Zimmerman v. Oregon Dept. of Justice

Decision Date18 March 1999
Docket NumberNo. 97-36101,97-36101
Parties9 A.D. Cases 215, 15 NDLR P 2, 99 Cal. Daily Op. Serv. 1954, 1999 Daily Journal D.A.R. 2533 Scot L. ZIMMERMAN, Plaintiff-Appellant, v. State of OREGON DEPARTMENT OF JUSTICE, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Arlene B. Mayerson, Disability Rights Education & Defense Fund, Inc., Berkeley, California; John L. Schilling, Blake & Schilling, L.L.P., Lake Oswego, Oregon, for the plaintiff-appellant.

Denise G. Fjordbeck, Assistant Attorney General, Oregon Department of Justice, for the defendant-appellee.

Marie K. McElderry, Attorney, United States Department of Justice, Washington, DC, for amicus curiae United States.

Appeal from the United States District Court for the District of Oregon Owen M. Panner, Senior Judge, Presiding. D.C. No. CV-97-00959-OMP.

Before: KOZINSKI, KLEINFELD, and GRABER, Circuit Judges.

GRABER, Circuit Judge:

Plaintiff brought this action claiming, in part, that defendant's employment practices discriminated against him in violation of Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131, et seq. The district court dismissed the action, holding that Title II of the ADA does not apply to employment. Addressing this issue of first impression for the Ninth Circuit, we affirm.


Because this is an appeal from the dismissal of an action pursuant to Fed.R.Civ.P. 12(b)(6), we accept as true the facts alleged in the complaint. Associated Gen. Contractors of Am. v. Metropolitan Water Dist., 159 F.3d 1178, 1181 (9th Cir.1998).

On January 21, 1995, defendant hired plaintiff on a trial basis as a child support agent. Plaintiff suffers from a disabling eye condition that renders him visually impaired. During his employment, plaintiff asked that defendant reasonably accommodate his disability. Defendant refused and thereafter retaliated against plaintiff. Finally, on December 18, 1995, defendant fired plaintiff.

On June 23, 1997, plaintiff filed this action alleging that defendant had violated Titles I and II of the ADA and a similar state anti-discrimination statute. Zimmerman v. Oregon Dep't of Justice, 983 F.Supp. 1327, 1328 (D.Or.1997). Defendant moved to dismiss the action pursuant to Fed.R.Civ.P. 12(b)(6). Id.

The district court first dismissed plaintiff's Title I claims, holding that plaintiff had failed to file a timely charge with the Equal Employment Opportunity Commission (EEOC). Id. at 1328-29. The court also dismissed plaintiff's state law claim, holding that defendant has Eleventh Amendment immunity. Id. at 1330-31. On appeal, plaintiff does not challenge either of those rulings.

Finally, the court dismissed plaintiff's Title II claim, holding that Title II does not apply to employment. Id. at 1329-30. The court acknowledged that it is possible to interpret the words of Title II broadly to cover employment. Id. at 1330. However, the court relied on contextual clues to reject that interpretation:

I reject plaintiff's interpretation of Title II because it is inconsistent with the structure of the ADA as a whole. In Title I, Congress created a comprehensive statutory scheme prohibiting employment discrimination. In Title II, headed "Public Services," Congress prohibited governments from discriminating against disabled persons in providing services such as Id. at 1329-30 (footnote and citations omitted). Plaintiff brings this timely appeal to challenge that decision.

                transportation or parks.  Allowing employment discrimination claims under Title II would make Title I almost completely redundant as applied to public employees.  After establishing a comprehensive statutory scheme in Title I to prohibit discrimination by both public and private employers, why would Congress then create a vague implied remedy for employment discrimination, available only to public employees?   Public employees would have no reason to bring discrimination claims under Title I if Title II allowed them to take claims directly to federal court without exhausting administrative remedies

We review de novo the district court's dismissal of an action pursuant to Fed.R.Civ.P. 12(b)(6). Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295 (9th Cir.1998).

A. Statutory Overview

The ADA contains five titles: Employment (Title I), Public Services (Title II), Public Accommodations and Services Operated by Private Entities (Title III), Telecommunications (Title IV), and Miscellaneous Provisions (Title V). 1 Americans with Disabilities Act of 1990, Pub.L. No. 101-336, 104 Stat. 327, 327-28 (1990). As those headings suggest, Title I applies specifically to employment:

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).

Congress has defined "covered entity" to include state employers such as defendant. The term "covered entity" includes an "employer." 42 U.S.C. § 12111(2). In turn, "employer" includes a "person engaged in an industry affecting commerce who has 15 or more employees." 42 U.S.C. § 12111(5)(A). Completing the picture of who is covered, the statute defines "person" and "industry affecting commerce" to include a governmental "industry, business or activity." See 42 U.S.C. § 12111(7) ("The terms 'person' ... and 'industry affecting commerce', shall have the same meaning given such terms in section 2000e of this title."); 42 U.S.C. § 2000e(a) ("The term 'person' includes one or more individuals, governments, governmental agencies, political subdivisions...."; 42 U.S.C. § 2000e(h) ("The term 'industry affecting commerce' means any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce and includes ... any governmental industry, business, or activity.").

Although Congress generally included governmental employers in Title I, it exempted the federal government from that Title. See 42 U.S.C. § 12111(5)(B) ("The term 'employer' does not include ... the United States, a corporation wholly owned by the government of the United States, or an Indian tribe...."). That being so, by including governmental employers in Title I, but at the same time excluding federal governmental employers, Congress was referring only to state and local governmental employers such as defendant.

Neither party disputes that Title I ordinarily would apply to plaintiff's action. However, Title I requires an employee first to file a charge with the EEOC in a timely manner. See 42 U.S.C. § 12117(a) (incorporating the charge requirement from Title VII of the Civil Rights Act of 1964, as amended). Plaintiff failed to satisfy that requirement and, thus, is left to argue that Title II also applies to state employment; Title II does not require him to file a charge with the EEOC.

B. Chevron deference

Title II is the "Public Services" title of the ADA. Congress required the Attorney General to promulgate regulations implementing Title II. See 42 U.S.C. § 12134(a). Pursuant to that grant of authority, the Attorney General 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.

has determined that Title II applies to employment:

28 C.F.R. § 35.140(a) (1998).

Under these circumstances, Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), governs our review of 28 C.F.R. § 35.140(a) and Title II. See, e.g., Does 1-5 v. Chandler, 83 F.3d 1150, 1153 (9th Cir.1996) (applying Chevron deference to other Title II regulations). Although the parties agree that Chevron applies, not surprisingly, they disagree about the outcome of a Chevron analysis.

In Chevron, the Supreme Court devised a two-step process for reviewing an administrative agency's interpretation of a statute that it administers. See Chevron, 467 U.S. at 842-44, 104 S.Ct. 2778. See also Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1452 (9th Cir.1996) ("The Supreme Court has established a two-step process for reviewing an agency's construction of a statute it administers."). Under the first step, we employ our "traditional tools of statutory construction" to determine whether Congress has expressed its intent unambiguously on the question before the court. Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. 2778. "If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842-43, 104 S.Ct. 2778. If, instead, Congress has left a gap for the administrative agency to fill, we proceed to step two. See id. at 843, 104 S.Ct. 2778. At step two, we must uphold the administrative regulation unless it is "arbitrary, capricious, or manifestly contrary to the statute." Id. at 844, 104 S.Ct. 2778.

Plaintiff and the Attorney General, as amicus, argue that Title II is ambiguous and thus requires us to defer to the Attorney General's regulation. Defendant, to the contrary, argues that Title II expresses Congress' intent unambiguously.

We agree with defendant. Congress unambiguously expressed its intent for Title II not to apply to employment. That being so, we end our inquiry at the first step of the Chevron analysis and accord the Attorney General's regulation no weight. See National Credit Union Admin. v. First Nat'l Bank & Trust Co., 522 U.S. 479, 118 S.Ct. 927, 938-39, 140 L.Ed.2d 1 (1998) ("Because we conclude that Congress has made it clear that the same common bond of occupation must unite each member...

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