Petersen v. University of Wisconsin Bd. of Regents

• Decision Date: 20 April 1993
• Docket Number: No. 93-C-46-C.,93-C-46-C.
• Citation: 818 F. Supp. 1276
• Parties: Thomas PETERSEN, Plaintiff, v. UNIVERSITY OF WISCONSIN BOARD OF REGENTS, Defendant.
• Court: U.S. District Court — Western District of Wisconsin

818 F. Supp. 1276

Thomas PETERSEN, Plaintiff, v. UNIVERSITY OF WISCONSIN BOARD OF REGENTS, Defendant.

No. 93-C-46-C.

United States District Court, W.D. Wisconsin.

April 20, 1993.

Eugenia G. Carter, La Follette & Sinykin, Madison, WI, for Thomas A. Petersen.

Bruce Olsen, Asst. Atty. Gen., Madison, WI, for University of Wisconsin Bd. of Regents.

OPINION and ORDER

CRABB, Chief Judge.

This is a civil action for declaratory, injunctive and monetary relief brought pursuant to § 203 of Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131, et seq. Plaintiff asserts that defendant terminated plaintiff's employment in violation of the Act when it refused to renew his employment contract, refused to give him a merit raise, refused to restore certain employment duties and created a hostile work environment because his physical disability required an accommodation of an 80% appointment. Jurisdiction is present under 28 U.S.C. §§ 1331 and 1343(a)(4).

The case is before the court on defendant's motion to dismiss the complaint without prejudice. Defendant contends that plaintiff may not bring his claim under Title II of the Act and, even if he can, he has failed to exhaust his required administrative remedies by not filing a charge of discrimination with the Equal Employment Opportunity Commission before bringing his claim in federal court.

In considering a motion to dismiss, the court must accept as true all well-pleaded factual allegations in the complaint, drawing all reasonable inferences in favor of the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 72, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984); Yeksigian v. Nappi, 900 F.2d 101, 102 (7th Cir.1990). The court may dismiss a complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6) only if "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir.1985) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). Although all reasonable inferences are to be drawn in favor of the plaintiff, the complaint must set forth factual allegations sufficient to establish the elements that are crucial to recovery under plaintiff's claim. Sutliff, Inc. v. Donovan Cos., 727 F.2d 648, 654 (7th Cir.1984). Legal conclusions without factual support are not sufficient. Benson v. Cady, 761 F.2d 335, 338 (7th Cir.1985).

I conclude that plaintiff may bring his discrimination claim under Title II of the Americans with Disabilities Act and that he is not required to exhaust his administrative remedies prior to bringing his claim in federal court. Accordingly, defendant's motion to dismiss will be denied.

In deciding the motion to dismiss, I must take as true all of the well-pleaded allegations of the complaint. For that purpose only, I accept as true the following allegations of fact made by plaintiff in his complaint.

ALLEGATIONS OF FACT

Plaintiff Thomas Petersen resides in Madison, Wisconsin. Defendant University of Wisconsin Board of Regents is the corporate body charged with governance of the University of Wisconsin System including the University of Wisconsin-Madison, which is an institution of higher education in Madison, Wisconsin. The University of Wisconsin-Madison employs over 25 employees and is a "public entity" as that term is defined in section 201 of the Americans with Disabilities Act, 42 U.S.C. § 12131(1). All alleged discriminatory employment practices took place in Madison, Wisconsin.

Plaintiff has been employed by the School of Business's Small Business Development Center at UW-Madison since May 1988. On August 31, 1992, plaintiff was informed that his employment contract would not be renewed for 1993-94 because his "personal needs" resulting from his disability did not mesh with the Center's needs. As a result, plaintiff will lose his job and all its benefits effective July 1, 1993. Plaintiff filed this civil complaint on January 19, 1993. Plaintiff did not file a charge of discrimination with the Equal Employment Opportunity Commission or any other federal or state agency prior to filing his complaint in this court.

OPINION

Defendant's motion is limited to the following issue: whether plaintiff is required to file a charge of discrimination with the Equal Employment Opportunity Commission prior to bringing a Title II claim of employment discrimination in federal court.

Titles I and II of the Americans with Disabilities Act

Subchapter I of the Americans with Disabilities Act is titled "Employment" and provides in relevant part:

No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement or discharge of employees, employee compensation, job training, and other terms, conditions and privileges of employment.

42 U.S.C. § 12112(a). A "covered entity" is defined as "an employer, employment agency, labor organization, or joint management-committee," see § 12111(2), and an "employer" includes persons engaged in industry affecting commerce who have 15 or more employees. See § 12111(5). A "person" includes a state or other governmental agencies. See § 12111(7) (taking the definition of "person" from Title VII of the Civil Rights Act, 42 U.S.C. § 2000e(a)). Defendant in this case is a state agency, see Wis.Stat. § 15.91, with 15 or more employees and is therefore subject to suit under Title I of the Act. Title I incorporates the procedures of Title VII of the Civil Rights Act of 1964, which require a plaintiff to file a charge with the Equal Employment Opportunity Commission prior to filing a civil claim in federal court. See 42 U.S.C. § 2000e-5(e) and (f)(1); Perkins v. Silverstein, 939 F.2d 463, 469-70 (7th Cir.1991).

Although plaintiff could have brought his claim under Title I of the Act, he chose to bring his claim under Title II of the Act entitled "Public Services." The relevant substantive provision of Title II reads:

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. "Public entity" includes any state or local government and any department, agency or other instrumentality of a state or local government. 42 U.S.C. § 12131(1)(A) and (B). Unlike Title I, which adopts the procedures set forth in Title VII of the Civil Rights Act requiring exhaustion of administrative remedies, Title II adopts the remedies, rights and procedures of Section 505 of the Rehabilitation Act of 1973, which does not require exhaustion of administrative remedies and allows a plaintiff to go directly to federal court. See Smith v. Barton, 914 F.2d 1330, 1338 (9th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 2825, 115 L.Ed.2d 995 (1991); 42 U.S.C. §§ 12117 and 12133 (outlining enforcement provisions of Title I and Title II respectively).

Although it is not obvious from the plain language of § 12132, the regulations issued by the Department of Justice make it clear that the prohibition against discrimination by public entities includes employment discrimination. See 28 C.F.R. § 35.140 ("No qualified individual with a disability shall ... be subjected to discrimination in employment under any service program, or activity conducted by a public entity."). The regulations promulgated under Title II cross-reference Title I of the Act in outlining the standards by which to judge employment discrimination under Title II of the Act:

(b)(1) For purposes of this part, the requirements of Title I of the Act, as established by the regulations of the Equal Employment Opportunity Commission in 29 CFR part 1630, apply to employment in any service, program, or activity conducted by a public entity if that public entity is also subjected to the jurisdiction of Title I.

28 C.F.R. § 35.40. Section (b)(2) of the same regulation provides that if the public entity is not also subject to the jurisdiction of Title I, the requirements of section 504 of the Rehabilitation Act of 1973 will apply.

It is unclear from defendant's briefs whether defendant is contending that plaintiff is precluded from bringing his claim under Title II of the Act at all because his claim falls also under the purview of Title I. However, the core of defendant's argument is that whether plaintiff brings his claim under Title I or Title II, he must comply with the administrative requirements of Title I. Because defendant provides no support for the position that plaintiff is precluded from bringing his claim under Title II of the Act and because there is no language in the statute or regulations that would sustain such a position, I will address only the question whether plaintiff must exhaust his administrative remedies.

Exhaustion of Administrative Remedies

Defendant contends that plaintiff is required to file an administrative claim with the Equal Employment Opportunity Commission prior to bringing his claim in this court whether he is proceeding under Title I or Title II of the Act. Any analysis must begin with the plain language of the applicable statute. The enforcement section of Title II provides that

the remedies, procedures and rights set forth in section 794a of Title 29 the Rehabilitation Act of 1973 shall be the remedies, procedures, and rights this subchapter provides to any person alleging discrimination on the basis of disability in violation of section 12132 of this title.

42 U.S.C. § 12133. There is no dispute that the Rehabilitation Act of 1973 does not require non-federal employees to exhaust administrative remedies prior to bringing a private right of action in federal court. Both the Rehabilitation Act of 1973 and Title VI of...