Elwell v. Oklahoma ex rel. Bd. of Regents of Univ. of Okla.

Decision Date11 September 2012
Docket NumberNo. 11–6061.,11–6061.
Citation693 F.3d 1303
PartiesJudy ELWELL, Plaintiff–Appellant, v. State of OKLAHOMA, ex rel., BOARD OF REGENTS OF the UNIVERSITY OF OKLAHOMA, Defendant–Appellee.
CourtU.S. Court of Appeals — Tenth Circuit


Validity Called into Doubt

28 C.F.R. § 35.140(a)Courtney D. Powell of Lester, Loving & Davies, P.C., Edmond, OK, for PlaintiffAppellant.

Shawnae E. Robey, Office of Legal Counsel, University of Oklahoma (Matthew R. Stangl with her on the brief), Norman, OK, for DefendantAppellee.

Before GORSUCH, HOLMES, and MATHESON, Circuit Judges.

GORSUCH, Circuit Judge.

Does the Americans with Disabilities Act create two separate but overlapping causes of action for employment discrimination? Everyone agrees Title I of the ADA authorizes the disabled to bring employment discrimination claims: it discusses the issue at length and in detail. But can a party bring an employment discrimination claim under Title II as well? Even though Title II never mentions employment and expressly seeks instead to root out discrimination against the disabled in the provision of public services? Judy Elwell tried to convince the district court Title II does this duplicative work, but that court disagreed, and in the end we must too.

For years, Ms. Elwell worked at the University of Oklahoma. It was mostly an office job—researching and writing, taking notes and typing. Relatively recently, Ms. Elwell began to suffer from a degenerative spinal disc condition. While she says her disability didn't prevent her from performing the essential functions of her job, she did seek certain accommodations from her employer. Her amended complaint doesn't tell us what those requested accommodations were, but it does charge the University with refusing to provide them—and, what's worse, ultimately firing her because of her disability.

All this led Ms. Elwell to file suit. She alleged violations of both Title II of the ADA, 42 U.S.C. § 12101 et seq., and the Oklahoma state Anti–Discrimination Act (OADA), Okla. Stat. tit. 25, § 1301 et seq. The district court, however, soon dismissed her amended complaint, holding that Title II does not provide a cause of action for employment discrimination and that Oklahoma had not waived its immunity from suit under the OADA.

Starting with her federal claim first, there's no dispute that Title I of the ADA permits actions for employment discrimination. But what's less clear is whether Title II does the same thing. Ms. Elwell insists the answer is yes; the University and the district court are sure the answer is no. Though the ADA was originally enacted in 1990, the question remains an open one in this circuit. We've highlighted the question before, but not yet decided it. See Davoll v. Webb, 194 F.3d 1116, 1130 (10th Cir.1999). Today, we must.

In approaching the question, we begin as always with the language of the statute. Most specifically, it says this:

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.

42 U.S.C. § 12132.

As comes apparent enough from its grammar, the statute contains two primary clauses. The first prevents “qualified individual[s] with a disability” from being “excluded from participation in or be[ing] denied the benefits of the services, programs, or activities of a public entity.” The second prevents “qualified individuals” from being “subjected to discrimination by” the public entity. Everyone before us agrees that the University is a “public entity” for purposes of Title II. So the remaining question we face is whether one, both, or neither of these clauses gives rise to a cause of action for employment discrimination.

Beginning with the first clause, the question it poses is this: can “employment” be described fairly as a service, program, or activity of a public entity like the University? We think not. Ordinarily speaking, an agency's services, programs, and activities refer to the “outputs” it provides some public constituency. The phrase does not refer to the “inputs,” like employees, needed to make an agency's services, programs, and activities possible. A university's services, programs, and activities might include courses in Bach, biophysics, or basket weaving—outputs provided to its students—but not the professors, piano tuners, or other people needed to make those offerings possible. Employing people isn't a service, program, or activity the university provides: it is a means or method the university uses to provide its services, programs, and activities. On this much, nearly every court to have faced the question agrees, holding the plain language of the first clause of § 12132 does not reach employment.1

A close look at the statutory terms confirms their point. “Services” are ordinarily understood as acts “done for the benefit ... of another.” Webster's Third New International Dictionary 2075 (2002); see also 15 Oxford English Dictionary 34 (2d ed. 1991) (“The work or duty of a servant; the action of serving a master.”). We don't doubt that universities undertake a wide range of acts designed to benefit their students, both in the classroom and beyond. A university may offer academic instruction, meals and living quarters, even places to play and make friends—doing all of these things to benefit its students. A university may employ people as a means to provide these benefits. But one doesn't usually think of employing people as itself a benefit a university seeks to provide, as some sort of end in and of itself.

Much the same might be said of the term “program.” The statute says that disabled persons may not be denied the right to “participat[e] in” or receive the “benefits of” a public entity's “programs.” As a matter of plain language, this surely prohibits a public entity from denying access to a public program like social security. Or, in the university context, denying access to, say, a foreign exchange program. But we don't ordinarily understand employees who help make programs possible as themselves participating in or receiving their benefits. The phrase “programs of a government entity” refers to its “project [s] or scheme[s],” Webster's, supra, at 1812; see also 12 Oxford English Dictionary, supra, at 589 (“a planned series of activities or events”)—not, usually at least, to the employment of those needed to effect an agency's projects and schemes.

Now, one might well wonder whether the term “activity” might bear a broader meaning. In one sense, after all, the term “activity” could encompass anything a public entity does. See Webster's, supra, at 22 (defining “activity” as “natural or normal function or operation”). But a statutory term often takes on a shade of meaning by the company it keeps. See Freeman v. Quicken Loans, Inc., ––– U.S. ––––, 132 S.Ct. 2034, 2042, 182 L.Ed.2d 955 (2012) ([T]he commonsense canon of noscitur a sociis ... counsels that a word is given more precise content by the neighboring words with which it is associated”). And here the placement of the term “activity” suggests an effort to capture all the outputs the public entity provides to the public it serves, to be comprehensive in that respect, not necessarily to rope in everything the entity does. After all, if that were the point the earlier listed terms “services” and “programs” would become superfluous, eaten up by the all-encompassing term “activities,” and we are always hesitant to assume Congress included pointless language in its statutory handiwork. See TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001) (“It is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that ... no clause, sentence, or word shall be superfluous....” (internal quotation marks omitted)).

Tending to confirm our understanding of the term “activity” and the whole of the first clause is this. If Congress had wanted to prohibit discrimination in all aspects of a public entity's operations, it easily could have said just that—indeed, it has in other anti-discrimination statutes. See, e.g.,20 U.S.C. § 1687(1)(A) (Title IX) (defining “program or activity” to mean “all of the operations of ... [any] instrumentality of a State or of a local government”); 29 U.S.C. § 794(b)(1)(A) (Rehabilitation Act) (same). The fact Congress chose different language in Title II strongly suggests a different meaning at work. See N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 530, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982) ([A]lthough two statutes may be similar in language and objective, we must not fail to give effect to the differences between them.”).

But even if the first clause of § 12132 doesn't encompass employment discriminationclaims, we still must ask: what about the second? Ms. Elwell argues that the phrase “or be subjected to discrimination by any such entity” is a “catch-all” prohibiting discrimination by a public entity, regardless whether it occurs in a service, program, or activity the entity provides or in some other way or function. On this view, the second clause effectively applies the ADA's antidiscrimination mandate to any operation of a public entity, including employment.

An attractive possibility at first blush, but this reading has a serious problem of its own. Remember that § 12132 prohibits discrimination only against “qualified individuals.” In § 12131(2), Congress defines “qualified individual[s] to include only those “individual[s] with a disability who ... meet[ ] the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2) (emphases added). And, as we have already explained, virtually every court to face the question has...

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