suit under Title II need 4 not do so, although we find a conclusion on the point unnecessary 5 to decide this case.11 It is an "elementary canon of 10 Title I incorporates the exhaustion requirement imposed by Title VII of the Civil Rights Act of 1964. ADA Title I incorporates various provisions from Title VII of the landmark Civil Rights Act of 1964. . . . One of these provisions . . . requires a claimant to file a charge of employment discrimination with the EEOC within 180 days after the discriminatory act. See [42 U.S.C.] § 2000e-5(e)(1). McInerney v. Rensselaer Polytechnic Inst., 505 F.3d 135, 138 (2d Cir. 2007). 11 Title II adopts the "remedies, procedures, and rights set forth" in the Rehabilitation Act at 29 U.S.C. § 794a. 42 U.S.C. § 12133. Courts have construed that section of the Rehabilitation Act as not imposing any exhaustion requirement as to claims against a recipient of federal funding, but as imposing one as to claims against a federal employer. See, e.g., Ryan v. Shawnee Mission Unified Sch. Dist. No. 512, 437 F. Supp. 2d 1233, 1253 54 (D. Kansas 2006). But "Title II of the ADA is not applicable to the federal government," Cellular Phone Taskforce v. F.C.C., 217 F.3d 72, 73 (2d Cir. 2000), so it would appear that Title II only incorporates the Rehabilitation Act's procedures applicable to recipients of federal funding, and thus does not impose an exhaustion requirement. Other courts have concluded that Title II contains no exhaustion requirement. See Bledsoe, 133 F.3d at 824 ("[T]he regulations . . . plainly state that exhaustion is not required." (citing 28 C.F.R. § 35.172, Appendix A ("At any time, the complainant may file a private suit pursuant to section 203 of the Act, 42 U.S.C. [§] 12133, whether or not the designated agency finds a violation."))). In Tsombanidis v. West Haven Fire Dept., 352 F.3d 565 (2d Cir. 2003), we strongly suggested that Title II does not impose an exhaustion requirement. It may be that once the governmental entity denies . . . an accommodation, [Title II of] the ADA [does not] require a plaintiff to 51 1 construction that a statute should be interpreted so as not to 2 render one part inoperative." 3 Pueblo of Santa Ana, 472 U.S. 237, 249 (1985), (quoting Colautti 4 v. Franklin, 439 U.S. 379, 392 (1979)). 5 public employees would nullify these statutory limits for a 6 significant category of employment discrimination plaintiffs." 7 Cormier, 2004 WL 2377079, at *7, 2004 U.S. Dist. LEXIS 21104, at 8 *26. 9 analyzing the Rehabilitation Act -- "it would make no sense for Mountain States Tel. & Tel. Co. v. "[A]pplying Title II to As the Seventh Circuit put it in a similar context -- while 10 Congress to provide . . . different sets of remedies, having 11 different exhaustion requirements, for the same wrong committed 12 by the same employer." 13 1318, 1321 (7th Cir. 1984). McGuinness v. U.S. Postal Serv., 744 F.2d exhaust the state or local administrative procedures. But a plaintiff must first use the procedures available to notify the governmental entity that it seeks an exception or variance from the facially neutral laws when pursuing a reasonable accommodation claim. . . . . This is not an exhaustion requirement but merely a requirement that plaintiffs first use the proper procedure to seek an exception or variance. If denied this request, they do not need to exhaust the administrative appeal process. Id. at 579 & n.8 (emphasis in original); see also Cormier, 2004 WL 2377079, at *6, 2004 U.S. Dist. LEXIS 21104, at *22-*23 ("The Second Circuit has not decided the issue, but has suggested that Title II may not require exhaustion."). However, out of an abundance of caution, and because plaintiff does not argue otherwise, we assume for present purposes but do not decide that Title II imposes no exhaustion requirement. 52 1 "[W]e are required to disfavor interpretations of 2 statutes that render language superfluous." 3 Blumenthal v. U.S. Dep't of the Interior, 228 F.3d 82, 88 (2d 4 Cir. 2000) (internal quotation marks omitted); see also Corley, 5 556 U.S. at 314 ("[O]ne of the most basic interpretive canons[ 6 is] that a statute should be construed so that effect is given to 7 all its provisions, so that no part will be inoperative or 8 superfluous, void or insignificant." (internal quotation marks 9 and alteration omitted)); Duncan, 533 U.S. at 174 (similar). Conn. ex rel. If 10 a public employee were able to bring a suit against her employer 11 for wrongful discrimination under both Title I and Title II, 12 Title I would apparently become superfluous in the context of a 13 suit against a public employer employing more than fifteen 14 persons - compare 42 U.S.C. § 12111(5)(A) (Title I does not 15 apply to an employer with fewer than 15 employees), with 42 16 U.S.C. § 12131(1)(Title II applies to all municipal entities 17 regardless of size) -- which is a construction we find highly 18 doubtful. 19 Pl.'s Reply Br. 24 ("[T]he proffered interpretation of Title II 20 does not render Title I entirely redundant.") (emphasis in 21 original). 22 Even the plaintiff here concedes nearly as much. See Accordingly, we conclude that the statute unambiguously 23 limits employment discrimination claims to Title I. 24 employee may not bring a Title II claim against his or her 53 A public 1 employer, at least when the defendant employer employs fifteen or 2 more employees.12 The plaintiff argues that we, like the Bledsoe court, 3 4 should consult Title II's legislative history. 5 the relevant provisions of the statute unambiguous, we do not 6 have warrant to do so. 7 Rucker, 535 U.S. 125, 132 (2002) ("[R]eference to legislative 8 history is inappropriate when the text of a statute is 9 unambiguous."); Ratzlaf v. United States, 510 U.S. 135, 147-48 10 (1994) ("[W]e do not resort to legislative history to cloud a 11 statutory text that is clear."). 12 But, having found See, e.g., Dep't of Hous. & Urban Dev. v. The plaintiff also argues that deference is due to the 13 Attorney General's regulations implementing Title II, which 14 contemplate employment discrimination claims. 15 35.140(a) ("No qualified individual with a disability shall, on 16 the basis of disability, be subjected to discrimination in 17 employment under any service, program, or activity conducted by a 18 public entity."). 19 deferring to an agency's regulations, a court must first employ 20 "'traditional tools of statutory construction' to determine 21 whether Congress has expressed its intent unambiguously on the 22 question before the court." 23 Chevron, 467 U.S. at 843 n.9). See 28 C.F.R. § But the Supreme Court has directed that before Zimmerman, 170 F.3d at 1173 (quoting "If the intent of Congress is 12 We need not, and do not, decide here whether a Title II claim may be brought against a public employer employing fewer than fifteen employees inasmuch as the Library has represented that it has fifteen or more. 54 1 clear, that is the end of the matter; for the court, as well as 2 the agency, must give effect to the unambiguously expressed 3 intent of Congress." 4 judiciary is the final authority on issues of statutory 5 construction and must reject administrative constructions which 6 are contrary to clear congressional intent." 7 Because we conclude that the statute is unambiguous, we do not 8 consider the Attorney General's regulations for this purpose. 9 Chevron, 467 U.S. at 842-43. "The Id. at 843 n.9. The plaintiff also argues that our prior statement in 10 Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d 11 37 (2d Cir. 1997), recognized as superseded on other grounds by 12 Zervos v. Verizon New York, Inc., 252 F.3d 163, 171 n.7 (2d Cir. 13 2001), that the word "discrimination" in Title II is a "catch-all 14 phrase that prohibits all discrimination by a public entity, 15 regardless of the context," id. at 45, establishes that we have 16 already decided that Title II applies to employment. 17 relevant part, Innovative only addressed (and rejected) White 18 Plains' argument that Title II did not apply to its zoning 19 decisions because "it contend[ed] that zoning does not constitute 20 a 'service, program, or activity.'" 21 whether Title II applies to employment discrimination was not 22 before the Court. 23 Id. at 44. But, in The question of And this statement must be considered in context. 24 Title II provides that "no qualified individual with a disability 25 shall, by reason of such disability, be excluded from 26 participation in or be denied the benefits of the services, 55 1 programs, or activities of a public entity, or be subjected to 2 discrimination by any such entity." 3 Innovative court first rejected White Plains' argument on the 4 ground that the word "activity" in the above quoted statutory 5 text was broad enough to encompass municipal zoning decisions. 6 117 F.3d at 44. 7 completely White Plains' argument, and would have been sufficient 8 to decide the issue before the Court. 9 then offered an alternative rationale for rejecting White Plains' 42 U.S.C. § 12132. The This reasoning was sufficient to reject But the Innovative Court 10 argument: that the statutory language "or be subjected to 11 discrimination by any such entity," 42 U.S.C. § 12132, was a 12 "catch-all phrase that prohibits all discrimination by a public 13 entity, regardless of the context," 117 F.3d at 45. 14 event, then, the statement in Innovative "was not essential to 15 the Court's holding because it was offered in the alternative[,] 16 and therefore it is [a] dictum that is not binding on us." 17 Willis Mgmt. (VT.), Ltd. v. United States, 652 F.3d 236, 243 (2d 18 Cir. 2011). 19 In any For the foregoing reasons, we affirm the district 20 court's dismissal of the plaintiff's Title II claims against the 21 Library.13 13 After dismissing the plaintiff's Title II claim against the Library, the district court observed that "Plaintiff does not seek leave to amend her complaint to assert a Title I ADA claim, nor refute the Library's contention that she cannot state a valid Title I ADA claim because she failed to exhaust her administrative remedies with respect to any such claim as required by 42 U.S.C. § 12117(a)." Mary Jo C., 2011 WL 1748572, at *12 n.11, 2011 U.S. Dist. LEXIS 49567, at *39 n.11. We do not 56 1 2 CONCLUSION For the foregoing reasons, the district court's 3 judgment of dismissal is vacated as to the plaintiff's Title II 4 claim against the NYSLRS. 5 to the district court to grant the plaintiff leave to amend her 6 complaint if she so wishes to allege facts supporting her claim 7 that she was disabled, and to attempt to state a claim invoking 8 the rule of Ex parte Young, 209 U.S. 123 (1908), and for further 9 proceedings consistent with this opinion. The case is remanded with instructions The district court's 10 judgment of dismissal is affirmed as to the plaintiff's Title II 11 claim against the Library. 12 decline to exercise supplemental jurisdiction over the 13 plaintiff's state law claims is vacated for reconsideration 14 depending on the course of the further proceedings contemplated 15 by this opinion. 16 17 The district court's decision to Costs of the plaintiff on appeal to be paid by NYSLRS to the plaintiff; the Library shall bear its own costs. express or mean to imply any opinion on our part as to whether the plaintiff should be allowed to amend her claims against the Library on remand. 57

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