Supreme Court of the United States

Transcription

1 No. IN THE Supreme Court of the United States JUDY ELWELL, an individual, Petitioner, v. STATE OF OKLAHOMA EX REL. THE BOARD OF REGENTS OF THE UNIVERSITY OF OKLAHOMA, Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT PETITION FOR A WRIT OF CERTIORARI Counsel for Petitioner, Judy Elwell Andrew W. Lester Counsel of Record Courtney D. Powell LESTER, LOVING & DAVIES, P.C South Kelly Avenue Edmond, Oklahoma (405) alester@lldlaw.com December 10, 2012

2 i QUESTIONS PRESENTED FOR REVIEW The Americans with Disabilities Act was enacted to protect qualified individuals with disabilities from discrimination in areas including, inter alia, employment, public accommodations, and education. 42 U.S.C (a)(3). Title II of the ADA specifically prohibits public entities from discriminating against qualified individuals with a disability. 42 U.S.C The Circuits are split on the important question of whether Title II of the Americans with Disabilities Act permits an employee of a public entity who is a qualified individual with a disability to bring a claim against the public entity for employment discrimination. This Court s review is needed to resolve this important question.

3 ii PARTIES TO THE PROCEEDING The caption of the case in this Court contains the names of all parties to the proceedings in the district court. Petitioner, Judy Elwell, was the Plaintiff in the district court and appellant in the United States Court of Appeals for the Tenth Circuit. Respondent, State of Oklahoma ex rel., Board of Regents of the University of Oklahoma, was the defendant in the district court and appellee in the court below. CORPORATE DISCLOSURE STATEMENT Petitioner is an individual, and as such, no corporate disclosure statement is necessary.

4 iii TABLE OF CONTENTS QUESTIONS PRESENTED FOR REVIEW... i PARTIES TO THE PROCEEDING...ii CORPORATE DISCLOSURE STATEMENT...ii TABLE OF CONTENTS...iii TABLE OF AUTHORITIES... vi DECISIONS BELOW... 1 GROUNDS OF JURISDICTION... 1 PERTINENT CONSTITUTIONAL AND STATUTORY PROVISIONS... 1 STATEMENT OF THE CASE... 2 SUMMARY OF ARGUMENT... 4 PROPOSITION: THIS COURT S REVIEW IS NEEDED TO RESOLVE A SPLIT AMONG THE CIRCUITS ON THE IMPORTANT QUESTION OF WHETHER TITLE II OF THE AMERICANS WITH DISABILITIES ACT PERMITS AN EMPLOYEE OF A PUBLIC ENTITY TO BRING A CLAIM AGAINST THE PUBLIC ENTITY FOR EMPLOYMENT DISCRIMINATION... 5

5 iv Introduction Five Circuits have either explicitly or implicitly found Title II includes a cause of action for employment discrimination Both the Ninth Circuit, and the Tenth Circuit, in the decision below, have found disabled State employees are not protected by Title II from employment discrimination The split among the circuits results in the States disparity of treatment of disabled employees, based solely upon the Circuit in which they live CONCLUSION APPENDIX:...App. APPENDIX TABLE OF CONTENTS... App.i Opinions of the United State Court of Appeals for the Tenth Circuit, Judy Elwell v. State of Oklahoma, ex rel., Board of Regents of the University of Oklahoma, Case No , filed September 11, App.1-26 Memorandum Opinion and Order of the United States District Court for the Western District of Oklahoma, Judy Elwell v. State of Oklahoma, ex rel., Board of Regents of the University of

6 v Oklahoma, Case No. CIV C, filed February 8, App U.S.C App U.S.C App U.S.C App U.S.C App U.S.C App CFR App.53

7 vi TABLE OF AUTHORITIES Cases: Bledsoe v. Palm Beach County Soil and Water Conservation Dist., 133 F.3d 816 (11 th Cir. 1998) , 22 Bledsoe v. Palm Beach County Soil and Water Conservation Dist., 525 U.S. 826 (1998)... 8 Bledsoe v. Palm Beach Soil & Water Conservation Dist., 942 F.Supp (S.D.Fla. 1996)... 13, 14 Brettler v. Purdue Univ., 408 F.Supp.2d 640 (N.D.Ind. 2006) Canfield v. Isaacs, 523 F.Supp.2d 885 (N.D.Ind. 2007)... 19, 20 Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) Consolidated Rail v. Darrone, 465 U.S. 624 (1984) Cormier v. City of Meriden, 2004 WL (D.Conn.) Currie v. Group Ins. Com n, 290 F.3d 1 (1 st Cir. 2002)... 12

8 vii Decker v. Univ. of Houston, 970 F.Supp. 575 (S.D.Tex 1997) Dertz v. City of Chicago, 912 F.Supp. 319 (N.D.Ill. 1995) Doe v. University of Maryland Med. Sys. Corp., 50 F.3d 1261 (4 th Cir. 1995)... 11, 12 Dominguez v. City of Council Bluffs, 974 F.Supp. 732 (S.D.Iowa 1997) Downs v. Mass. Bay Transp. Auth., 13 F.Supp.2d 130 (D.Mass. 1998) Ethridge v. State of Alabama, 847 F.Supp. 903 (M.D.Ala. 1993)... 11, 18 Filush v. Town of Weston, 266 F.Supp.2d 322 (D.Conn. 2003) Frame v. City of Arlington, 657 F.3d 215 (5 th Cir. 2011) Hernandez v. City of Hartford, 959 F.Supp. 125 (D.Conn. 1997) Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522 (11 th Cir. 1997) Holt v. United States, 46 F.3d 1000 (10 th Cir. 1995)... 2 Holmes v. Texas A&M University, 138 F.3d 168 (5 th Cir. 1998)... 12

9 viii Holmes v. Texas A&M University, 145 F.3d 681 (5 th Cir. 1998) Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d 37 (2 nd Cir. 1997)... 9, 11 Jackson v. City of Chicago, 215 F.Supp.2d 975 (N.D. Ill. 2002)... 7, 19 Judy Elwell v. Okla. ex rel. Bd. of Regents of the Univ. of Okla., 693 F.3d 1303 (10 th Cir. 2012)... 1, 9, 13 Judy Elwell v. Okla. ex rel. Bd. of Regents of the Univ. of Okla., 2011 WL (W.D.Okla.)... 1 Lundstedt v. City of Miami, 1995 WL (S.D.Fla. 1995)... 11, 18 McElwee v. County of Orange, --- F.3d ---, 2012 WL McNely v. Ocala Star-Banner Corp., 99 F.3d 1068 (11 th Cir. 1996) McNely v. Ocala Star-Banner Corp., 520 U.S (1997) Motzkin v. Trs. of Bos. Univ., 938 F.Supp. 983 (D.Mass. 1996) PGA Tour, Inc. v. Martin, 532 U.S. 661, 675, 121 S.Ct (2001)... 5

10 ix Rios v. Cate, 2010 WL (S.D.Cal. 2010) Syken v. State of New York, 2003 WL (S.D.N.Y.) Tennessee v. Lane, 541 U.S. 509 (2004)... 4, 6, 13 Transport Workers of America, Local 100, AFL-CIO v. New York City Transit Authority, 342 F.Supp.2d 160 (S.D.N.Y. 2004)... 6, 7, 16, 17, 19 Trickey v. Selig, 2012 WL (E.D.Ark.) Wagner v. Texas A&M University, 939 F.Supp (S.D.Tex. 1996)... 11, 18 Worthington v. City of New Haven, 1999 WL (D.Conn.) Zimmerman v. Oregon Dept. of Justice, 170 F.3d 1169 (9 th Cir. 1999) Federal Statutes 28 U.S.C U.S.C U.S.C U.S.C l.... 9

11 x 29 U.S.C U.S.C U.S.C U.S.C , 15, 16, U.S.C i, 5, 6 42 U.S.C , 6 42 U.S.C U.S.C (Title I)... 1, 4, 6, 12-13, 15-16, 21, U.S.C U.S.C (Title II)...passim 42 U.S.C , 20 Administrative 28 C.F.R , 10, C.F.R. pt.34, App.A CFR pt Federal Rules Fed.R.Civ.P

12 Legislative xi H.R.Rep (II) (1990), reprinted in 1990 U.S.C.C.A.N , 16 H.R.Rep (III) (1990), reprinted in 1990 U.S.C.C.A.N , 17, Cong.Rec. S30-31 (January 7, 1997)... 22

13 1 DECISIONS BELOW The opinion from which Petitioner appeals appears as Judy Elwell v. Okla. ex rel. Bd. of Regents of the Univ. of Okla., 693 F.3d 1303 (10 th Cir. 2012). Appendix ( App. ) The district court opinion appears as Judy Elwell v. Okla. ex rel. Bd. of Regents of the Univ. of Okla., 2011 WL (W.D.Okla.). App GROUNDS OF JURISDICTION On September 11, 2012, the United States Court of Appeals for the Tenth Circuit issued its panel decision and entered judgment affirming the district court s decision. This Court has jurisdiction to review the Tenth Circuit decision on a writ of certiorari pursuant to 28 U.S.C PERTINENT CONSTITUTIONAL AND STATUTORY PROVISIONS The following Constitutional, statutory and regulatory provisions of law, set forth in full at App , are involved in this case: 29 U.S.C U.S.C U.S.C U.S.C U.S.C CFR

14 2 STATEMENT OF THE CASE This appeal arises from an action filed by Petitioner, Judy Elwell. Elwell sought monetary damages against Respondent, State of Oklahoma ex rel. the Board of Regents for the University of Oklahoma ( University ), based on discrimination she suffered because of her disability. App. 2. Elwell brought claims under Title II of the Americans with Disabilities Act and the Oklahoma Anti- Discrimination Act 1. App. 2. The district court had jurisdiction of the ADA claim pursuant to 28 U.S.C. 1331, and of the state law claims pursuant to 28 U.S.C On February 8, 2011, pursuant to Fed.R.Civ.Proc. 12(b)(1), the United States District Court for the Western District of Oklahoma dismissed the Complaint. The court found as a matter of law Elwell could not maintain an action under Title II of the ADA and, therefore, the court lacked subject matter jurisdiction. App , 35. The University s motion to dismiss for lack of subject matter jurisdiction was a facial attack of the allegations contained in the Complaint. App As such, the Court must accept as true the factual allegations contained in the complaint and thus this Petition. Holt v. United States, 46 F.3d 1000, 1002 (10 th Cir. 1995) (noting that when a facial attack on plaintiff s allegations as to subject matter jurisdiction is raised, the court must accept the allegations in the complaint as true). The relevant 1 Issues relating to Elwell s claims under the Oklahoma Anti- Discrimination Act are not before this Court.

15 3 factual allegations are as follows 2 : Elwell was employed by the University in the College of Continuing Education, Center for Public Management as a programs specialist. App. 28. Elwell, who worked typical office hours, reviewed, drafted, researched and edited various documents, in addition to other job duties. App. 2, 28. The University did not dispute Elwell is disabled within the meaning of the ADA, suffering from a cervical spine trauma. App. 2, 28. Elwell s disability worsened over time and impacted her ability to perform certain functions of her job. App. 2, 28. Elwell s supervisors were aware of her disability as a result of Elwell providing the University with at least four different prescriptions from physicians for accommodations she needed to perform her job. App. 2, 28. The University refused to fully implement most of the recommendations and began to systematically discriminate against Elwell, ultimately resulting in the termination of her employment. App. 2, 28. Elwell sued, alleging the University discriminated against her on the basis of her disability. She alleged claims under Title II of the Americans with Disabilities Act and the Oklahoma Anti-Discrimination Act. App. 2. The district court determined Title II did not support a cause of action for employment discrimination. App , 35. The Tenth Circuit upheld the ruling of the district court. App No evidentiary hearing occurred and the district court made no findings of fact. App

16 4 SUMMARY OF THE ARGUMENT In Tennessee v. Lane, 541 U.S. 509, (2004), this Court held Congress did not validly abrogate State sovereign immunity under Title I of the ADA. Thus, public employees are foreclosed from any right of action against a State agency for employment discrimination under Title I. However, Title II of the ADA specifically prohibits public entities from discriminating against disabled persons. Since Lane, the federal judiciary has struggled with the scope of Title II and whether Title II affords public employees a cause of action for disability-based employment discrimination. The Eleventh Circuit, and recently the Second Circuit, have explicitly found Title II includes a cause of action for disability-based employment discrimination. Two Circuits the Fourth and Fifth have implicitly found a cause of action exists. In addition, the legislative history and implementing regulations for Title II suggest Congress intended to include within Title II a cause of action for disabilitybased employment discrimination. However, the Ninth Circuit, as well as the court below, have found the opposite no such cause of action exists. The conflicting authorities have resulted in a split among the Circuits. The inconsistent interpretations of Title II have resulted in an inequitable application of the provision as it relates to public employees suffering

17 5 from disability-based employment discrimination. Because of the differing opinions concerning the applicability of Title II, the right of disabled public employees to combat cases of disability-based employment discrimination depends upon where the discrimination occurs. A decision from this Court is needed to ensure public employees in all Circuits have the same rights under Title II. PROPOSITION THIS COURT S REVIEW IS NEEDED TO RESOLVE A SPLIT AMONG THE CIRCUITS ON THE IMPORTANT QUESTION OF WHETHER TITLE II OF THE AMERICANS WITH DISABILITIES ACT PERMITS AN EMPLOYEE OF A PUBLIC ENTITY TO BRING A CLAIM AGAINST THE PUBLIC ENTITY FOR EMPLOYMENT DISCRIMINATION. Introduction The Americans with Disabilities Act is a broad mandate of comprehensive change and sweeping purpose. PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001). The ADA embodies a clear and comprehensive national mandate for the elimination of discrimination against individuals with disability. 42 U.S.C (b)(1). Congress enacted the ADA to protect individuals with a disability from discrimination in such critical areas as employment, public accommodations and access to public services. 42 U.S.C (a)(3). In passing the ADA, Congress acknowledged

18 6 that disabled individuals often had no legal recourse to redress such discrimination. 42 U.S.C (a)(4) and (5). To that end, Congress hoped to increase employment opportunities for disabled individuals by preventing employment discrimination. 42 U.S.C (a)(3) and (8). Title I of the ADA generally bars employers from discriminating against a qualified individual with a disability. 42 U.S.C However, this Court has held that Congress did not abrogate state sovereign immunity with regard to Title I. Thus, state employees do not have a right of action under that provision. 42 U.S.C ; Lane, 541 at On the other hand, Title II of the ADA specifically addresses disability discrimination by public entities. It mandates the following: 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 (emphasis added). See generally Transport Workers Union of America, Local 100 AFL-

19 7 CIO v. New York City Transit Authority, 342 F.Supp.2d 160 (S.D.N.Y. 2004); Bledsoe v. Palm Beach County Soil and Water Conservation District, 133 F.3d 816 (11 th Cir. 1998); Jackson v. City of Chicago, 215 F.Supp.2d 975 (N.D. Ill. 2002). The issue to be presented to the Court is quite simple: Does Title II of the ADA allow a public employee to pursue an employment discrimination claim against the individual s employer? The circuits are split on the answer to this important question. The Eleventh and Second Circuits have explicitly found Title II includes a cause of action for disability-based employment discrimination and the Fourth and Fifth Circuits have implicitly found a cause of action to exist. However, the Ninth Circuit, and the Tenth Circuit in this case, have found no cause of action exists. The differing opinions proffered by the courts have prevented the development of a consistent interpretation and application of Title II in employment discrimination cases, which may only be resolved by this Court. 1. Five Circuits have either explicitly or implicitly found Title II includes a cause of action for employment discrimination. In 1998, the Eleventh Circuit was the first Circuit to specifically address whether Title II of the ADA provides a cause of action against public entities, for employment discrimination. The court determined Title II allows a public employee to maintain an employment discrimination claim.

20 8 Bledsoe v. Palm Beach County Soil and Water Conservation Dist., 133 F.3d 816 (11 th Cir. 1998), cert denied, 525 U.S. 826 (1998). In Bledsoe, the public employer refused the plaintiff/employee s request for accommodation after suffering an injury. 133 F.3d at 818. Instead, the public employer offered the plaintiff a new position, which the plaintiff declined. Id. The plaintiff brought suit alleging, among other claims, employment discrimination under Title II. The district court ruled Title II of the ADA did not encompass a claim for employment discrimination against the public entity. The Eleventh Circuit reversed, after analyzing a number of sources: (1) statutory language of Title II; (2) implementing regulations; (3) Eleventh Circuit precedent; and (4) other courts implicit handling of the issue. The Eleventh Circuit concluded Title II permits a cause of action for employment discrimination by a public employee against a public entity. Beginning with a statutory analysis, the Eleventh Circuit noted although the language of Title II is brief, the extensive 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. Bledsoe, 133 F.3d at 821. Citing the Report of the United States House of Representatives Judiciary Committee, the court determined Title II was intended to work in the same manner as Section 504 of the Rehabilitation Act, 29 U.S.C l, which prohibits

21 9 discrimination on the basis of disability, by entities receiving federal funding. Bledsoe, 133 F.3d at 821 (citing 1990 U.S.C.C.A.N. at ). Unlike the Tenth Circuit s analysis in the decision below, the Bledsoe court did not linger on the first clause of Title II - services, programs, or activities - when analyzing whether Title II prohibits employment discrimination. Compare Elwell v. Okla. ex rel. Bd. of Regents of the Univ. of Okla., 693 F.3d 1303, (10 th Cir. 2012) with Bledsoe, 133 F.3d at Despite the district court s reliance on the provision, the Eleventh Circuit turned its attention to the second clause of Title II, which prohibits a qualified individual with a disability from being subjected to discrimination by any such entity. Id. The Bledsoe court did not explicitly address whether the first clause of Title II included employment discrimination, finding instead the second clause was a catch-all phrase which prohibited all discrimination by a public entity, regardless of the context. Bledsoe, 133 F.3d at 822, (citing Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d 37, (2 nd Cir. 1997)). As such, the Eleventh Circuit found Title II explicitly includes a cause of action for employment discrimination. In addition to the statute s plain language and legislative history, the Eleventh Circuit found support in Title II s implementing regulations. Finding Title II did not list all of the forms of discrimination that the title is intended to prohibit, the Circuit noted Congress tasked the Attorney General with creating implementing regulations.

22 10 Bledsoe, 133 F.3d at 822, (citing H.R.Rep (III), at 52 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 475). Specifically, the Eleventh Circuit relied on 28 C.F.R That Rule prohibits a public entity from discriminating against a qualified individual with a disability in employment under any service, program, or activity conducted by a public entity. 28 C.F.R (a). The Circuit acknowledged that [C]ongress is deemed to know the executive and judicial gloss given to certain language and thus adopts the existing interpretation unless it affirmatively acts to change the meaning. 133 F.3d at (citing Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984)). The court then found it could not ignore the implementing regulations and their clear inclusion of employment discrimination. Bledsoe, 133 F.3d at The Bledsoe court then turned to decisions of other courts for further assistance. The court determined dicta in prior Eleventh Circuit decisions also suggested Title II of the ADA contained a provision for employment discrimination. 133 F.3d at (citing McNely v. Ocala Star-Banner Corp., 99 F.3d 1068 (11 th Cir. 1996), cert. denied, 520 U.S (1997)). See also Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522 (11 th Cir. 1997) (finding Title II of the ADA was the new replacement for the Rehabilitation Act). In expanding its analysis, the Eleventh Circuit

23 11 found no other circuit court case exactly on point but found additional support from district court cases. 133 F.3d at , (citing Wagner v. Texas A&M University, 939 F.Supp (S.D.Tex. 1996) (noting a professor could bring a Title II claim against the university when he was not restored to his same position following a disability leave)); Dertz v. City of Chicago, 912 F.Supp. 319 (N.D.Ill. 1995) (plaintiff employees allowed to bring discrimination suit under Title II); Lundstedt v. City of Miami, 1995 WL (S.D.Fla. 1995); Ethridge v. State of Alabama, 847 F.Supp. 903 (M.D.Ala. 1993). The Eleventh Circuit found cases holding to the contrary were not persuasive. 133 F.3d at 825. Three additional Circuits have implicitly found a cause of action exists for disability-based employment discrimination under Title II. The Second Circuit, most recently in McElwee v. County of Orange, --- F.3d ---, 2012 WL , appears to have reiterated its earlier decision in Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d 37 (2 nd Cir. 1997), superseded by statute, that implicitly recognized a Title II claim for employment discrimination. Innovative Health, 117 F.3d at 47. The Fourth and Fifth Circuits have assumed, but not explicitly decided that Title II includes employment discrimination claims. In Doe v. University of Maryland Med. Sys. Corp., 50 F.3d 1261 (4 th Cir. 1995), decided prior to Bledsoe, the Fourth Circuit allowed an individual to proceed against a public entity under both the Rehabilitation Act and Title II, finding both laws prohibit

24 12 discrimination against an otherwise qualified individual with a disability. Doe, 50 F.3d at n. 8. Similarly, in Holmes v. Texas A&M University, 138 F.3d 168 (5 th Cir. 1998), opinion withdrawn and superseded on other grounds, 145 F.3d 681 (5 th Cir. 1998), the court noted that filing a complaint with the EEOC was not a prerequisite to filing a claim for disability-based employment discrimination under Title II. Furthermore, while the First Circuit has not explicitly ruled on the issue, it has found a claim for employment discrimination under Title II is not prohibited by the phrase public services, programs, or activities. Currie v. Group Ins. Com n, 290 F.3d 1 (1 st Cir. 2002) 2. The Ninth Circuit, and the Tenth Circuit, in the decision below, have found disabled State employees are not protected by Title II from employment discrimination. Nearly one year after Bledsoe, the Ninth Circuit addressed the same issue and reached the opposite decision. In Zimmerman v. Oregon Dept. of Justice, 170 F.3d 1169 (9 th Cir. 1999), the Ninth Circuit found no cause of action existed under Title II for employment discrimination claims. The Ninth Circuit began its analysis by examining the scope of Title I of the ADA. The Circuit noted because Title I included governmental employers, but exempted the federal government, Congress, in Title I, was referring only to state and local governmental employers. Zimmerman, 170 F.3d at The Ninth Circuit reasoned that

25 13 finding a cause of action for employment discrimination under Title II would create a duplicative cause of action and cause confusion as to the correct way to proceed. Id. In Tennessee v. Lane, 541 U.S. 509, (2004), this Court ruled Congress did not effectively abrogate State sovereign immunity with regard to Title I of the ADA, thus disabled state employees do not have a right of action under that law. As such, this part of Zimmerman s rationale, handed down six years before Lane, is no longer applicable. Title I, post-lane, provides no recourse for a disabled public employee seeking monetary damages for employment discrimination. Hence, the Ninth s Circuit s initial basis for finding no cause of action for employment discrimination under Title II is no longer viable. In spite of the Bledsoe court s analysis, the Ninth Circuit also found Congress unambiguously expressed its intent for Title II not to apply to employment. Zimmerman, 170 F.3d at Because the court found the language unambiguous, the Ninth Circuit afforded no deference to the implementing regulations. Id. Citing Decker v. Univ. of Houston, 970 F.Supp. 575, 578 (S.D.Tex 1997), the Ninth Circuit found the first clause of Title II which prohibits denial of benefits of the services, programs, or activities of a public entity refers to the outputs of a public agency and not to inputs, including employment. Id. See also App. 4-8; Elwell, 693 F.3d at However, the Decker district court decision Zimmerman relied on to support its input/output

26 14 analysis, relied in turn on Bledsoe v. Palm Beach Soil & Water Conservation Dist., 942 F.Supp (S.D.Fla. 1996), which was overturned by the Eleventh Circuit in Bledsoe. Further, Zimmerman baldly stated, without citation to authority, that employment by a public entity is not commonly thought of as a service, program, or activity of a public entity. Zimmerman, 170 F.3d at This reasoning was also relied on by the Tenth Circuit in the case at bar. App. 4. Directly contrary to Bledsoe, the Zimmerman court found the second clause of Title II ( or be subjected to discrimination by any such entity ), was not a catch-all, but was taken out of context in Bledsoe. The Ninth Circuit found that the second clause relates back to the services, programs, or activities language and was not an independent clause. 170 F.3d at Zimmerman found support for this reasoning in prior Ninth Circuit decisions, and noted that Bledsoe conflicts with these findings. Zimmerman, 170 F.3d at To support this conclusion, the Ninth Circuit engaged in an analysis similar to the Tenth Circuit s analysis in this matter, which relies on the meaning of qualified individual. Zimmerman, 170 F.3d at ; App As defined by 42 U.S.C (2), qualified individual refers to an individual with a disability, who... meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity. The Ninth Circuit, and eventually the Tenth Circuit, found, without any

27 15 supporting authority, that an employee is not a recipient of services, programs or activities of a public entity. Zimmerman, 170 F.3d at ; App Unlike Bledsoe, both the Zimmerman court and the Tenth Circuit overlooked the definition of services, programs or activities found in the Rehabilitation Act, which must be read in pari materia with Title II. Frame v. City of Arlington, 657 F.3d 215, (5 th Cir. 2011). The Rehabilitation Act defines services, programs or activities as all of the operations... of a college university or other post secondary institution, or a public system of higher education. 29 U.S.C. 794 (b)(2). The phrase all of the operations clearly encompasses employment of individuals. Instead, the Tenth Circuit in the decision below relies for definitional authority on the individual definitions of services, programs and activities found in Merriam- Webster and the Oxford English Dictionary. App Neither the Ninth Circuit nor the Tenth Circuit addresses the implications of the definition found in the Rehabilitation Act in connection with the meaning of the phrase in Title II. The Zimmerman decision has been questioned in recent years. The United States District Court for the Southern District of California determined an inmate employed by the jail could maintain a claim against the public entity pursuant to Title II of the ADA. Rios v. Cate, 2010 WL (S.D.Cal. 2010). The court determined inmate claims, as well as the employment of inmates, were actionable under Title

28 16 II, not Title I. The Rios court distinguished Zimmerman on the facts of the case. As noted above, the Tenth Circuit in this case analyzed the difference between Title I and Title II in a manner similar to Zimmerman, and directly contrary to Bledsoe. Noting Title I was labeled Employment and Title II was labeled Public Services, the Tenth Circuit found the proper tool for employment discrimination was Title I because, according to the Tenth Circuit, Title I discusses employment discrimination, but Congress fail[ed] to discuss it in Title II. App. 12. The Tenth Circuit s view of the discussion in Title II of employment discrimination, however, ignores the House Judiciary Committee Report that notes [t]he Committee intends the forms of discrimination prohibited by [Title II] be identical to those set out in the applicable provisions of titles I and III of this legislation. H.R.Rep. No (II), at 84 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 367. The Committee states: The purpose of title II is to continue to break down barriers to the integrated participation of people with disabilities in all aspects of community life. The Committee intends that title II work in the same manner as Section 504 [of the Rehabilitation Act] U.S.C.C.A.N. at (emphasis added).

29 17 Section 504 of the Rehabilitation Act clearly authorizes employment discrimination claims. 29 U.S.C. 794; Transport Workers, 342 F.Supp.2d at 175; see generally 29 U.S.C. 701(8), 794. In considering Section 504, the Supreme Court in Consolidated Rail v. Darrone, 465 U.S. 624 (1984), noted: Among [the] purposes [of the Rehabilitation Act] are to promote and expand employment opportunities in public and private sectors for handicapped individuals and to place such individuals in employment. 29 U.S.C. 701(8). rather, that section [Section 504] prohibits discrimination against the handicapped under any program or activity receiving Federal financial assistance. And it is unquestionable that the section was intended to reach employment discrimination. Id. at (emphasis added). Title II s legislative history also includes a detailed discussion about public entities making reasonable accommodations for employees. The notes specifically state, in the area of employment, title II incorporates the duty set forth in the regulations for Sections 501, 503 and 504 of the Rehabilitation Act to provide a reasonable accommodation that does not constitute an undue hardship. H.R.Rep. No (III), at (1990), reprinted in 1990

30 18 U.S.C.C.A.N. 445; see generally 29 U.S.C. 791, 793, 794. The Tenth Circuit s Opinion contains no mention of the provision s legislative history. If, as the trial court found, Title II were limited to services public entities provide to third parties, Congress would have had no need to include discussion of the implications of a reasonable accommodation analysis in a public entity setting. While the intent of Congress is clear in the language of the statute, its intent is further crystallized by the legislative history, which plainly demonstrates Congress also contemplated the law includes employment discrimination claims. The preamble to the Department of Justice Title II regulation states that Title II applies to anything a public entity does. 28 C.F.R. pt.34, App.A at One of the major activities a public entity undertakes is employment of individuals. This Court s review is needed to reconcile these inconsistent opinions, ensure consistent application of Title II to employment discrimination claims, and provide guidance to the lower courts. In addition to the confusion created among the circuit courts, district courts are also divided on the issue thereby resulting in differing application of the same provision. See Ethridge v. State of Alabama, 847 F.Supp. 903 (M.D.Ala 1993) (Title II applies to employment discrimination by public entities); Lundstedt v. City of Miami, 1995 WL (S.D.Fla. 1995) (Title II clearly encompasses employment discrimination by public entities);

31 19 Wagner v. Texas A&M University, 939 F.Supp (S.D.Tex. 1996) (noting Title II encompasses employment discrimination actions); Dominguez v. City of Council Bluffs, 974 F.Supp. 732 (S.D.Iowa 1997) (finding Title II includes employment discrimination claims); Hernandez v. City of Hartford, 959 F.Supp. 125 (D.Conn. 1997) (permitting employment claim to proceed under Title II); Downs v. Mass. Bay Transp. Auth., 13 F.Supp.2d 130 (D.Mass. 1998) (Title II encompasses employment discrimination claims); Worthington v. City of New Haven, 1999 WL (D.Conn.) (determining Title II applied to employment); Jackson v. City of Chicago, 215 F.Supp.2d 975 (N.D.Ill. 2002) (Title II of the ADA is applicable to claim for disability-based employment discrimination); Transport Workers of America, Local 100, AFL-CIO v. New York City Transit Authority, 342 F.Supp.2d 160 (S.D.N.Y. 2004) (Title II s second phrase, implementing regulations and legislative history supports a finding that the provision allows for employment discrimination claims); but see Motzkin v. Trs. of Bos. Univ., 938 F.Supp. 983 (D.Mass. 1996) (finding no employment discrimination claim under Title II); Filush v. Town of Weston, 266 F.Supp.2d 322 (D.Conn. 2003) (finding Title II unambiguously did not apply to employment discrimination or retaliation claims ); Syken v. State of New York, 2003 WL (S.D.N.Y.) (finding no cause of action under Title II for employment discrimination); Cormier v. City of Meriden, 2004 WL (D.Conn.) (finding Title II did not apply to employment discrimination despite Connecticut district court rulings to the contrary); Brettler v. Purdue Univ., 408 F.Supp.2d 640 (N.D.Ind. 2006)

32 20 (finding Title II of ADA did not permit plaintiff to bring a claim for employment discrimination); Canfield v. Isaacs, 523 F.Supp.2d 885 (N.D.Ind. 2007) (finding while Title II did not require a plaintiff to exhaust his/her administrative remedies, Title II did not apply to employment); Trickey v. Selig, 2012 WL (E.D.Ark.) (public employee not permitted to proceed on employment discrimination claim). Without guidance, the schism between the circuit courts and confusion amongst the district courts will continue to deepen. 3. The split among the circuits results in the States disparity of treatment of disabled employees, based solely upon the Circuit in which they live. Because of the split in circuits, disabled public employees in some states are simply unprotected from discrimination under federal law, while in other states they are protected. In addition to conflicting circuit court opinions, Title II s implementing regulations are either applicable or not, depending upon the Circuit in which disabled state employees reside. The ADA specifically requires the Department of Justice to create implementing regulations for Title II of the ADA. 42 U.S.C The House Judiciary Committee Report states: Unlike other titles in this Act, title II does not list all forms of discrimination

33 21 that the title is intended to prohibit. Thus, the purpose of this section [42 U.S.C ] is to direct the Attorney General to issue regulations setting forth the forms of discrimination prohibited. H.R.Rep (III) at 52 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 475. The regulations set forth what type of discrimination is prohibited. Title 28 C.F.R provides: (1) 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. (b)(1) For purposes of this part, the requirements of title II of the Act apply to employment in any service, program, or activity conducted by a public entity if that public entity is also subject to the jurisdiction of title I [i.e. employs fifteen or more employees]. (b)(2) For the purposes of this part, the requirements of section 504 of the Rehabilitation Act of 1973, as established by the regulations of the Department of Justice in 28 CFR part 41, as those requirements pertain to

34 22 employment, apply to employment in any service, program, or activity conducted by a public entity if that public entity is not also subject to the jurisdiction of title I. (Emphasis added.) The regulation, which has not been modified, specifically applies to employment in any service, program or activity of a public entity. In 1997, the United States Senate unanimously gave consent to printing and adopting this interpretation of Title II. Bledsoe, 133 F.3d at 822 (citing 143 Cong.Rec. S30-31 (January 7, 1997)). The implementing regulations clearly state Title II encompasses employment actions against public entities. The Department of Justice s construction of the statute, and Congress response, are clear evidence Title II bars employment discrimination. Conclusion The Ninth and Tenth Circuits interpretations of Title II deprive a very broad class of people state public employees living in these two circuits of federal protection from disability discrimination. A disabled, public employee in Oklahoma is left without any recourse under Title II to combat employment discrimination, but a public employee in Florida has recourse under the same provision and implementing regulations. Such an inconsistency in application belies the purpose of the ADA to

35 23 uniformly combat employment discrimination on the basis of a disability. This appeal thus brings before the Court a substantial federal question. Its resolution requires plenary consideration, with briefs on the merits and oral argument. This Court should grant the writ of certiorari to ensure uniformity and consistency among the circuits. Respectfully submitted, /s/ Andrew W. Lester Andrew W. Lester Counsel of Record Courtney D. Powell LESTER, LOVING & DAVIES, P.C South Kelly Avenue Edmond, Oklahoma (405) alester@lldlaw.com