Brumfield v. City of Chi.

• Decision Date: 06 November 2013
• Docket Number: 11–3836.,Nos. 11–2265,s. 11–2265
• Citation: 735 F.3d 619
• Parties: Linda BRUMFIELD, Plaintiff–Appellant, v. CITY OF CHICAGO, Defendant–Appellee. Linda Brumfield, Plaintiff–Appellant, v. City of Chicago, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

735 F.3d 619

Linda BRUMFIELD, Plaintiff–Appellant,

v.CITY OF CHICAGO, Defendant–Appellee.

Linda Brumfield, Plaintiff–Appellant,

v.City of Chicago, Defendant–Appellee.

Nos. 11–2265, 11–3836.

United States Court of Appeals,Seventh Circuit.

Argued Sept. 18, 2012.

Decided Nov. 6, 2013.

Held Invalid

28 C.F.R. § 35.140(a)Kenneth N. Flaxman, Michael J. Petro, Attorneys, Angela M. Rentz, Chicago, IL, for Plaintiff–Appellant.

Kerrie Maloney Laytin, Attorney, Office of the Corporation Counsel, Chicago, IL, for Defendant–Appellee.

Before FLAUM, SYKES, and TINDER, Circuit Judges.

SYKES, Circuit Judge.

These consolidated appeals raise a question of first impression in this circuit: Does Title II of the Americans with Disabilities Act (“ADA”) cover employment-related disability discrimination? Title II provides that state and local governments may not exclude eligible disabled persons from “participation in” or “the benefits of” governmental “services, programs, or activities” or otherwise “subject[ ]” an eligible disabled person “to discrimination.” See42 U.S.C. § 12132. Title I, in contrast, specifically prohibits employment discrimination on the basis of disability. See id. § 12112(a).

The circuits are split on whether Title II applies to disability discrimination in public employment, supplementing the remedy in Title I. Two circuits have squarely held that it does not apply in this context, leaving Title I as the exclusive ADA remedy for claims of disability discrimination in both public and private employment. See Elwell v. Okla. ex rel. Bd. of Regents of the Univ. of Okla., 693 F.3d 1303 (10th Cir.2012); Zimmerman v. Or. Dep't of Justice, 170 F.3d 1169 (9th Cir.1999). One circuit has reached the opposite conclusion. See Bledsoe v. Palm Beach Cnty. Soil & Water Conservation Dist., 133 F.3d 816 (11th Cir.1998).

The issue arises here in a flurry of lawsuits brought by Linda Brumfield, who was a Chicago police officer from 1999 until she was fired in 2010. She alleges that in 2006 she began to experience unspecified “psychological problems” and the City required her to submit to periodic psychological evaluations to determine whether she was capable of performing her job. Each time she was found fit for duty. In the meantime, however, the Chicago Police Board suspended her three times and fired her in 2010.

Brumfield sued the City of Chicago for employment discrimination, splitting her claims across three lawsuits; only the second and third are relevant here. The second suit alleged claims under Title II of the ADA and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), and the third suit alleged a claim under Title I of the ADA. The district court held that Title II applied in this context but dismissed the second suit for failure to state a claim under either Title II or the Rehabilitation Act. A different district judge dismissed the Title I claim in the third suit as barred by res judicata.

We affirm, though on somewhat different reasoning. We join the Ninth and Tenth Circuits and hold that Title II of the ADA does not cover disability discrimination in public employment; this kind of claim must be brought under Title I. The Rehabilitation Act claim fails because Brumfield has not alleged that she was suspended or fired by reason of disability. Finally, Brumfield does not argue that the district court's res judicata ruling was mistaken but, rather, skips right to the merits of her Title I claim. She has thus waived any challenge to the dismissal of the Title I claim on preclusion grounds.

I. Background

We take the following facts from Brumfield's complaints, accept them as true, and draw reasonable inferences in her favor. See McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 885 (7th Cir.2012). In 1999 the City of Chicago hired Brumfield as a full-time, non-probationary police officer. In 2006 she began to experience unspecified “psychological problems” that interfered with her ability to sleep, eat, and concentrate. The City became aware of these difficulties and required her to submit to psychological examinations on four separate occasions between June 2006 and August 2007. Each time Brumfield was found capable of continuing her work as a police officer, though the examiners informed the City that she was vulnerable to workplace stress.

In April 2008 Brumfield filed a complaint in federal district court in Northern Illinois alleging that subjecting her to psychological examinations amounted to discrimination on account of race, sex, and sexual orientation in violation of federal and state anti-discrimination laws. The case was assigned to Judge Harry Leinenweber. In August 2008 while the case was still pending, the City suspended Brumfield without pay pending discharge proceedings before the Chicago Police Board. Brumfield alleges that this disciplinary measure arose out of an “incident” in June 2006; the complaint provides no factual detail. The Police Board rejected the City's discharge recommendation but suspended Brumfield without pay for 180 days.

In March 2009—before the suspension expired—the City again suspended Brumfield without pay pending discharge proceedings. Brumfield informs us in her brief that this suspension also related to an “incident” in June 2006, but again her complaint contains no factual detail. The Police Board did not discharge her but suspended her without pay for another 180 days.

In September 2009—before the Police Board had issued its second suspension order and before Brumfield returned to work—the City again suspended her without pay pending a third discharge proceeding. Brumfield's complaint does not specify the basis for this disciplinary measure, but in her brief she states that it arose from an April 2007 incident in which she told her captain that she was going to be injured on duty and then fell to the ground, feigning injury. This time the Police Board sustained the City's disciplinary charge and terminated Brumfield's employment.

In August 2010—with her earlier employment-discrimination case still pending—Brumfield filed a second lawsuit in the Northern District of Illinois focusing on her suspensions and discharge, which she alleged violated Title II of the ADA, 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a). This second suit also included a state-law claim for judicial review of the Police Board's latest suspension order and its decision to terminate her employment. The new case was also assigned to Judge Leinenweber. Brumfield eventually voluntarily dismissed the first case; it has no further bearing on these appeals. The City then moved to dismiss the second case pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, advancing three arguments: (1) Title II of the ADA does not cover employment discrimination; (2) Title I, which does cover employment discrimination, was not available because Brumfield failed to exhaust administrative preconditions to filing suit; and (3) Brumfield failed to state a claim under either the ADA or the Rehabilitation Act. In an oral ruling, the district court dismissed the federal claims and relinquished supplemental jurisdiction over the state-law claim. The judge held that Title II of the ADA applies to the employment decisions of public entities like the City but that Brumfield's complaint failed to state a claim under either the ADA or the Rehabilitation Act. Brumfield appealed; this is Appeal No. 11–2265.

In August 2011 while her appeal was pending, Brumfield filed a third lawsuit against the City, this time alleging a violation of Title I of the ADA. The complaint contained no new factual allegations; the only difference was that Brumfield now alleged a claim under Title I of the ADA and complied with the administrative preconditions to suit. The new case was assigned to Judge Matthew Kennelly, who dismissed it as barred by res judicata. Brumfield appealed that judgment as well; this is Appeal No. 11–3836. We ordered the appeals consolidated.

II. Discussion

A. ADA Title II Claim

The district court dismissed Brumfield's Title II claim for failure to state a plausible claim for relief. In the process, however, the court held that Title II of the ADA prohibits disability discrimination in state and local public employment, supplementing the remedy provided in Title I. The City disagrees and argues that Title II does not apply.

Whether Title II applies to employment discrimination is an open question in this circuit. Staats v. County of Sawyer, 220 F.3d 511, 518 (7th Cir.2000). The Supreme Court has noted the question but never directly addressed it. Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 360 n. 1, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). Three of our sister circuits, however, have directly decided the issue. The Ninth and Tenth Circuits have held that Title II unambiguously does not apply to employment-related disability discrimination. See Elwell, 693 F.3d at 1313–14;Zimmerman, 170 F.3d at 1178.¹ The Eleventh Circuit has reached the opposite conclusion. See Bledsoe, 133 F.3d at 825.²

We have considered whether it makes sense to leave the question undecided here. After all, Brumfield brought a Title I claim in her third suit, and there is no doubt that Title I prohibits employment discrimination on the basis of disability. See, e.g., Tennessee v. Lane, 541 U.S. 509, 516–17, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004) (The ADA “forbids discrimination against persons with disabilities in three major areas of public life: employment, which is covered by Title I of the statute; public services, programs, and activities, which are the subject of Title II; and public accommodations, which are covered by Title III.”). But we cannot sidestep the issue of Title II's scope by focusing on the Title I claim in Brumfield's third suit. Judge Kennelly dismissed that complaint and entered judgment on res judicata grounds. Although Brumfield argued against preclusion in the...