No. 96-5375 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT MARK BLEDSOE, Plaintiff-Appellant v. PALM BEACH SOIL AND WATER CONSERVATION DISTRICT, Defendant-Appellee ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA BRIEF FOR THE UNITED STATES AS AMICUS CURIAE WILLIAM R. YEOMANS Acting Assistant Attorney General MARK L. GROSS MARIE K. McELDERRY Attorneys Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 514-3068 01-04867 TABLE OF CONTENTS PAGE CERTIFICATE OF INTERESTED PERSONS CERTIFICATE OF TYPE SIZE AND STYLE INTEREST OF THE UNITED STATES ......................................... 1 STATEMENT ..............................................................2 1. Statutory Scheme ...........................................2 2. Facts ..................................................... 4 3. The Decision Of The District Court ........................ 5 INTRODUCTION AND SUMMARY OF ARGUMENT .................................. 7 ARGUMENT: I. AN EMPLOYEE HAS NOT KNOWINGLY WAIVED HIS RIGHTS UNDER THE ADA WHERE THE WAIVER LANGUAGE IS AMBIGUOUS ..................................... 9 II. TITLE II OF THE ADA REACHES EMPLOYMENT PRACTICES OF PUBLIC ENTITIES ............................. 11 A. Employment Coverage Is Clear From The Language And Structure OF The Title II ................ 13 1. Section 202 ........................................ 13 2. Section 204 ........................................ 16 B. The Legislative History Of Title II Demonstrates That Congress Intended To Prohibit Employment Discrimination ............................. 17 C. The District Court's Analysis Is Flawed .................................... 20 - i - 01-04868 TABLE OF CONTENTS (continued): PAGE CONCLUSION........................................................... 24 TABLE OF AUTHORITIES CASES: PAGE * Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974).................. 9 Beadle v. City of Tampa, 42 F.3d 633 (11th Cir.), cert. denied, 115 S. Ct. 2600 (1995) ....................... 7, 10, 11 Bell v. Retirement Bd. of Firemen's Annuity and Benefit Fund of Chicago, No. 92-C-5197, 1993 WL 398612 (N.D. Ill. (Oct. 6, 1993)........................... 12 Bledsoe v. Palm Beach Soil & Water Conservation Dist., 942 F. Supp. 1439 (S.D. Fla. 1996)............................................... passim * Bruton v. Southeastern Pa. Transp. Auth., No. 94-CV-3111, 1994 WL 470277 (E.D. Pa. (Aug. 19, 1994)....................... 12, 21 * Consolidated Rail Corp. v. Darrone, 465 U.S. 624 (1984).......................................................... 8, 14 Davoll v. Webb, 943 F. Supp. 1289 (D. Colo. 1996)..................... 12 Dertz v. City of Chicago, 912 F. Supp. 319 (N.D. Ill. 1995)................................................... 13 Doe v. University of Md. Medical Sys. Corp., 50 F.3d 1261 (4th Cir. 1995)....................................... 12 Eisfelder v. Michigan Dept. of Natural Resources, 847 F. Supp. 78 (W.D. Mich. 1993).............................. 12, 14 * Ethridge v. Alabama, 847 F. Supp. 903 (M.D. Ala. 1993)............................................... 12, 17 - ii - 01-04869 CASES (continued): PAGE Ethridge v. Alabama, 860 F. Supp. 808 (M.D. Ala. 1994)................. 3 Finley v. Giacobbe, 827 F. Supp. 215 (S.D.N.Y. 1993).................. 12 F.M. v. Palm Beach County, F.M. v. County Comm'rs, 84 F.3d 438 (11th Cir. 1996)(TABLE), aff'd, F.M. v. Palm Beach County, 912 F. Supp. 514 (S.D. Fla. 1995)................................................ 5, 11 Freeman v. Motor Convoy, Inc., 700 F.2d 1339 (1983)................... 10 Graboski v. Guiliani, 937 F. Supp. 258 (S.D.N.Y. 1996).................................................... 12 Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522 (11th Cir. 1997)................................................... 12 Innovative Health Sys., Inc. v. City of White Plains, No. 96-7797, 1997 WL 349853 (2d Cir. June 26, 1997)................ 16 Iskander v. Rodeo Sanitary Dist., No. 94-C-0479, 1995 WL 56578 (N.D. Cal. 1995)............................................. 13 * North Haven Bd. of Educ. v. Bell, 456 U.S. 512 (1982)...................................................... 8, 13, 14 * Petersen v. University of Wis. Bd. of Regents, 818 F. Supp. 1276 (W.D. Wis. 1993)........................ 3-4, 12, 21 * Puentes v. United Parcel Serv., Inc., 86 F.3d 196 (11th Cir. 1996)................................................... 10 Rivera-Flores v. Bristol-Myers Squibb Caribbean, 112 F.3d 9 (1st Cir. April 25, 1997)............................... 10 Shannon v. United States, 512 U.S. 573 (1994)......................... 19 - iii - 01-04870 CASES (continued): PAGE Silk v. City of Chicago, No. 95-C-0143, 1996 WL 312074 (N.D. Ill. (June 7, 1996).......................................... 12 Wagner v. Texas A & M Univ., 939 F. Supp. 1297 (S.D. Tex. 1996)................................................ 3, 12 Zuber v. Allen, 396 U.S. 168 (1969)................................... 19 STATUTES: Americans With Disabilities Act, Title I.......................... passim Americans With Disabilities Act, Title II......................... passim Section 202.................................................... passim Section 204.................................................... 18, 20 Section 204(b)..................................................... 21 42 U.S.C. 12101(b)(1).................................................. 2 42 U.S.C. 12131 et seq................................................. 1 42 U.S.C. 12131(1)..................................................... 1 42 U.S.C. 12132.................................................... 3, 16 42 U.S.C. 12134(a)..................................................... 1 42 U.S.C. 12134(b).................................................... 16 Civil Rights Act of 1964, Title VI, 42 U.S.C. 2000d..................................................... 3 42 U.S.C. 2000d-1................................................... 3 42 U.S.C. 2000d-2................................................... 3 42 U.S.C. 2000d-3............................................... 3, 15 42 U.S.C. 2000d-4................................................... 3 - iv - 01-04871 Statutes (continued): PAGE Civil Rights Act of 1964, Title VII .............................. passim 42 U.S.C. 2000e-4 - 2000e-6 ........................................ 2 42 U.S.C. 2000e-8 - 2000e-9 ........................................ 2 Education Amendments of 1972, Title IX, ........................ 8, 9, 13 Section 901(a) ...................................................... 14 20 U.S.C. 1681 ...................................................... 13 Insanity Defense Reform Act of 1984, 98 Stat. 2057 ................... 19 Rehabilitation Act of 1973, Sections 501, 503 ................................................... 18 Section 504 ................................................. 3, 5, 8, 9 Section 505 .......................................................... 3 Section 505(a)(2) .................................................... 3 29 U.S.C. 794 ........................................................ 14 29 U.S.C. 794a ..................................................... 3, 8 REGULATIONS: 28 C.F.R. Pt. 35, App. A, Subpt. C ................................... 20 28 C.F.R. 35.190 ..................................................... 23 28 C.F.R. 41.52-41.55 ................................................ 16 56 Fed. Reg. 8545 (Feb. 28, 1991) .................................... 17 56 Fed. Reg. 8546 (Feb. 28, 1991) .................................... 20 LEGISLATIVE HISTORY: PAGE H.R. Rep. No. 101-485, 101st Cong., 2d Sess. (1990) .............. passim S. Rep. No. 116, 101st Cong., 1st Sess. (1989) ....................... 22 - v - 01-04872 * Authorities chiefly relied upon are marked with asterisks. - vi - 01-04873 QUESTIONS PRESENTED 1. Whether the district court's findings support its grant of summary judgment to the Palm Beach Soil and Water Conservation District, based upon the release in the 1994 worker's compensation settlement agreement. 2. Whether employment discrimination is prohibited by Title II of the Americans With Disabilities Act (ADA), 42 U.S.C. 12131-12134. 01-04874 CERTIFICATE OF TYPE SIZE AND STYLE The United States certifies that the brief complies with 11th Cir. R. 32-4. The brief, though not proportionally spaced, is in 12 point type, is 10 pitch, courier style, and double-spaced. 01-04875 Mark Bledsoe v. Palm Beach County Soil No. 96-5375 C-1 of 2 CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT Pursuant to Eleventh Circuit Rule 28-2(b), amicus curiae, the United States of America, certifies that the following persons have an interest in the outcome of this case: Bledsoe, Mark, Appellant Bleau, Denise, Attorney for Appellee, Board of County Commissioners, Palm Beach County Board of County Commissioners, Palm Beach County, Appellee County Attorney's Office, Palm Beach County, Attorneys for Appellee, Board of County Commissioners, Palm Beach County Garcia, Elkins & Carbonell, P.A., Attorneys for Appellant Garcia, Isidro M., Attorney for Appellant Gross, Mark L., Deputy Chief, Appellate Section, Civil Rights Division, U.S. Department of Justice Johnson, Anselmo, Murdoch, Burke & George, Attorneys for Appellee, Palm Beach County Soil and Water Conservation District McDuff, Richard, Attorney for Appellee, Palm Beach County Soil and Water Conservation District McElderry, Marie K., Attorney, Appellate Section, Civil Rights Division, U.S. Department of Justice Palm Beach County Soil and Water Conservation District, Appellee 01-04876 Mark Bledsoe v. Palm Beach County Soil No. 96-5375 C-2 of 2 Ryskamp, Kenneth L., Judge, U.S. District Court, Southern District of Florida Yeomans, William R., Acting Assistant Attorney General, Civil Rights Division, U.S. Department of Justice 01-04877 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 96-5375 MARK BLEDSOE, Plaintiff-Appellant v. PALM BEACH SOIL AND WATER CONSERVATION DISTRICT, Defendant-Appellee ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA BRIEF FOR THE UNITED STATES AS AMICUS CURIAE INTEREST OF THE UNITED STATES In accordance with Congress's mandate, 42 U.S.C. 12134(a), the Attorney General has promulgated regulations to implement Title II of the Americans With Disabilities Act, 42 U.S.C. 12131 et seq. Those regulations prohibit public entities from discriminating in employment against qualified persons by reason of disability.1 The decision of the district court that Title II does not create a cause of action for employment discrimination conflicts with those regulations, and denies ________________________________ 1 Public entities, as defined by Title II, include state and local governments as well as certain instrumentalities of states and local governments. 42 U.S.C. 12131(1). 01-04878 -2- significant protections to employees of small public entities, a group that Congress clearly intended to protect. STATEMENT 1. Statutory Scheme. The ADA was intended to "provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. 12101(b)(1). The Act is divided into five titles, two of which cover employment activities and are therefore relevant to this case.2 Title I prohibits discrimination on the basis of disability by employers (including governments, governmental agencies, and political subdivisions) who are engaged in an industry affecting commerce and who have 15 or more employees for each working day in each of 20 or more calendar weeks.3 Enforcement of Title I parallels that of Title VII of the Civil Rights Act of 1964. 42 U.S.C. 2000e-4 - 2000e-6, 2000e-8 - 2000e-9. _______________________ 2 The statute also prohibits discrimination in public accommodations and services provided by private entities (Title III) and telecommunications (Title IV). Title V covers a diverse group of miscellaneous matters. 3 Title I also applies to employment agencies, labor organizations, and joint labor-management committees. Like Title VII of the Civil Rights Act of 1964, the term "employer" excludes the United States, corporations wholly owned by the government of the United States, Indian tribes, and tax-exempt bona fide private membership clubs (other than labor organizations). 01-04879 -3- Title II basically extends the protections provided by Section 504 of the Rehabilitation Act of 1973 to all programs, activities, and services provided or made available by state or local governments or instrumentalities or agencies thereof, regardless of whether such entities receive Federal financial assistance.4 H.R. Rep. No. 101-485(II), 101st Cong., 2d Sess. 84 (1990); Ethridge v. Alabama, 860 F. Supp. 808, 812 n.6 (M.D. Ala. 1994); Wagner v. Texas A & M Univ., 939 F. Supp. 1297, 1309 (S.D. Tex. 1996). Title II states: "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. Persons alleging discrimination under this section of the Act have the remedies, procedures, and rights set forth in Section 505 of the Rehabilitation Act, 29 U.S.C. 794a.5 See Petersen v. University ____________________ 4 Section 504 provides in relevant part: No otherwise qualified individual with a disability * * * shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance * * *. 5 Section 505(a) (2) sets out procedures for enforcement of Section 504 of the Rehabilitation Act of 1973. Section 505(a)(2), in turn, incorporates by reference the remedies, procedures, and rights set forth in Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d - 2000d-4). 01-04880 -4- of Wis. Bd. of Regents, 818 F. Supp. 1276, 1278 (W.D. Wis. 1993). 2. Facts. Beginning in 1988, plaintiff Mark Bledsoe was employed by the Palm Beach Soil and Water Conservation District ("Conservation District") as a Resource Technician. Bledsoe v. Palm Beach Soil & Water Conservation Dist., 942 F. Supp. 1439, 1440 (S.D. Fla. 1996). In 1990, he sustained a knee injury on the job, and his physician recommended that he refrain from excessive walking and walking on uneven terrain, both of which were required in his job. Ibid. Bledsoe requested an accommodation from the District, was offered another position, which he rejected, and in 1992, was fired. Ibid. Bledsoe brought a workers' compensation claim, which was settled in 1994 for $59,000. Ibid. The settlement was embodied in a document entitled "Order For Release From Liability For Payments of Workers' Compensation Benefits * * *." Id. at 1440- 1441. On June 24, 1994, Bledsoe filed a complaint under Title I of the ADA against both the Conservation District and Palm Beach County. On July 28, 1995, the district court granted the Conservation District's motion for summary judgment because it does not have a sufficient number of employees to be covered by Title I (R. 124: Omnibus Order at 14-15, 25). 6 The court also granted the County's motion for summary judgment based on the fact that the County was not Bledsoe's employer (id. at 13; R. _______________________ 6 "R._" refers to the documents filed in the district court in this case. 01-04881 -5- 125: Final Summary Judgment). The court denied the County's motion for summary judgment on the issue of settlement and release (R. 124 at 9, 25; R. 125).7 On January 4, 1996, Bledsoe filed an amended complaint alleging that the Conservation District violated Title II of the ADA and Section 504 of the Rehabilitation Act of 1973 (R. 168); 942 F. Supp. at 1441, n.1. The district court found that Bledsoe has contractually released the Conservation District from the claims at issue in this case, id. at 1442, and that, in any event, employment discrimination is not covered by Title II of the ADA. Id. at 1443. 3. The Decision Of The District Court. In its July 27, 1995, order the district court specifically found that the release Bledsoe signed was sufficiently ambiguous to preclude dismissal of the ADA Title I claims. Bledsoe v. Palm Beach County Soil & Water Conservation Dist., 942 F. Supp. 1439, 1441- 1442 (S.D. Fla. 1996). Subsequently, this Court affirmed, without opinion, the judgment of another district court finding that the identical release precluded a disability discrimination complaint against Palm Beach County by another employee. F.M. v. Palm Beach County, 912 F. Supp. 514 (S.D. Fla. 1995), aff'd, F.M. v. County Comm'rs, 84 F.3d 438 (11th Cir. 1996) (TABLE). In its October 17, 1996, decision, the district court in Bledsoe found that the release signed by Bledsoe terminated his right to sue ____________________ 7 The court denied Bledsoe's motion to add a claim under Title II of the ADA (R. 124: Omnibus Order at 14-15, 25). 01-04882 -6- for discrimination based upon disability. 942 F. Supp. at 1442. The district court also held that the plain language of Section 202 of Title II does not encompass a cause of action for employment discrimination. The court found that the phrase "'services, programs, or activities,' understood as a whole, focuses on a public's [sic] entity's outputs rather than on its imputs [sic]." 942 F. Supp. at 1443. The court characterized public employment as an input that enables a public entity to "produce desired outputs, such as parks and schools." Id. at 1444. The court also found that because other provisions of the ADA covered employment, the "fundamental problem with including employment under Title II is that such a move renders Title I redundant; insofar as Title I applies to public entities." Ibid. The court recognized that this reading would not render Title I entirely redundant because Title II would apply to public employers who do not meet the threshold of 15 employees to be covered under Title I. It concluded, however, that it was extremely unlikely that Congress intended to exclude public employers with less than 15 employees from the reach of Title I, only to have them covered by Title II. Id. at 1444-1445. The court also found that while Title I incorporates Title VII procedures, including the requirement that a plaintiff file a charge with the EEOC before filing a claim in federal court, Title II adopts the procedures used to enforce Section 504, which do not require exhaustion of administrative remedies. 942 F. 01-04883 - 7 - Supp. at 1445. The court noted that plaintiffs with a choice of suing a public employer covered by Title I under Title II instead are likely to choose Title II so that they can bypass the exhaustion requirement of Title I. The court termed this result a "drafting debacle[]." Id. at 1445-1446. The court also considered and rejected language in the House Report on the ADA that the court admitted would support coverage of employment in Title II. The court concluded that the "opinion of select members of one house of Congress * * * cannot take precedence over the plain meaning of the statute." Id. at 1446- 1447. In addition, the court found, from the floor debates, that "some members of Congress understood the fifteen employee threshold of Title I to apply to state and local government, as well as to private employers," and that such statements "sap the strength of the House Report's observation that employment actions are cognizable under Title II." Id. at 1448. Finally, the court refused to defer to the ADA Title II regulations promulgated by the Attorney General of the United States because "traditional tools of statutory construction render a result contrary to the agency's position." Id. at 1449. INTRODUCTION AND SUMMARY OF ARGUMENT 1. Because the district court has previously found reason to believe that Bledsoe did not knowingly waive his ADA rights under the applicable legal standard, summary judgment should not have been granted on that basis. Beadle v. City of Tampa, 42 F.3d 633, 635 (11th Cir.), cert. denied, 115 S. Ct. 2600 (1995). 01-04884 - 8 - 2. Summary judgment on the issue of whether Title II reaches employment was also erroneous. The purpose of Title II of the ADA was to extend the protections of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794a, to cover all activities of state and local governments, regardless of whether they receive federal financial assistance. Congress modeled the language of Section 202 on Section 504 and on Title IX of the Education Amendments of 1972, both of which had been held by the Supreme Court to prohibit discrimination in employment by recipients of federal financial assistance. Consolidated Rail Corp. v. Darrone, 465 U.S. 624 (1984); North Haven Bd. of Educ. v. Bell, 456 U.S. 512 (1982). In addition, Section 204 of Title II requires that regulations implementing Title II be consistent with the Section 504 coordination regulations, which expressly reach employment practices. The legislative history also clearly shows that Congress intended to cover employment in Title II. The authoritative committee reports state that "the forms of discrimination prohibited by section 202 (are) identical to those" in Titles I and III of the ADA," H.R. Rep. No. 101-485(II), 101st Cong., 2d Sess. 84 (1990), and Title I covers solely employment issues. Other language in the committee reports also demonstrates Congress's understanding that Title II covers employment practices. The district court's reasons for rejecting the plain meaning of the language and legislative history of Section 202 are 01-04885 - 9 - flawed. Construing Title II to reach employment discrimination with respect to public employers does not make Title I superfluous any more than construing Title IX of the Education Amendments of 1972 to reach employment discrimination made Title VII of the Civil Rights Act of 1964 superfluous as to sex discrimination by federally financed educational employers. Rather, it provides an alternative remedy. See North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 535 n.26 (1982). Moreover, since Title II was modeled on Section 504, rather than on Title VII, Section 202, like Section 504, applies to public employers regardless of size. Congress intended to extend the protections of Section 504 to state and federal employees regardless of federal financial assistance. Because Congress also intended to follow the enforcement model of Section 504 as to public entities, it did not intend to introduce an exhaustion requirement in Section 202 where none exists under Section 504. ARGUMENT I AN EMPLOYEE HAS NOT KNOWINGLY WAIVED HIS RIGHTS UNDER THE ADA WHERE THE WAIVER LANGUAGE IS AMBIGUOUS The Supreme Court has held that an employee knowingly and voluntarily releases an employer from liability for Title VII claims only where there is a full understanding that agreement waives those rights. Alexander v. Gardner-Denver Co., 415 U.S. 36, 52 & n.15 (1974). The same principle should be equally applicable to waiver of rights under Title II of the ADA. 01-04886 -10- Rivera-Flores v. Bristol-Myers Squibb Caribbean, 112 F.3d 9 (1st Cir. 1997). This Court has held that the waiver of such remedial rights must be closely scrutinized, Freeman v. Motor Convoy, Inc., 700 F.2d 1339, 1352 (1983), and a court should look to the totality of the circumstances to determine whether the release is knowing and voluntary. Puentes v. United Parcel Serv., Inc., 86 F.3d 196, 198 (11th Cir. 1996). A court should take into consideration: the plaintiff's education and business experience; the amount of time the plaintiff considered the agreement before signing it; the clarity of the agreement; the plaintiff's opportunity to consult with an attorney; the employer's encouragement or discouragement of consultation with an attorney; and the consideration given in exchange for the waiver when compared with the benefits to which the employee was already entitled. Beadle v. City of Tampa, 42 F.3d 633, 635 (11th Cir.), cert. denied, 115 S. Ct. 2600 (1995). In its 1995 opinion on Palm Beach County's motion for summary judgment on the issue of settlement and release, the court found that a "material issue exists with regard to whether the settlement agreement did in fact contemplate a general waiver of all rights," including Bledsoe's ADA rights. The denial of summary judgment was based upon the court's finding that the release Bledsoe signed was ambiguous because, "[a]lthough the general waiver clearly states that 'any and all claims' are to be surrendered, virtually all other provisions of the agreement, taken together or viewed separately, strongly suggest that the settlement agreement contemplated only claims for workers' 01-04887 -11- compensation benefits" (R. 124 at 8). In addition, the court found that Paragraph 10 of the settlement "remains utterly silent with respect to the value of the rights allegedly waived in the general release provision." R. 124 at 9. Thus, it appears that the district court found two of the factors identified by this Court in Beadle to establish that any waiver of ADA rights was not knowing and voluntary. In its subsequent grant of summary judgment, however, the district court reversed itself, based upon this Court's order in F.M. v. County Comm'rs, 84 F.3d 438 (11th Cir. 1996) (TABLE), summarily affirming the decision in F.M. v. Palm Beach County, 912 F. Supp. 514 (S.D. Fla. 1995). The district court stated that, whether it is "bound" by the summary affirmance or "merely persuaded," it would follow that decision and find that the release terminated Bledsoe's right to sue for discrimination under the ADA. 942 F. Supp. at 1442. In doing so, however, it made no additional findings, nor did it disavow its prior findings that the waiver Bledsoe signed was ambiguous, and the monetary settlement did not consider the value of ADA rights. Under these circumstances, the district court's findings of fact do not support its grant of summary judgment. II TITLE II OF THE ADA REACHES EMPLOYMENT PRACTICES OF PUBLIC ENTITIES Prior to the district court's decision in this case, there were a number of district courts, and one court of appeals, that 01-04888 -12- had either assumed or directly held that Title II covers employment discrimination. Doe v. University of Md. Medical Sys. Corp., 50 F.3d 1261, 1264-1265 (4th Cir. 1995); Davoll v. Webb, 943 F. Supp. 1289, 1297 (D. Colo. 1996); Wagner v. Texas A & M Univ., 939 F. Supp. 1297, 1309 (S.D. Tex. 1996); Graboski v. Guiliani, 937 F. Supp. 258, 268-269 (S.D.N.Y. 1996); Silk v. City of Chicago, No. 95-C-0143, 1996 WL 312074, *10 (N.D. Ill. June 7, 1996); Bruton v. Southeastern Pennsylvania Transp. Authority, No. 94-CV-3111, 1994 WL 470277, *2 (E.D. Pa. Aug. 19, 1994); Ethridge v. Alabama, 847 F. Supp. 903, 906 (M.D. Ala. 1993), and 860 F. Supp. 808, 812 (M.D. Ala. 1994); Eisfelder v. Michigan Dept. of Natural Resources, 847 F. Supp. 78, 83 (W.D. Mich. 1993); Finley v. Giacobbe, 827 F. Supp. 215, 219-220 (S.D.N.Y. 1993); Petersen v. University of Wis. Bd. of Regents, 818 F. Supp. 1276, 1278 (W.D. Wis. 1993); Bell v. Retirement Bd. of Firemen's Annuity & Benefit Fund of Chicago, No. 92-C-5197, 1993 WL 398612, *4 (N.D. Ill. Oct. 6, 1993). Indeed, subsequent to the district court's decision, this Court in Holbrook v. City of Alpharetta, Georgia, 112 F.3d 1522, 1528-1529 (11th Cir. 1997), assumed, without deciding, that Title II covers employment, but concluded that the plaintiff's claim in that case arose before the effective date of Title II. The decision in this case is the first to reject employment coverage under Title II based upon a detailed legal analysis of the issue. Neither of the cases cited by the district court in support of its holding that Title II does not cover employment 01-04889 -13- contains any legal analysis on that issue. See Iskander v. Rodeo Sanitary Dist., No. 94-C-0479, 1995 WL 56578 *9 (N.D. Cal. 1995); Dertz v. City of Chicago, 912 F. Supp. 319, 325 (N.D. Ill. 1995). The district court recognized that its decision is against the strong weight of authority. It is also erroneous. A. Employment Coverage Is Clear From The Language And Structure Of Title II. 1. Section 202. Discriminatory employment practices easily fall within the plain meaning of Section 202. That section states: Subject to the provisions of [Subchapter II - Public Services], 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. The Supreme Court in North Haven Bd. of Educ. v. Bell, 456 U.S. 512 (1982), interpreted similar language in Section 901 of Title IX of the Education Amendments of 1972, 20 U.S.C. 1681, to encompass claims of employment discrimination. The relevant language of Title IX states: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. The Court in North Haven began by noting that "[s]ection 901(a)'s broad directive that 'no person' may be discriminated against on the basis of gender appears, on its face, to include employees as well as students. Under that provision, employees, like other 01-04890 -14- 'persons,' may not be 'excluded from participation in,' 'denied the benefits of,' or 'subjected to discrimination under' education programs receiving federal financial support." Here, instead of "person," Section 202 of the ADA uses the term "otherwise qualified individual" to describe the class intended to be protected. That term is narrower in some respects, because an individual with a disability must meet some qualifications in order to be protected by Section 202. But nothing about the term suggests that employees are excluded from the broad category of "otherwise qualified individual[sl." Thus, Section 202, like Section 901(a) of Title IX, covers employment. See North Haven, 456 U.S. at 538 (program-specific language of Title IX should be given a similar construction as virtually identical language in Title VI of the Civil Rights Act of 1964); see also Eisfelder v. Michigan Dept. of Natural Resources, 847 F. Supp. 78, 83 (W.D. Mich. 1993). Two years after North Haven, the Court interpreted similar language in Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, as protecting employees from discrimination based upon disability in Federally financed programs and activities. Consolidated Rail Corp. v. Darrone, 465 U.S. 624 (1984).8/ In Darrone, the employer argued that the 1978 amendments to the ____________________ 8/ At the time Darrone was decided, Section 504 stated: No otherwise qualified handicapped individual * * * shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. 01-04891 -15- Rehabilitation Act, by making available to aggrieved persons the remedies, procedures, and rights of Title VI of the Civil Rights Act of 1964, also incorporated Section 604 of Title VI, 42 U.S.C. 2000d-3, which limits employment claims to contexts in which the primary objective of the Federal financial assistance is to provide employment. Before reaching the question whether the 1978 amendments placed a limitation on actionable discrimination, the Court held that it was "unquestionable" that the original language of Section 504 was intended to reach employment discrimination, especially because "enhancing employment of the handicapped" was a major focus of the Rehabilitation Act. 465 U.S. at 632. Because Congress, in enacting Title II of the ADA, was extending the protections of Section 504 to all programs, activities and services provided by public entities, regardless of whether such entities receive Federal financial assistance, the Court's analysis in Darrone demonstrates that Section 202 covers employment. Instead of following the analysis used by the Court in North Haven or Darrone, the district court asked "whether the terms 'services, programs, or activities' bear a plain meaning inclusive of the term 'employment'," 942 F. Supp. at 1443. The court found that the phrase "'services, programs, or activities,' understood as a whole, focuses on a public's [sic] entity's outputs rather than on its imputs [sic]." 942 F. Supp. at 1443. The court characterized public employment as an input that enables a public entity to "produce desired outputs, such as 01-04892 -16- parks and schools." ID. at 1444. Even assuming that the question asked by the district court is the appropriate one to ask, the court's analysis ignored the prohibition in the final clause of the section, which protects qualified individuals with a disability from being "subjected to discrimination by any such entity," 42 U.S.C. 12132, and is not tied directly to the "services, programs, or activities" of the public entity. As the Second Circuit recently found in Innovative Health Systems, Inc. v. City of White Plains, No. 96-7797, 1997 WL 349853, *5 (June 26, 1997), "the language of Title II's anti-discrimination provision does not limit the ADA's coverage to conduct that occurs in the 'programs, services, or activities' of [a public entity]. Rather, it is a catch-all phrase that prohibits all discrimination by a public entity, regardless of the context." 2. Section 204. Section 204 also demonstrates that Congress intended Title II to reach employment. Section 204(b) states, that, with certain exceptions not relevant here, "regulations [to implement Title II] shall be consistent with this chapter and with the coordination regulations under part 41 of Title 28, Code of Federal Regulations * * * applicable to recipients of Federal financial assistance under section 794 of title 29 [Section 504]." 42 U.S.C. 12134(b). Those regulations expressly prohibit employment discrimination on the basis of disability. See 28 C.F.R. 41.52-41.55. Congress referred in Section 204(b) specifically to provisions that expressly reach employment practices. 01-04893 -17- The combined effect of these two statutory provisions strongly supports Bledsoe's contention that Congress intended employment discrimination to be covered under Title II. B. The Legislative History Of Title II Demonstrates That Congress Intended To Prohibit Employment Discrimination. In our view, the plain language of Section 202 so clearly includes employment discrimination that there is no need to refer to the legislative history of the ADA. Resort to the legislative history, if necessary, only further demonstrates that Title II reaches employment. In promulgating Title II regulations covering employment, the Justice Department relied upon statements in the report of the House Education and Labor Committee. 56 Fed. Reg. 8545 (Feb. 28, 1991). The Report stated that Title II "essentially simply extends the anti-discrimination prohibition embodied in section 504 to all actions of state and local governments. H.R. Rep. No. 101-485(II), 101st Cong., 2d Sess. 84 (1990). See Ethridge v. Alabama, 847 F. Supp. 903, 906 (M.D. Ala. 1993). In addition, the Report noted Congress's intention that: the forms of discrimination prohibited by section 202 [are] identical to those set out in the applicable provisions of titles I and III of this legislation. Thus, for example, the construction of "discrimination" set forth in section 102(b) and (c) and section 302(b) should be incorporated in the regulations implementing this title. Subsections 102(b) and (c) of Title I, to which Congress referred in this portion of the Report, specify the forms of employment 01-04894 -18- discrimination prohibited by Title I. This portion of the Report shows that Congress intended those same types of discriminatory policies and practices to be prohibited by Title II. The House Report also noted that Section 204 of the ADA requires that regulations issued to implement Section 202 be consistent with the Section 504 regulations. H.R. Rep. No. 101- 485(II) at 84. The Report states (ibid.; emphasis added): Thus, the requirements of th[e Section 504] regulations apply as well [to Title II], including any requirements such as program access that go beyond titles I and III. In addition, activities which do not fit into the employment or public accommodations context are governed by the analogous section 504 regulations. In addition, the House Judiciary Committee Report states (H.R. Rep. No. 101-485(III), 101st Cong., 2d Sess. 50 (1990) (emphasis added)): The general prohibitions set forth in the Section 504 regulations, are applicable to all programs and activities in title II. The specific sections on employment and program access in existing facilities are subject to the "undue hardship" and "undue burden" provisions of the regulations which are incorporated in Section 204. No other limitation should be implied in other areas. The Judiciary Committee Report also states that "[i]n 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.'" Ibid. (emphasis added). These directives in the House Reports clearly indicate Congress's intention that Title II reach employment 01-04895 -19- discrimination. "A committee report represents the considered and collective understanding of those Congressmen involved in drafting and studying proposed legislation. Floor debates reflect at best the understanding of individual Congressmen. It would take extensive and thoughtful debate to detract from the plain thrust of a committee report in this instance." Zuber v. Allen, 396 U.S. 168, 186 (1969). 9/ The district court's reliance on Shannon v. United States, 114 S. Ct. 2419 (1994), as authority for dismissing the statements in the Report is misplaced. In Shannon, the Supreme Court refused to give any weight to a statement in the Senate Report on the Insanity Defense Reform Act of 1984, 98 Stat. 2057. The Report endorsed a procedure used in the District of Columbia for permitting a jury to be instructed on the effect of a verdict of not guilty by reason of insanity, but the Court found that this "single passage of legislative history [was] in no way anchored in the text of the statute" and "does not purport to explain or interpret any provision of the IDRA." 114 S. Ct. at 2426. Unlike the statement in the Senate Report at issue in Shannon, the statements in the House Report of Congressional intent in enacting the ADA are well "anchored in the text of the statute." Shannon, 114 S. Ct. at 2426, and clearly "explain or ______________________ 9/ The district court acknowledged that the portions of the floor debate on which it relied to hold that Title II does not reach employment were "admittedly ambiguous snippets." 942 F. Supp. at 1448. 01-04896 -20- interpret" Sections 202 and 204. C. The District Court's Analysis Is Flawed. The district court gave two reasons for concluding that the statutory scheme as a whole precluded coverage for employment under Title II. First, it found extremely unlikely that Congress would have exempted public employers with fewer than 15 employees from coverage under Title I, but cover them in Title II. Second, the court felt Congress could not have intended individuals to sue directly in court for employment discrimination under Title II, thereby bypassing the administrative remedies employees suing under Title I must exhaust. At the time the Justice Department first published its Notice of Proposed Rulemaking, the proposed Title II regulations reached employment discrimination but incorporated Title I definitions, requirements, and procedures established by the EEOC, including the definition of employer that delayed the effective date of the Act for employers with 15-24 employees and exempted public employers with fewer than 15 employees. In doing so, the Department relied upon the "remedial scheme that [Congress] wished to create for attacking discrimination in employment" as established in Title I. 56 Fed. Reg. 8546 (Feb. 28, 1991). After receiving comments objecting to this approach, the Department reexamined the statutory language and legislative history and "concluded that Congress intended to cover the employment practices of all public entities." 28 C.F.R. Pt. 35, App. A, Subpt. C. 01-04897 -21- In explaining this change, the Department relied upon Section 204(b) of the ADA which requires the ADA regulations to be consistent not only with the ADA itself but also with the Department's coordination regulations under Section 504. Since the Section 504 regulations not only reach employment but do not limit coverage based upon the size of the employer, the Department concluded that Title II was written to cover employment practices of all public entities, regardless of the size of the employer. Ibid. See Petersen v. University of Wis. Bd. of Regents, 818 F. Supp. 1276, 1279 (W.D. Wisc. 1993); Bruton v. Southeastern Pennsylvania Transp. Auth., No. 94-CV-3111, 1994 WL 470277 (E.D. Pa. Aug. 19, 1994). The regulations are thus consistent with Congress's apparent intent to exclude small private employers, but not small public employers. That policy decision may well be based upon the view that public employers should be on the forefront of eliminating employment discrimination based upon disability. It may also reflect cost considerations that affect small private employers more than small public entities. In any event, the plain language of Title II, and its legislative history, make clear that Title II was intended to cover employment practices of all public entities, resulting in an Act that reaches all public employers but excludes very small private employers. The final regulations also clearly explain the second "textual incongruity" the district court identified, -- the fact that Title I requires employees to exhaust EEOC administrative 01-04898 -22- procedures while employees suing under Title II may bypass that exhaustion requirement. Bledsoe, 942 F. Supp. at 1445. The regulations rely upon the clear directive of the House Committee report that the "administrative enforcement of section 202 of the [ADA] should closely parallel the Federal government's experience with Section 504 of the Rehabilitation Act of 1973." The Report specifically states that "it is not the Committee's intent that persons with disabilities need to exhaust Federal administrative remedies before exercising their private right of action" under Section 202. H.R. Rep. No. 101-485(II), 101st Cong., 2d Sess. at 98 (1990). See also S. Rep. No. 116, 101st Cong., 1st Sess. at 57-58 (1989). The reason Title II was enacted without a requirement of exhaustion is that, prior to the enactment of the ADA, individuals who were employed by entities covered by Section 504 could either file complaints with the appropriate federal funding agency to begin an administrative investigation, or choose to go to court without exhausting that administrative process. The legislative history of Title II of the ADA establishes that Congress did not intend to require exhaustion where none had been required before, and so Title II did not include an exhaustion requirement. In addition, since individuals with disabilities who filed employment discrimination complaints against recipients of Federal financial assistance were able to have their complaints investigated and conciliated by Federal agencies, Congress wanted 01-04899 -23- to establish a parallel mechanism under Title II for employees of all public entities. Thus, Congress stated that the Department of Justice should identify appropriate Federal agencies to oversee compliance activities for State and local governments. As with section 504, these Federal agencies, including the Department of Justice, will receive, investigate, and where possible, resolve complaints of discrimination. If a Federal agency is unable to resolve a complaint by voluntary means, the Federal government would use the enforcement sanctions of section 505 of the Rehabilitation Act of 1973. Because the fund termination procedures of section 505 are inapplicable to State and local government entities that do not receive Federal funds, the major enforcement sanction for the Federal government will be referral of cases by these Federal agencies to the Department of Justice [which] may then proceed to file suits in Federal district court. H.R. Rep. No. 101-485 at 98 (1990). The Department of Justice has implemented the scheme that Congress envisioned by regulation. 28 C.F.R. 35.190. Pursuit of administrative remedies is therefore an option that was preserved by Congress. Thus, the different treatment of employment claims brought under Titles I and II that the district court identified are the direct result of conscious choices made by Congress in enacting the ADA. They certainly do not create such an anomalous situation that the only reasonable way to make Titles I and II consistent is to exclude employment totally from Title II. While the district court may disagree with the wisdom of Congress's choices, the language and legislative history of the ADA make Congress's choice to cover employment practices under Title II exceedingly clear. 01-04900 -24- CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed. Respectfully submitted, WILLIAM R. YEOMANS Acting Assistant Attorney General (Signature) Marie K. McElderry ______________________________ MARK L. GROSS MARIE K. McELDERRY Attorneys Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 514-3068 01-04901 CERTIFICATE OF SERVICE I hereby certify that I served two copies of the foregoing Brief For The United States As Amicus Curiae on counsel of record by first class mail, postage prepaid, at the following addresses: Richard H. McDuff, Esq. Johnson, Anselmo, Murdoch, Burke & George, P.A. 790 E. Broward Boulevard - 4th Floor Fort Lauderdale, Florida 33301 Isidro M. Garcia, Esq. Garcia, Elkins, & Carbonell, P.A. The Citizens Building 105 South Narcissus Avenue - Suite 802 West Palm Beach, Florida 33401 This 2nd day of July, 1997. (Signature) _________________________ Marie K. McElderry Attorney 01-04902