Alberti v. San Francisco Sheriff's Dept., C-98-2834 WHO.

Citation32 F.Supp.2d 1164
Decision Date25 November 1998
Docket NumberNo. C-98-2834 WHO.,C-98-2834 WHO.
CourtU.S. District Court — Northern District of California
PartiesRobert ALBERTI, Plaintiff, v. CITY AND COUNTY OF SAN FRANCISCO SHERIFF'S DEPARTMENT, et al., Defendants.

Vicki A. Laden, Boxer & Gerson, Oakland, CA, for plaintiff.

Janet Carroll Richardson, City Attorney's Office, San Francisco, CA, for City and County of San Francisco Sheriff's Department.

Troy D. Wiggins, Wiggins, Robin & Richard, San Francisco, CA, for Santa Rosa Junior College and Sonoma County Junior College District.

OPINION

ORRICK, District Judge.

In this Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., action brought by plaintiff Robert Alberti ("Alberti") against defendants City and County of San Francisco Sheriff's Department ("Sheriff's Department"), Santa Rosa Junior College, and Sonoma Junior College District, defendants now move for dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth hereinafter, the motion is granted in part, and denied in part.

I.

These facts are drawn from Alberti's complaint. Alberti, a sufferer of various learning disabilities, was hired as a Deputy Sheriff by the Sheriff's Department in February 1995. As a condition of his employment, Alberti was required to attend and successfully pass a course called "Basic Law Enforcement" at the Santa Rosa Training Center of the Santa Rosa Junior College.

During the hiring process, Alberti informed the Sheriff's Department that he had a history of learning disabilities. To substantiate his claim, Alberti provided the Sheriff's Department with documents detailing his problems. He also requested that the Sheriff's Department provide him with reasonable accommodations, including untimed and oral testing, during the Law Enforcement training course. The Sheriff's Department refused Alberti's request and insisted that he attend the course as scheduled, with no accommodations.

Alberti was not able to satisfactorily complete the course work at the Training Center. He also maintains that the instructional and administrative staff at the Santa Rosa Training Center harassed him on the basis of his disability and improperly disseminated information about his disability.

As a result of his inability to satisfactorily complete his course work at the Training Center, the Sheriff's Department terminated Alberti on May 10, 1996.

Alberti filed this suit on July 17, 1996, under Titles I and II of the ADA, 42 U.S.C. § 12101 et seq., and the California Fair Employment and Housing Act ("FEHA"). Cal. Gov't Code § 12940 et. seq.

II.

In identical motions, defendants move to dismiss this action on three grounds. First, they argue that Alberti's first, second, third, and fourth causes of action under Title I of the ADA must be dismissed because Alberti has failed to exhaust his administrative remedies. Second, they argue that Alberti's first, second, third, and fourth causes of action under Title II of the ADA must be dismissed because Title II does not create a cause of action for employment discrimination. Alternatively, they contend that if a Title II cause of action for discrimination is recognized, Alberti's Title II claim is time barred. Finally, defendants assert that Alberti's fifth, sixth, seventh, and eighth causes of action under the FEHA should also be dismissed because he has failed to exhaust his administrative remedies.

III.

The Court begins first with the more complex issue regarding Alberti's ability to sue for employment discrimination under Title II of the ADA.

A.

Alberti argues strenuously that Title II of the ADA covers employment discrimination. Defendants counter that no such claim exists under Title II and argue that Title I is the ADA's exclusive remedy for Alberti's employment discrimination claim. The practical effect of the parties' arguments about Title II's meaning will lead to different results on the question of this suit's timeliness. (See discussion, infra Section C, regarding timeliness of Alberti's ADA claims.)

Title II falls under the subchapter II heading "Public Services." Pub.L. 101-336, Title II, §§ 202-205, July 1990, 104 Stat. 337 (1990) (codified as amended at 42 U.S.C. §§ 12131-12134). Title I covers public entities such as state or local governments. 42 U.S.C. § 12131. Section § 12132 codifies § 202 of Title I and provides:

Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

(Emphasis added.)

Section 202 of Title II states that the remedies and procedures applicable to § 505 of the Rehabilitation Act of 1973, 29 U.S.C. § 794a, shall apply to Title II claims. 42 U.S.C. § 12133.

The statute's last proviso, barring "discrimination by any such entity" does not mention employment discrimination. The omission of the word "employment" from the statute forms the centerpiece of defendants' argument. They contend that Title I does not provide a private cause of action for employment discrimination because the word "employment" is not appended to the broad antidiscrimination clause found in the last phrase of § 12132.

Defendants also assert that interpreting Title II as extending to employment discrimination would render Title I redundant, because Title I creates a comprehensive scheme for addressing employment discrimination by both private and public entities. Defendants argue that § 12132 was intended to prohibit state and local governments from discriminating with respect to government services such as public transportation, education, or welfare benefits, not employment.

The United States Department of Justice's ("DOJ") interpretation of Title II is consistent with Alberti's argument that Title II covers employment discrimination. The DOJ's interpretative regulations for Title II state: "Title II of the ADA applies to all activities of public entities, including their employment practices." 28 C.F.R. pt. 35, App. A. The DOJ has promulgated regulations consistent with this interpretation: "No qualified individual with a disability shall, on the basis of disability, be subjected to discrimination in employment under any service, program, or activity conducted by a public entity." 28 C.F.R. § 35.140(a) (emphasis added).

The Ninth Circuit has never directly addressed the issue of whether Title II creates a cause of action for employment discrimination. It did, however, in dicta, permit the plaintiffs in Norman-Bloodsaw v. Lawrence Berkeley Laboratory, 135 F.3d 1260, 1272-73 (9th Cir.1998), to proceed under Title II with their employment discrimination claims.

In that case, plaintiffs filed suit against their employer, Lawrence Berkeley Laboratory, a research institute jointly operated by state and federal agencies. The plaintiffs alleged that Lawrence Berkeley Laboratory forced them to submit to sickle cell and syphilis testing as condition of their employment. They maintained that the forced testing violated, among other things, Title VII and the ADA. Id. at 1264, 1271-74.

Without directly deciding whether Title II authorizes suits against state and local governments for employment discrimination, the Court noted in passing that the plaintiffs could challenge the medical examinations that occurred on or after January 26, 1992 under Titles I and II of the ADA, because the "relevant portions" of Titles I and II, which apply to public entities only, went into effect on January 26, 1992 and July 26, 1992, respectively. Id. at 1273 & n. 21. It ultimately reversed the district court's grant of summary judgment for defendants because it found that material and disputed issues of fact existed regarding how the test was administered and whether the plaintiffs consented to the testing. Id. at 1275.

Similarly, the Fourth Circuit also appears inclined to recognize a cause of action for employment discrimination under Title II. In Doe v. University of Maryland Medical System Corp., 50 F.3d 1261, 1264 (4th Cir.1995), the Fourth Circuit considered a Title II challenge brought by a neurosurgical resident who sued a hospital for terminating him because he was infected with the AIDS virus. The parties did not dispute that the University of Maryland Medical Systems Corporation ("UMMSC") was a public entity subject to the provisions of Title II of the ADA. Id. at 1264. The Court acknowledged this by noting that "[t]he parties do not dispute that UMMSC is a `public entity' subject to the provisions of Title II of the ADA." Id. at 1264 n. 8. Because the parties did not raise the issue, the Court did not disagree with the assessment by raising the issue sua sponte. The Court implicitly agreed with the parties' assessment that Title II covered employment discrimination by setting forth a three-prong test that plaintiffs must meet in order to prove a claim of employment discrimination under § 504 of the Rehabilitation Act or Title II of the ADA. Id. at 1265.

The Eleventh Circuit is the only circuit court to fully address this issue. In Bledsoe v. Palm Beach County Soil & Water Conservation District, 133 F.3d 816 (11th Cir.1998), following a lengthy and thorough examination of Title II, including its statutory scheme and legislative history, it held that Title II covers claims for employment discrimination. Id. at 822-23. The majority of district courts have carefully followed the Bledsoe reasoning and the clear trend in the district courts is to permit employment discrimination claims to be brought under Title II.1

The district courts in the Ninth Circuit, however, have taken a different stand. Judges Conti and Smith have dismissed Title II claims alleging employment discrimination, finding that Title II applies only to discrimination in public services. Larramendy v. San Mateo Co....

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