Skinner v. Salem Sch. Dist..

• Decision Date: 07 July 2010
• Docket Number: Civil No. 09-cv-193-JL.
• Citation: 718 F.Supp.2d 186
• Parties: Carol SKINNER v. SALEM SCHOOL DISTRICT.
• Court: U.S. District Court — District of New Hampshire

718 F.Supp.2d 186

Carol SKINNER

v.SALEM SCHOOL DISTRICT.

Civil No. 09-cv-193-JL.

United States District Court,D. New Hampshire.

June 18, 2010.

Order Denying Reconsideration and Certification of Interlocutory Appeal July 7, 2010.

Carol Skinner, Salem, NH, pro se.

Debra Weiss Ford, Jackson Lewis LLP, Portsmouth, NH, for Salem School District.

MEMORANDUM ORDER

JOSEPH N. LAPLANTE, District Judge.

This case presents a question that has divided the federal circuit courts of appeal: whether a public employee may bring an employment discrimination claim under Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, which prohibits disability discrimination by public entities. Compare Bledsoe v. Palm Beach County Soil & Water Conservation Dist., 133 F.3d 816 (11th Cir.1998) (allowing such claims), with Zimmerman v. Or. Dep't of Justice, 170 F.3d 1169 (9th Cir.1999) (disallowing them). Plaintiff Carol Skinner sued her former employer, the Salem School District, alleging that it discriminated against her and ultimately fired her from a food service job because she has a disabling arthritic condition. This court, which has jurisdiction under 28 U.S.C. § 1331 (federal question), construed Skinner's pro se complaint as asserting a claim under Title II. ¹

The school district has moved for judgment on the pleadings, see Fed.R.Civ.P. 12(c), arguing that Title II cannot be used to bring an employment discrimination claim because the proper vehicle for such a claim is Title I, which expressly prohibits disability discrimination in employment. See 42 U.S.C. § 12112(a). After oral argument, the motion is denied. Although this court believes that the sounder construction of Title II excludes employment discrimination claims, our court of appeals has noted that “the language of Title II [is not] clear on this question” and that it “is not unheard of for individuals to have overlapping rights.” Currie v. Group Ins. Comm'n, 290 F.3d 1, 6 (1st Cir.2002). Since the statute is therefore ambiguous, this court must defer to the implementing agency, which has reasonably construed Title II as encompassing employment discrimination claims against public entities. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (requiring deference to implementing agency where it reasonably resolves a statutory ambiguity).

I. Applicable legal standard

A motion for judgment on the pleadings under Rule 12(c) is evaluated under essentially the same standard as a Rule 12(b)(6) motion for failure to state a claim. See Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir.2008). To survive such a motion, the party bringing the claims must make “factual allegations that ‘raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true.’ ” Simmons v. Galvin, 575 F.3d 24, 30 (1st Cir.2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Here, the school district's motion does not hinge on the specific facts alleged in Skinner's complaint; it raises a purely legal question about the scope of Title II. Questions of statutory interpretation are “ripe for resolution at the pleadings stage.” Id.

II. Analysis

The sole issue raised by the school district's motion is whether a public employee may bring an employment discrimination claim under Title II of the ADA, which provides:

[N]o qualified individual with a disability ^{[ 2 ]} 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. The school district argues that employment is not a public service, program, or activity within the meaning of Title II and falls instead under Title I, which expressly prohibits disability discrimination in employment. See 42 U.S.C. § 12112(a). Skinner argues, in response, that where the employer is a public entity, an employment discrimination claim may be brought under either Title I or Title II.

Many federal courts have already ruled upon this issue, including two circuit courts of appeal. They reached opposite conclusions. Compare Bledsoe, 133 F.3d at 816, 820-22 (allowing employment discrimination claims against public entities under Title II), with Zimmerman, 170 F.3d at 1169 (disallowing them). Both the Supreme Court and First Circuit have also commented on the issue, albeit in dicta. See Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 360 n. 1, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001); Currie, 290 F.3d at 6. This court will summarize each of those authorities before reaching its own conclusion.

A. Eleventh Circuit decision

In the first circuit court case to address this issue, the Court of Appeals for the Eleventh Circuit concluded that employment discrimination claims may be brought against public entities under Title II. See Bledsoe, 133 F.3d at 816. The court began by discussing congressional purpose and legislative history. It noted that Congress's stated intent in passing the ADA was “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities,” including in the employment context. Id. at 820 (citing 42 U.S.C. § 12101(b)(1)). Furthermore, the court noted that “[e]xtensive legislative commentary regarding the applicability of Title II to employment discrimination ... is so pervasive as to belie any contention that Title II does not apply to employment actions.” Id. at 821 (citing examples).

Turning to the statutory language, the Eleventh Circuit compared Title II with section 504 of the Rehabilitation Act, on which Title II was modeled. Id. Section 504 prohibits disability discrimination in “any program or activity receiving Federal financial assistance,” 29 U.S.C. § 794(a), much like how Title II prohibits disability discrimination in “the services, programs, and activities of a public entity,” 42 U.S.C. § 12132. In an earlier case, the Supreme Court had deemed it “unquestionable that ... section [504] was intended to reach employment discrimination.” Consol. Rail Corp. v. Darrone, 465 U.S. 624, 632, 104 S.Ct. 1248, 79 L.Ed.2d 568 (1984). The Eleventh Circuit reasoned that “Congress intended Title II to work in the same manner as Section 504.” Bledsoe, 133 F.3d at 821.

Indeed, the Eleventh Circuit emphasized that Congress used even broader language in Title II than in the Rehabilitation Act, adding a “catch-all” phrase at the end-i.e., protecting qualified individuals from being “subjected to discrimination”-that “prohibits all discrimination by a public entity, regardless of the context.” Id. at 822 (quoting Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 44-45 (2d Cir.1997)). In light of that “catch-all” phrase, the congressional purpose, the legislative history, and the Supreme Court's interpretation of the Rehabilitation Act, the Eleventh Circuit concluded that “employment coverage is clear from the language and structure of Title II.” Id.

Even if the statute were unclear, however, the Eleventh Circuit noted that the DOJ, to which Congress gave authority to promulgate regulations implementing Title II, see 42 U.S.C. § 12134, has expressly construed the statute as encompassing employment discrimination claims. See 28 C.F.R. § 35.140(a). Where a federal statute “is silent or ambiguous with respect to the specific issue” and Congress delegates “authority to the agency to elucidate a specific provision of the statute by regulation,” courts must defer to the agency's interpretation unless it is arbitrary or capricious. Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. Calling the DOJ regulation a “reasonable construction of statutory language,” the Eleventh Circuit deemed it worthy of such deference. Bledsoe, 133 F.3d at 823.

B. Ninth Circuit decision

In the other circuit court case addressing this issue, the Court of Appeals for the Ninth Circuit reached the opposite conclusion, ruling that Title II may not be used to bring an employment discrimination case against a public entity. See Zimmerman, 170 F.3d at 1169. While acknowledging that “most courts have held that Title II applies to employment” by virtue of the legislative history and the DOJ regulations, id. at 1183, the Ninth Circuit concluded that the analysis never should have gone that far, because “when viewed as a whole, the text, context, and structure of the ADA show unambiguously that Congress did not intend for Title II to apply to employment,” thus foreclosing any review of extrinsic sources. Id. at 1178.

Starting with the text, the Ninth Circuit interpreted Title II's phrase “services, programs, and activities” as referring “only to the ‘outputs' of a public agency, not to ‘inputs' such as employment.” Id. at 1174. As for the “catch-all” phrase at the end of Title II, the court concluded that it “relates back to the same ‘services, programs, or activities.’ ” Id. at 1175. In support of this reading, the court noted that Title II's heading is “Public Services” and that its definition of a “qualified individual” is a disabled person who “meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” Id. (quoting 42 U.S.C. § 12131(2)). The reason that Congress included the “catch-all” phrase, the court surmised, is to target intentional discrimination, in contrast to the preceding language, which targets de facto discrimination. Id. at 1176.

Turning to the ADA's structure, the Ninth Circuit emphasized that Title II says nothing about employment, whereas Title I expressly covers employment discrimination by public entities at the state and local level and imposes a number of specific conditions on such claims, including a requirement of administrative...