questions presented forreview 1. whether...

QUESTIONS PRESENTED FOR REVIEW

1. Whether Title II of the Americans with Disabilities Act, 42 U.S.C. §12132, provides a cause ofaction for employment discrimination.

2. Whether Title II of the Americans with Disabilities Act, 42 U.S.C. §12132, is unconstitutionalwhen applied to employment discrimination claimsagainst non-consenting states.

• 1

-1

11

TABLE OF CONTENTSPage

QUESTIONS PRESENTED FOR REVIEW iTABLE OF CONTENTS {iTABLE OF AUTHORITIES ivPERTINENT CONSTITUTIONAL PROVISIONS,

STATUTES, AND REGULATIONS 1STATEMENT OF THE CASE • - 1

A. United States District Court for the Western District ofOklahoma *

B. United States Court of Appeals for theTenth Circuit 2

C. Title II of the Americans with DisabilitiesAct 3

REASONS FOR DENYING THE PETITIONFOR WRIT OF CERTIORARI 4I PETITIONER MISSTATES THE NATIONAL

LANDSCAPE OF JUDICIAL RECOGNITION OF THE SETTLED LAW 4A. The Circuit and Federal District

Courts 8B. The Supreme Court of the United

States 20II THE COURT BELOW CORRECTLY AP

PLIED THE SETTLED LAW 23A. The Statute Is Not Ambiguous 23

iii

TABLE OF CONTENTS - ContinuedPage

B. The Legal Result Would Not Changeupon Review of Extrinsic Sources 27

III ANY MODIFICATION OF THE SETTLEDLAW IMPLICATES THE ELEVENTHAMENDMENT AND THE CONSTITUTIONALITY OF TITLE II AS APPLIEDTO NON-CONSENTING STATES FOREMPLOYMENT CLAIMS 30

CONCLUSION 36SUPPLEMENTAL APPENDLX Supp. App. 1

Iiv

TABLE OF AUTHORITIESPage

Cases

Alcala v. California Department of Transportation,.No. C09-5837 SI, 2010 WL 2975815(N.D. Cal. July 26, 2010) i0

Allen v. Hamm, No. Civ.A. RDB 05-879, 2006WL 436054 (D. Md. Feb. 22, 2006) ^

Allen v. Saif Corp., No. CV 04-1460-BR, 2005WL 708402 (D. Or. Mar. 29, 2005) iy

Almendarez-Torres v. United States, 523 U.S.224(1998)

Atwell v. City of Surprise, 440 F. Appx. 585 (9thCir.2011)

Ayantola v. Community Technical C°%f™f9°£necticut Board ofTrustees, No-3:05CV957(MRK),2007 WL 963178 (D. Conn. Mar. 30, 2007) 11

Ayoub v. Pennsylvania Department ofPubUcWelfare, No. CIV.A. 99-CV-6067, 2002 WL3177880KE.D. Pa. Dec. 12, 2002) 12, 23

Barbour v. Washington Metropolitan AreaTransit Authority, 374 F.3d 1161 (D.C. Or.2004)

Barry v. City of Madison, 1994 WL 593920(W.D.Wis.) •

Benedum v. Franklin Recycling Center No.CIV. A. 95-1343, 1996 WL 679402 (W.D. Pa.Sept. 12,1996)

TABLE OF AUTHORITIES - ContinuedPage

Bledsoe v. Palm Beach County Soil & WaterConservation District, 133 F.3d 816 (11th Cir.1998) passim

Bloom v. New York City Board of Education,No. 00 Civ. 2728CHBP), 2003 WL 1740528(S.D.N.Y Apr. 2, 2003) H

Blumberg v. Nassau Health Care Corp., 378F. Supp. 2d 122 (E.D.N.Y. 2005) H

Board of Trustees of the University ofAlabamav. Garrett, 531 U.S. 356 (2001) passim

Bracciale v. City of Philadelphia, No. CIV. A.97-2464, 1997 WL 672263 (E.D. Pa. Oct. 29,1997) 12

Brettler v. Purdue University, 408 F. Supp. 2d640 (N.D. Ind. 2006) 16, 24

Bromley v. Washington DSHS/ADSA, No. C07-1368 MJP, 2008 WL 5348208 (WD. Wash.Dec. 17,2008) i8

Brown v. City of Los Angeles, 521 F.3d 1238(9th Cir. 2008) i8

Brown v. Connecticut, No. 3:08cvl478(MRK),2010 WL 2220580 (D. Conn. May 27, 2010) 10, 23

Brown v. Department of Social & Health Services, No. C05-5635 FDB, 2006 WL 3254501(WD. Wash. Nov. 9, 2006) 18

Bruton v. Southeastern Pennsylvania Transportation Authority, No. Civ.A. 94-CV-3111, 1994WL 470277 (E.D. Pa. Aug. 19, 1994) 12

8'

ftw

vi

TABLE OFAUTHORITIES - ContinuedPage

Canfield v. Isaacs, 523 F. Supp. 2d 885 (N.D. ^Ind. 2007) i6' 23

Carmona-Rivera v. Puerto Rico, 464 F.3d 14(1st Cir. 2006) 9

Castells v. Fisher, No. 05 CV 4866(SJ), 2007WL 1100850 (E.D.N.Y. Mar. 24, 2007) 36

Chiesa v. New York State Department of Labor,638 F. Supp. 2d 316 (N.D.N.Y. 2009) 11

Chevron U.S.A., Inc. v. Natural ResourcesCouncil, Inc., 467 U.S. 837 (1984) 29 .

Circuit City Stores, Inc. v. Adams, 532 U.S. 105(2001) 24

Cisneros v. Colorado,No CIVA.03CV02122WDMCB,2005 WL 1719755 (D. Colo. July 22, 2005) 36

City ofBoerne v. Flores, 521 U.S. 507 (1997) 33, 35Clark v. City of Chicago, No. 97 C 4820, 2000

WL 875422 (N.D. 111. June 28, 2000) 16Cleburne v. Cleburne Living Center, 473 U.S.

432(1985) 34Clifton v. Georgia Merit System, 478 F. Supp. 2d

1356 (N.D. Ga. 2007) 19, 20, 23, 36Coleman v. City of Tucson, No. CV 08-98 TUC

DCB, 2008 WL 5134346 (D. Ariz. Dec. 5,2008) 18

Coleman v. Court of Appeals ofMd., -- U.S. --,132 S.Ct. 1327 (Mar. 20, 2012) 31, 32

vii


Coleman v. Town of Old Saybrook, No.3:03CV0127(RNC), 2004 WL 936174 (D.Conn. Apr. 28, 2004) H

Conwright v. City of Oakland, No. C09-2572TEH, 2010 WL 3515741 (N.D. Cal. Sept. 8,2010) 18

Cormier v. City ofMeriden,No. CrVA.3:03CV1819(JBA),2004 WL 2377079 (D. Conn. Sept. 30, 2004) 11, 24

Credle-Brown v. Connecticut Department ofChildren & Families, No. 3:04-cv-1167(WWE),2009 WL 1097961 (D. Conn. Apr. 21, 2009) 11

Currie v. Group Insurance Commission, 147F. Supp. 2d 30 (D. Mass. 2001J 9, 23

Currie v. Group Insurance Commission, 290F.3d 1 (1st Cir. 2002) 9

Dada v. Mukasey, 554 U.S. 1 (2008) 25Davenport v. Idaho Department ofEnvironmen

tal Quality, 469 F. Supp. 2d 861 (D. Idaho2006) 18

Decker v. University of Houston, 159 F.3d 1355(5th Cir. 1998) 1S

Decker v. University of Houston, 970 F. Supp.575 (S.D. Tex. 1997) • i3

Denton v. Arizona, 12 F.Appx. 553 (9th Cir.2001) : 18

Department ofCommerce v. United States HouseofRepresentatives, 525 U.S. 316 (1999) 30

6i

viii


Dertz v. City of Chicago, 912 F. Supp. 319 (N.D. ^111.1995)

Diaz v. Department of Education, No. 09-1564(JAG), 2011 WL 4625983 (D.P.R. Sept.30,2011)

Doe v. County of Milwaukee, 871 F. Supp. 1072(E.D. Wis. 1995)

Doe v. University of Maryland Medical SystemCorp., 50 F.3d 1261 (4th Cir. 1995) "

Dominguez v. City of Council Bluffs, 974F. Supp. 732 (S.D. Iowa 1997)

Downs v. Massachusetts Bay ^P01*^^ q ui/u^y, 13 F. SuPP. 2d 130 (D. Mass. 1998) 9,14Eisfelder v. Michigan Department of Natural

Resources, 847 F. Supp. 78 (WD. Mich. 1997) 16Elwell v. Oklahoma ex rel. Boardofte&ntsof

the University of Oklahoma, 693 F.3d 1303(10th Cir. 2012) D'

Elwell v. Oklahoma ex rel. Board ofRegeMsofthe University of Oklahoma No CIV-10-1169-C, 2011 WL 560455 (WD. Okla. Feb. 8,2011) ' ' '

Emmons v. City University of New York, 715F Supp. 2d 394 (E.D.N.Y. 2010) ™

Filush v. Weston, 266 F. Supp. 2d 322 (D. Conn. ^2003) '

Finley v. Giacobbe, 827 F. SuPP. 215 (S.D.N.Y. ^1993)

ix


Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) 32Fleming v. State University of New York, 502

F. Supp. 2d 324 (E.D.N.Y. 2007) 11, 23Florida Prepaid Postsecondary Education

Expense Board v. College Savings Bank, 527U.S. 627 (1999) 33

Fourco Glass Company v. Transmirra ProductsCorp., 353 U.S. 222 (1957) 25

Frame v. City ofArlington, 657 F.3d 214 (5thCir. 2011) 29

Gallagher v. Town of Fairfield, No. 3:10-CV-1270(CFD), 2011 WL 3563160 (D. Conn. Aug.15, 2011) 10' 22

Garcia v. Adams, No. l:06-cv-00360-OWW-DLB PC, 2007 WL 570217 (E.D. Cal. Feb. 21,2007) 18

Gilbert v. City of St. Charles, No. 96 C 7101,1999 WL 182151 (N.D. 111. Mar. 24, 1999) 16

Hagood v. Metropolitan Government of Nashville, 176 F. Appx. 660 (6th Cir. 2006) 15

Harper v. Virginia Department of Taxation, 509U.S. 86(1993) 13

Hemby-Grubb v. Indiana University of Pennsylvania, No. 2-.06CV1307, 2008 WL 4372937(WD. Pa. Sept. 22, 2008) 12

Henny v. New York State, 842 F. Supp. 2d 530(S.D.N.Y. 2012) 1°

X


Hernandez v. Hartford, 959 F. Supp. 125 (D. ^Conn. 1997)

Holley v. Carey, No. CIV S-042708 LHKEFB,2007 WL 2533926 (E.D. Cal. Aug. 31, 2007) i»

Holm v. Washington State Penitentiary, 19F. Appx. 704 (9th Cir. 2001) •• xo

Holmes v. Texas A&M University, 138 F.3d 168(5th Cir. 1998) ' L%

Holmes v. Texas A&M University, 145 F.3d 681(5th Cir. 1998) x%

Innovative Health Systems, Inc. v. City of WhitePlains, 117 F.3d 37 (1997) iU

Jackson v. City of Chicago, 215 F. Supp. 2d 975(N.D. IU. 2002)

Jones v. New York State, 2012 WL 2478344(S.D.N.Y. June 28)

Karam v. Delaware Division of Services forChildren, Youth & Their Families, No. CIV.0^04 RBK/JS, 2010 WL 5343182 (D. Del.Dec. 15,2010)

Kimel v. Florida Board of Regents, 528 U.S. 62 ^(2000) '

King v. Clarke County, Alabama, No. CA 12-ofl2-CG-C, 2012 WL 5287040 (S.D. Ala.Sept. 27, 2012)

Koslow v. Pennsylvania, 158 F. Supp. 2d 539(E.D. Pa. 2001)

xi


Leine v. California Department of Rehabilita-tion, 205 F.3d 1351 (9th Cir. 1999) 1»

Leverette v. Alabama Revenue Department, 453F. Supp. 2d 1340 (M.D.Ala. 2006) 19, 3b

Lieberman v. Delaware, No. CIV A. 96-523GMS, 2001 WL 1000936 (D. Del. Aug. 30, ^2001)

Lightsy v. Hawaii, No. CIV.05-00515ACK/LEK,|006 WL 314335 (D. Haw. Feb. 7, 2006) 18

MaGee v. Nassau County Medical Center, 27F. Supp. 2d 154 (E.D.N.Y. 1998) "•

Manhattan General Equipment ^v. Commissioner of Internal Revenue, 297 U.b. LZ» ^(1936)

Mallen v. City of Sierra Madre, 246 F.3d 674(9th Cir. 2000)

Marbury v. Madison, 5U.S. 137 (1803) 31Marsh v. Georgia Department of Behavioral

& Health Developmental Disabilities, No.CV410-273, 2011 WL 806423 (S.D. Ga. Feb.14, 2011) iy'

Martin v. Office of Public Defender, 185 F.3d868 (9th Cir. 1999) 10

Mary Jo C. v. New York State &Local Retirement System, No. 09-CV-5635(SJF) ARL)2011 WL 1748572 (E.D.N.Y. May 5, 2011) 10, U

Maxwell v. South Bend Work Release Center,787 F. Supp. 2d 819 (N.D. Ind. 2011) lb, ^

xii


McEZu,., County of Orange, 700 F.3d 635 (2d ^Cir. 2012) ""

McSherry v. Department of Labor frustaNo OVA- 1-04-CV-132, 2006 WL 463157 ^(M D Pa. Feb. 23, 2006)

Medina-Medina v. Puerto Rico, 769 F. SuPP. 2d g77 (D.P.R- 2011)

227 (D.PR. 2002)

WL 211029 (S.D.N.Y. Jan. 26, 2009)„ Tribunal General deMT^^s;Plato6(D.P.K.2oo7)...

*.,*»«* * —»cfS' .^In,12Center, 154 F.3d 113 (3d Cir. 1»»»).-

-^^^ws^^ 19

m*^ , ***«***£t/niuerei!:..938 9F Supp. 983 (D. Mass. 1996)Mullen , R^Hoff No 98-7019, 1999, WL g

568040 (2d Cir. July 22,1999)

Xlll

TABLE OFAUTHORITIES - ContinuedPage

Muskrat v. United States, 219 U.S. 346 (1911) 31Nehara v. California, No. 110-CV-00491-OWW-

SMS, 2010 WL 2822850 (E.D. Cal. July 16,2010) 18

Nelson v. Pennsylvania Department of PublicWelfare, 244 F. Supp. 2d 382 (E.D. Pa. 2002) 12, 23

O'Haire v. Napa State Hospital, No. C 09-2508RMW PR, 2012 WL 762076 (N.D. Cal. Mar.8,2012) 18

Olson v. New York, 315 F.Appx. 361 (2d Cir.2009) 9

Olson v. New York, No. 04-CV-0419(DRH)(MLO),2005 WL 5885368 (E.D.N.Y. Mar. 9, 2005) 11

Osborne v. Oklahoma Employment SecurityCommission, No. CIV-05-1500-L, 2006 WL2090089 (WD. Okla. July 25, 2006) 19, 36

Ostrofsky v. Sauer, No. CIV S-07-0987 MCE EFBPS, 2007 WL 4210057 (E.D. Cal. Nov. 27,2007) 18

Parker v. Metropolitan Life Insurance Co., 121F.3d 1006 (6th Cir. 1997) I5

Patterson v. Illinois, Department of Corrections,35 F. Supp. 2d 1103 (CD. 111. 1999) 16

Pennsylvania State Troopers Association v.Pennsylvania, No. L06-CV-1079, 2007 WL853958 (M.D. Pa. Mar. 20, 2007) 12

Perry v. State Insurance Fund, 83 F. Appx. 351(2d Cir. 2003) 9

xiv

TABLE OF AUTHORITIES -Continued ^

Peterson , Vniuersi* ofWisconsi, 818 ^F. Supp. 1276 (W.D. W». 1993) ..•-

Popo^ *Côga County Court, 276 F.3d &808 (6th Cir. 2002) .

-^^r3Û18ÂSÛWL&£Conn. May 12, 2011) ...._•». 22

Beta*.* «• nô»J***^* Out Ipriicv-028, 2010 WL 188230b (o.v. lg

D.23'20'l''No'''ioCv'l064MMAPCL, 2010EtWLU57C88967N(°S.D. Cal. Dec. 30, 2010) ;-17,18

• , r A No 3-U-194-MBS-R%% "20f2 WLt8r617C8%.S.C.Feb. 13,2012) 35nIL ,shcuaa co., 5i9 as. 337 w -Bogers , VePartment of Health, m ^^; u

635 (D S.C. 1997)

"S^^SSf^ uNov 18,1997) -ZLo.U^S^464U.S.16(1983)... *

Russeuo cV-4458 JLL, 2006Russo v. Ryerson No_ 01-CV4£» 12WL 477006 (D.N.J. Feb. 28, 2UIW

•sswjwsa^rsi ,2012)

XV


Sarkissian v. West Virginia University Boardof Governors, No. L05CV144, 2007 WL1308978 (N.D.W.V May 3, 2007) 13

Scherman v. New York State Banking Department, No. 09 Civ. 2476(DAB)(AJP), 2010 WL997378 (S.D.N.Y Mar. 19, 2010) 10, 23

Sepulveda-Villarini v. Department ofEducationofPuerto Rico, 628 F.3d 25 (1st Cir. 2010) 8

Shannon v. United States, 512 U.S. 573 (1994) 27

Shipman v. New York State, 2012 WL 2478344(S.D.N.Y. March 13, 2012) 35

Shortell v. Office of Court Administration, No.12 Civ. 0534 (BMC)(LB), 2012 WL 3230492(E.D.N.Y. Aug. 6, 2012) 10

Silk v. City ofChicago, No. 95 C 0143, 1996 WL312074 (N.D. 111. June 7, 1996) 16

Simms v. City ofNew York, 160 R Supp. 2d 398(E.D.N.Y. 2001) 11

Singleton v. Wulff, 428 U.S. 106 (1976) 13Skinner v. Salem School District, 718 F. Supp. 2d

186 (D.N.H. 2010) 9> 23Smith v. San Diego State University, No.

04CV0013-BEN(CAB), 2007 WL 1725438(S.D. Cal. June 14, 2007) 18

Smith v. State University of New York, No.1:00-CV1454(FJS/RFT), 2003 WL 1937208(N.D.N.Y. Apr. 23, 2003) H, 23

T>

>f,-i;.*•*--•

XVI


Smith, United States, 508 U.S. 223 (1993) 24Snyder v. Pennsylvania, No. CW. 09-1814, 2010

WL 4362440 (M.D. Pa. Oct. 27, 2010)a „ 990 F3d 511 (7th Cir. 2000) 16Staats v. Sawyer, 220 r.oa on v

<Wne u Pen^syZuania Stote PoZice, .No. 1:09-SCV-0944!2o/o WL 4514326 (M.D. Pa. Nov. 2, ^2010) "'"

aim Center, 269 F. Supp. 2d 152 (W.u.i ^2003) _

Cal. Mar. 29, 2007)

-A;^St-"- 12Jan. 13, 2005)

Tennessee , Lane, 541 U.S. 509 (2004) P—Transportation Workers «°-«*<$

!Z>ansi* Authority, 342 r. ouPF ^(S.D.N.Y. 2004)Tr^ekey v. Selig, ^.f2-72B^U, 2012WL 3245956 (E.D. Art Aug. 8, 20U)

oil v. Camden, 465 U.S. 208 (1984) ••United States, Georgia, U6V.S.15U2006, 32,33

XV11


Velazquez v. Puerto Rico, CIV. 08-1485 (JP),2009 WL 972998 (D.P.R. Apr. 9, 2009) 9

Wagner v. Texas A&M University, 939 R Supp.1297 (S.D. Tex. 1996) U

Wennihan v. Arizona Health Care Cost Containment System, 515 R Supp. 2d 1040 (D.Ariz. 2005) 18

Whitfield v. Tennessee, 639 R3d 253 (6th Cir.2011) 15

Williamson v. Georgia Department ofHuman Resources, 150 R Supp. 2d 1375 (S.D. Ga. 2001) 19, 36

Winfrey v. City of Chicago, 957 R Supp. 1014(N.D. 111. 1997) I6

Winokur v. Office of Court Administration, 190R Supp. 2d 444 (E.D.N.Y 2002) H

Worthington v. City of New Haven, No. 3:94-CV-00609(EBB), 1999 WL 958627 (D. Conn.Oct. 5, 1999) n

Zimmerman v. Oregon Department of Justice,170 R3d 1169 (9th Cir. 1999) passim

Zimmerman v. Oregon Department of Justice,531 U.S. 1189 (2001) 6

Federal Authorities

U.S. Const, amend. IX 1U.S. Const, amend. XI PassimU.S. Const, amend. XTV 1, 31, 32, 33, 35

xvih

TABLE OF AUTHORITIES - Continuedy Page

2929 U.S.C. §794 2542 U.S.C. §121U 2542U.S.C. §12U2 -2i"'2542 U.S.C. §12131 3'2T;23'2542 U.S.C. §12132 ' ^ 2542 U.S.C. §12133 ^ 2542 U.S.C. §12134

Miscellaneous•s. Rep- No. U6, 101st Cong., 1st Sess. 58 ^

(1989)

PERTINENT CONSTITUTIONALPROVISIONS, STATUTES, AND REGULATIONS

In addition to those provided by Petition, the following Constitutional provisions, statutes, and regulations set forth verbatim at Supp. App. 1-3, areinvolved in this case:

U.S. Const, amend. LX.

U.S. Const, amend. XTV.

STATEMENT OF THE CASE

Because this is an appeal from an early stagedismissal based purely on legal grounds, the facts arefairly stated in the procedural history of this actionand brief description of the law at issue.1

A. United States District Court for the WesternDistrict of Oklahoma

Subsequent to her termination of employmentwith Respondent, Petitioner filed her Complaint, andlater an Amended Complaint, in the United StatesDistrict Court for the Western District of Oklahoma,alleging wrongful discharge claims premised, in part,

1 In addition to a general denial of Petitioner's "factualallegations" (Petition, p. 3), Respondent disagrees that suchallegations are supported by the record references cited byPetitioner; however, the allegations are mostly comprised withinthe Amended Complaint, not of record here.

on disability discrimination prohibited by the Americans with Disabilities Act ("ADA"). (App. 1-2, 27-28,and 30-31). Respondent filed its Motion to Dismiss,asserting among other things, its sovereign immunityas to the ADA and state law claims. (App. 1-2, 27-28,and 30-31). Petitioner's Response asked the court todeny the Motion or, in the alternative, grant leave toamend, and asserted for the first time that her ADAclaim was premised on Title II, rather than Title I,and Congress had abrogated the state's EleventhAmendment immunity under Title II. (App. 1-2, 27-28, and 30-31). On Reply Respondent asserted that .Title II does not. reach employment discriminationclaims, and if Title II were applicable, Respondent is

' entitled to immunity. (App. 1-2, 27-28, and 30-31).

The district court granted the Motion to Dismiss,holding in part, "Plaintiff may not bring an employment discrimination suit seeking monetary damagesagainst the [State] under Title II." (App. 33). Havingfound the plain language of the ADA not to include anemployment claim under Title II, the district court,sensibly, did not rule on the immunity defense.

B. United States Court of Appeals for the TenthCircuit

Petitioner appealed the district court's order tothe United States Court of Appeals for the TenthCircuit. Petitioner argued in pertinent part that anemployment discrimination claim may be brought

under Title II of the ADA. (App. 2-3). Respondentobjected to such theory and asserted it is contrary tolegal precedent and statutory construction and interpretation; that neither legislative history, legislativecomparisons, nor the implementing regulations support or validate the theory; and the Eleventh Amendment would be a bar in any event. (App. 3-26).

After oral argument before a three-judge panel,the Tenth Circuit entered its opinion affirming thedistrict court's dismissal, "[b]ecause Title II does notcontain an independent cause of action for employment discrimination " (App. 1 and 26).

C. Title II of the Americans with DisabilitiesAct

The operative provision ofTitle II states:

Subject to the provisions of this subchapter,no qualified individual with a disability shall,by reason of such disability, be excluded fromparticipation in or be denied the benefits ofthe services, programs, or activities ofa public entity, or be subjected to discrimination byany such entity.

42 U.S.C. §12132. The issue that has slowly resolveditself over time is whether this language includesemployment discrimination. Prior to the Tenth Circuit's ruling, the question directly on point was suspended in a one-to-one circuit split between theexpress rulings of the Ninth and Eleventh Circuits.

Like the Tenth Circuit did recently, the NinthCircuit previously determined that Title II of theADA does not cover employment discrimination. SeeZimmerman v. Or. Dep't of Justice, 170 R3d 1169,1178 (9th Cir. 1999) ("when viewed as a whole, thetext, context and structure of the ADA show unambiguously that Congress did not intend for Title II toapply to employment"). The Eleventh Circuit, on theother hand, determined in the preceding year thatTitle II of the ADA reaches employment discrimination. See Bledsoe v. Palm Beach Cnty. Soil & WaterConservation Dist, 133 R3d 816 (11th Cir. 1998).

Petitioner argues that the tension between thefifteen-year-old ruling of Bledsoe and that of theTenth Circuit here is cause for this Court's intervention. Respondent submits the Court should, and hasalready in the Ninth Circuit case of Zimmerman, rejected this misplaced invitation.

REASONS FOR DENYING THE

PETITION FOR WRIT OF CERTIORARI

I. PETITIONER MISSTATES THE NATIONALLANDSCAPE OF JUDICIAL RECOGNITION OF THE SETTLED LAW.

The Petition can be fairly summarized as requesting this Court's review because Petitionerdisagrees with the underlying Circuit opinion, itsreliance on Zimmerman, and its rejection of Bledsoe.

In support of her theories of error as to the TenthCircuit's interpretation of Title II of the ADA as notextending to cover employment discrimination, Petitioner principally relies on the existence of a circuitcourt split on the topic and the purported harm tocertain geographically situated public employees dueto the potential inconsistent rulings in different circuits. Despite disagreement of one circuit in oneopinion, Title II does not, and was never intended to,cover employment.

In the first federal circuit court opinion to everaddress the issue, the Eleventh Circuit Court ofAppeals held that individuals could assert claims ofdisability-related employment discrimination underTitle II. See Bledsoe, 133 R3d 816. Approximatelyone year later and with the benefit of the EleventhCircuit's opinion and reasoning, along with a surveyof federal district court opinions on the issue, theNinth Circuit Court ofAppeals held that individualscould not assert claims of disability-related employment discrimination under Title II, as inter aliaCongress did not intend the breadth of Title II toextend to employment. See Zimmerman, 170 R3d1169.

The Zimmerman plaintiff sought this Court'sreview for reasons identical to those Petitioner hasstated. On August 10, 1999, Zimmerman filed hisPetition for Writ of Certiorari with a single questionpresented: "Whether Title II of the ADA reachesemployment discrimination?" 1999 WL 33632988.After the state's brief in opposition was filed,

6

Zimmerman filed a reply briefand two supplementalbriefs; however, the Court denied the petition. SeeZimmerman v. Or. Dep't of Justice, 531 U.S. 1189(2001).

The difference of opinion between the Eleventhand Ninth Circuits, ofwhich this Court was certainlyaware, continued for nearly fourteen years before theTenth Circuit Court officially weighed in on the issue.In Elwell v. Oklahoma ex rel. Board ofRegents oftheUniversity of Oklahoma, 693 R3d 1303 (10th Cir.2012) the Tenth Circuit joined the majority of federalcourts by holding Title I is the exclusive province of.employment discrimination within the ADA andrefusing to read coverage for employment discrimination claims into the scope ofTitle II. The fact that onecircuit court reached an incorrect result fifteen yearsago hardly rises to the level of importance deservingofthis Court's attention - a point well taken from theCourt's denial of certiorari (on the identical issueposed here) when the circuit split arose with theZimmerman ruling, well over a decade ago. The

•\ Bledsoe opinion is an outlier. Even the federal district| courts within the Eleventh Circuit and bound byI Bledsoe have found a way to avoid its holding by

dismissing Title II employment discrimination claimspursuant to sovereign immunity.

Angling for sympathy toward the claimants thatmight be subjected to inconsistent rulings based upongeographical location is likewise unavailing. Contraryto Petitioner's invitation to consider otherwise, theonly parties being denied protection under the

prevailing interpretation of Title II are those claimants seeking relief under the wrong title of the ADA.In the event other courts are still getting it wrong,which very few are, the injured party is the publicdefendant, not the claimant. If a court permits adisability-based employment claim to proceed againsta state under Title II of the ADA, it is likely due onlyto the failure ofthe public employer to raise relevantdefenses, such as the inapplicability of Title II and/orEleventh Amendment immunity. An extensive searchof the case law on the specific and related topicsreveals little, if any, indication of erroneous courtrulings where the employer raises and preserves thenecessary defenses. There is no evidence that publicemployees are somehow being deprived of a right towhich they are lawfully entitled.

The common thread binding the claimants whohave argued for a fallacious interpretation of Title IIis that each was legally barred from asserting anemployment claim under Title I. The Bledsoe plaintifforiginally filed suit under Title I, but amended toallege a Title II claim after learning the Title I claimcould not be maintained due to the 15-employeerequirement. See 133 R3d at 818. The Zimmermanplaintiff failed to timely exhaust his administrativeremedies through the EEOC, so he sought to avoidthe Title I bar by pressing his claim under Title II.See 170 R3d at 1172. The Elwell plaintiff (Petitionerhere) expressed the intent to assert a Title II claimonly after Respondent filed for dismissal asserting itsentitlement to sovereign immunity regarding Title I

8

claims See Elwell v. Oklahoma ex rel. Bd. of Regensof the Univ. of Okla. 2011 WL 560455 (WD. Okla.Reb. 8). Having the benefit of certain law in front ofher, Petitioner recast her Title I claim as one underTitle II. See id., at *l-2. As confirmed by the majorityof federal court opinions on this topic,2 Title II wasnot enacted to be the default for employment claimsbarred by Title I.

A. The Circuit and Federal District Courts

While courts within every circuit have commented on the issue, only the Ninth, Tenth, andEleventh Circuits have expressly decided it. Contraryto Petitioner's assertion, the Third, Fifth, and SixthCircuits have indicated Title II does not cover employment. The remaining circuit courts have offeredno opinion or indication. The national landscape isempirically as follows:

First Circuit

The First Circuit has declined to rule on theissue. See, e.g., Sepulveda-Villarini v. Dep't ofEduc. of

2Recognizing the provision of Fed. R. App. P. 32.1 and thevarying rules of the federal courts as to citation of their unpublished opinions, Respondent cites the unpublished opinionsto illustrate the national trend on the primary issues. Furtherseveral of the unpublished dispositions are supported by thoroughand well-reasoned analysis that perhaps, while not of precedentialvalue, could be utilized as an aid inthis Court's analysis.

9

JPJR., 628 R3d 25, 27-29 (2010) (issue not properlypresented on appeal); Carmona-Rivera v. Puerto Rico,464 R3d 14, 17 (2006) (recognizing, but not resolving,a disagreement among the courts in the circuit);Currie v. Grp. Ins. Comm'n, 290 R3d 1, 9-13 (2002)(declining to rule on federal issues). The majority offederal district courts within the First Circuit haverefused to allow Title II employment claims.3

Second Circuit

The Second Circuit has likewise declined to ruleon the issue. See Olson v. New York, 315 R Appx.361, 364 (2d Cir. 2009); Perry v. State Ins. Fund, 83RAppx. 351, 354, n.l (2d Cir. 2003); Mullen v.Rieckhoff, 1999 WL 568040, *1 (2d Cir. July 22, 1999).Petitioner's reliance on McElwee v. County of Orange,700 R3d 635 (2dCir. 2012), is misplaced, as that courtwas not tasked with considering, nor did it consider,whether Title II does or should cover employment.

3See, e.g., Sanchez-Arroyo v. Dep't of Educ. of P.R., 842F Supp 2d 416, 432-33 (D.P.R. 2012); Medina-Medina v. PuertoRico, 769 F. Supp. 2d 77, 80 (D.P.R. 2011); Velazquez v. PuertoRico, 2009 WL 972998, *6 (D.P.R. Apr. 9) (overruled on othergrounds); Mendez Vazquez v. Tribunal General de Justicia, AllF. Supp. 2d 406, 411-12 (D.P.R. 2007); Melendez Gonzalez v.Oficina de Administracion de Los Tribunales, 218 F. Supp. 2d227, 229 (D.P.R. 2002); Currie v. Grp. Ins. Comm'n, 147F. SupP- 2d 30, 34-36 (D. Mass. 2001); Motzkin v. Trs. ofBostonUniv 938 F. Supp. 983, 996 (D. Mass. 1996); but see Skinner v.Salem Sch. Dist, 718 F. Supp. 2d 186, 191-92 (D.N.H. 2010);Downs v. Mass. Bay Trans. Auth., 13 F. Supp. 2d 130, 134-36 (D.Mass. 1998).

10

Expressly recognizing "Title I of the ADA . . . governsemployment discrimination," the court used the lawthereunder as a reference since the volunteer positionwas "analogous" to an employment situation. Id. at640, n.2. Petitioner's continued reliance on InnovativeHealth v. City of White Plains, 117 F.3d 37 (2d Cir.1997), is unhelpful. It is the Bledsoe court's initialmisinterpretation and overextension of the Innovativeholding that lead to the incorrect Bledsoe ruling in1998 and ever cast doubt on the question presentedhere. Since the Innovative Health opinion was issued,the Second Circuit has not given it the liberal extension urged by Petitioner. See Circuit Cases, supra. Ineach case, the court recognized that the questionremained unresolved, demonstrating that InnovativeHealth is neither conclusive nor even significantlyinformative on the issue here.

The majority of federal district courts within theSecond Circuit have refused to allow Title II employment claims (at least fifteen such opinions came afterthe ruling in Innovative Health)?

4 See, e.g., Shortell v. Office of Court Admin., 2012 WL3230492, *1 (E.D.N.Y. Aug. 6); Benny v. New York State, 842F. Supp. 2d 530, 550 (S.D.N.Y. 2012); Gallagher v. Town ofFairfield, 2011 WL 3563160, *3 (D. Conn. Aug. 15); Reddick v. S.Conn. State Univ., 2011 WL 1833288, *3 (D. Conn. May 12);Mary Jo C. v. NY. State & Local Ret, 2011 WL 1748572, *12(E.D.N.Y. May 5); Emmons v. City Univ. ofN.Y., 715 F. Supp. 2d394, 408 (E.D.N.Y. 2010); Brown v. Connecticut, 2010 WL2220580, *18-20 (D. Conn. May 27, 2010); Scherman v. N.Y.State Banking Dep't, 2010 WL 997378, *8-9 (S.D.N.Y. Mar. 19);

(Continued on following page)

11

Third Circuit

Although not addressing the dichotomy betweenTitles I and II, the Third Circuit has unequivocallystated that Title I is the sole provision of the ADAthat covers employment-related actions. See Menkowitzv. Pottstown Mem'l Med. Ctr., 154 R3d 113, 118-19 (3dCir. 1998) (stating, after a thorough review oflegislative history and congressional intent, "it is evident

Chiesa v. N.Y. State Dep't of Labor, 638 F. Supp. 2d 316, 321(N.D.N.Y. 2009); Melrose v. NY. State Dep't ofHealth, 2009 WL211029, *9 (S.D.N.Y. Jan. 26); Fleming v. State Univ. ofNY.,502 F Supp. 2d 324, 333-34 (E.D.N.Y. 2007); Ayantola v. Cmty.Technical Colls, of Conn. Bd. of Trs., 2007 WL 963178,*2 (D.Conn. Mar. 30); Cormier v. City ofMeriden, 2004 WL 2377079,*8 (D. Conn. Sept. 30); Sworn v. W. N.Y. Children's PsychiatricCtr 269 F. Supp. 2d 152, 157-58 (W.D.N.Y. 2003); Filush v.Weston, 266 F. Supp. 2d 322, 330-31 (D. Conn. 2003); Sykenv New York, 2003 WL 1787250, *7 (S.D.N.Y. Apr. 2); but seeCradle-Brown v. Dep't of Children, 2009 WL 1097961,*6 (D.Conn. Apr. 21) (vacated on other grounds); Olson v. New York,2005 WL 5885368, *5 (E.D.N.Y. Mar. 9); Blumberg v. NassauHealth Care Corp., 378 F. Supp. 2d 122, 125 (E.D.N.Y. 2005);Coleman v. Town of Old Saybrook, 2004 WL 936174, *3 (D.Conn. Apr. 28); Transp. Workers Union v. N.Y. City TransitAuth., 342 F. Supp. 2d 160, 175 (S.D.N.Y. 2004); Smith v. StateUniv 'ofN Y., 2003 WL 1937208, *8 (N.D.N.Y. Apr. 23); Bloom v.New York City Bd. of Educ, 2003 WL 1740528, *11 (S.D.N.Y.Apr. 2); Winokur v. Office ofCourt Admin., 190 F. Supp. 2d 444,449 (E.D.N.Y. 2002); Simms v. City ofNew York, 160 F. Supp. 2d398, 400 n.l (E.D.N.Y. 2001); Worthington v. City ofNew Haven,1999 WL 958627, *1 (D. Conn. Oct. 5); MaGee v. Nassau Cnty.Med. Ctr., 27 F. Supp. 2d 154, 159 (E.D.N.Y. 1998); Rome v.MTA1N.Y.C. Transit, 1997 WL 1048908, *5 (E.D.N.Y. Nov. 18);Hernandez v. Hartford, 959 F. Supp. 125, 133 (D. Conn. 1997);Finley v. Giacobbe, 827 F. Supp. 215, 219 (S.D.N.Y. 1993).

12

that Congress sought to regulate disability discrimination in the area of employment exclusively throughTitle I. . . .").

The majority of federal district courts within theThird Circuit have refused to allow Title II employment claims, and all courts therein' have refused toallow such claims since the Circuit Court ruled inMenkowitz.5

Fourth Circuit

Extensive search did not reveal an instancewhere the Fourth Circuit Court of Appeals has beenfaced with determining the present issue. Like others

5 See, e.g., Karam v. Del. Div. ofServ. for Children, Youth &Their Families, 2010 WL 5343182, *3, n.l (D. Del. Dec. 15);Stine v. Pa. State Police, 2010WL4514326, *5(M.D. Pa. Nov. 2);Snyder v. Pennsylvania, 2010 WL 4362440, *7 (M.D. Pa. Oct.27); Hemby-Grubb v. Indiana Univ. ofPa., 2008 WL 4372937, *7(W.D. Pa. Sept. 22); Pa. State Troopers Ass'n v. Pennsylvania,2007 WL 853958, *6-8 (M.D. Pa. Mar. 20); Russo v. Ryerson,2006 WL 477006, *19-20 (D.N.J. Feb. 28); McSherry v. Dep't ofLabor &Ind., 2006 WL 463157, *7-12 (M.D. Pa. Feb. 23); Tawesv. Frankford Volunteer Fire Co., 2005 WL 83784, *6-7 (D. Del.Jan. 13); Nelson v. Pa. Dep't of Pub. Welfare, 244 F. Supp. 2d382, 389 (E.D. Pa. 2002); Ayoub v. Pa. Dep't of Pub. Welfare,2002 WL 31778801 (E.D. Pa. Dec. 12);Koslow v. Pennsylvania,158 F. Supp. 2d 539, 542 (E.D. Pa. 2001) (overruled on othergrounds); but see Bracciale v. City of Philadelphia, 1997 WL672263, *7-8 (E.D. Pa. Oct. 29); Motto v. City ofUnion City, 1997WL 816509, *8 (D.N.J Aug. 27); Benedum v. Franklin RecyclingCtr., 1996 WL 679402, *5 (W.D. Pa. Sept. 12); Bruton v. Se. Pa.Tra'nsp. Auth., 1994 WL 470277, at*2 (E.D. Pa. Aug. 19).

13

before her, Petitioner erroneously cites Doe v. Univ. ofMaryland Medical System Corp., 50 R3d 1261, 1262-63 (4th Cir. 1995), an opinion centering on the decision of a university medical center to terminate anHrV positive surgical training resident, as supportiveof her position. In Doe, the Fourth Circuit Court wasnot faced with the issue present here, however, and tooffer this decision as even assuming Title II applies toemployment actions is a stretch.

Just as the Fourth Circuit Court of Appeals hasnot had occasion to actually decide the issue, neitherhave the federal district courts within that circuit.

6 Petitioner's reliance on numerous decisions where courtshave "assumed" Title II covers employment claims is misplaced,as such decisions have no persuasive value. Except in extraordinary circumstances, courts are generally precluded from suasponte deciding a non-jurisdictional issue unless it was properlypreserved for appeal. See, e.g., Singleton v. Wulff, 428 U.S. 106,120 (1976) (recognizing the general rule that "a federal appellatecourt does not consider an issue not passed upon below").Because the issue of whether Title II extends to employment isnot a jurisdictional issue, courts do not raise it when the defendant fails to do so. Thus, the fact that Title II employmentclaims have been allowed to proceed when no objection wasmade as to Title IPs applicability is irrelevant to the presentaction. Assuming without deciding does not create a precedent,and "it is quite clear that unexamined assumptions do not bindthis Court." Harper v. Va. Dep't of Taxation, 509 U.S. 86, 119(1993) (citation omitted).

7 See, e.g., Sarkissian v. W.V Bd. of Governors, 2007 WL1308978, *5-8 (N.D.W.V. May 3) (assuming without decidingextension of Title II); Allen v. Hamm, 2006 WL 436054, *5 (D.Md. Feb. 22) (assuming without deciding extension of Title II


14

Fifth Circuit

The Fifth Circuit's only opportunity to addressthe issue makes clear its position on refusing toextend Title II to cover employment claims. SeeDecker v. Univ. of Houston, 159 R3d 1355 (5th Cir.1998), aff'g Decker v. Univ. ofHouston, 970 RSupp.575, 578-79 (S.D. Tex. 1997) ("a careful reading of thestatute makes plain that employment decisions areexcluded from Title IPs coverage") (declined to extendand specifically denounced Wagner v. Tex. A&MUniv., 939 R Supp. 1297, 1308-10 (S.D. Tex. 1996),the only district court case found to have extendedTitle II to employment). An extensive search did notreveal any additional federal district court opinionson the topic.

Petitioner erroneously cites in her favor the FifthCircuit decision ofHolmes v. Texas A&M Univ., a casewhere the court considered the termination of atenured professor who brought suit under Title II.138 R3d 168 (1998), opinion withdrawn andsuperceded, 145 R3d 681 (1998). But, in Holmes thedefendant failed to assert the non-applicability ofTitle II, instead focusing solely on an expired statuteoflimitations for state law personal injury actions. Id.at 171. While the decision has been cited by othercourts as "applying] Title II to employment discrimination claims without question," Downs v. Mass. Bay

and dismissing claim on other grounds); Rogers v. Dep't ofHealth, 985 F. Supp. 635, 637 (D.S.C. 1997) (action regardingaccess to long-term disability employee benefit program).

15

Transp. Auth., 13 R Supp. 2d 130, 135 (D. Mass.1998), the Holmes court never weighed the applicability of Title II. Rather, it assumed the two-year personal injury limitations period applied to claimsunder Title II, rejected plaintiff's equitable tollingargument, and dismissed the action on expired limitations grounds. See 138 R3d at 171-73; 145 R3d at683-85.

Sixth Circuit

Never having directly ruled on the issue (seeWhitfield v. Tennessee, 639 R3d 253, 258 (2011)), theSixth Circuit has unequivocally stated that Title I isthe sole provision of the ADA covering employment-related actions. See Parker v. Metro. Life Ins. Co., 121R3d 1006, 1014 (6th Cir. 1997) (although not addressing the dichotomy between Titles I and II, holding"the statutory framework of the ADA expressly limitsdiscrimination in employment practices to Title I ofthe ADA"); see also Hagood v. Metro. Gov't of Nashville, 176 F. Appx. 660, *1 (6th Cir. 2006) (affirmingdistrict court conclusion that the binding precedent ofthe circuit holds that employment discriminationclaims are exclusively the province of Title I, and theplaintiff, therefore, could not bring his claim underTitle II), cert, denied, 549 U.S. 1114 (2007). Since theruling in Parker, all federal district courts within the

16

Sixth Circuit have refused to allow Title II employment claims.

Seventh Circuit

The Seventh Circuit has never ruled on the issue.See Staats v. Sawyer, 220 R3d 511, 518 (2000). Themajority of federal district courts within the SecondCircuit have refused to allow Title II employmentclaims.9

8See, e.g., Richardson v. Dayton Pub. Sch., 2010 WL1882306 *3 (S.D. Ohio April 23); but see Eisfelder v. Mich. Dep'tofNatural Res., 847 F. Supp. 78, 83 (W.D. Mich. 1997).

9See, e.g., Maxwell v. South Bend Work Release Ctr., 787F. Supp. 2d 819, 822-27 (N.D. Ind. 2011) ("In sum, the languageofTitle II and the structure ofthe ADA as a whole lead to theconclusion that Congress unambiguously did not intend for TitleII to reach employment discrimination - that's what Title I wasfor."); Canfield v. Isaacs, 523 F. Supp. 2d 885, 891-92 (N.D. Ind.2007)- Brettler v. Purdue Univ., 408 F. Supp. 2d 640, 653-60(N.D. Ind. 2006); Clark v. City ofChicago, 2000 WL 875422, *3-7(N.D. 111. June 28); Patterson v. III., Dep't ofCorr., 35 F. Supp. 2d1103 1107-10 (CD. 111. 1999); but see Jackson v. City ofChicago,215 F Supp. 2d 975, 977 (N.D. 111. 2002); Gilbert v. City of St.Charles, 1999 WL 182151, *4-5 (N.D. 111. Mar. 24); Winfrey v.City of Chicago, 957 F. Supp. 1014, 1021-23 (N.D. 111. 1997); Silkv City of Chicago, 1996 WL 312074, *10 (N.D. 111. June 7); Dertzv. City of Chicago, 912 F. Supp. 319, 324-25 (N.D. 111. 1995); Doev. County of Milwaukee, 871 F. Supp. 1072, 1074-76 (E.D Wis.1995)- Barry v. City of Madison, 1994 WL 593920, *2 (W.D.Wis.);'Peterson v. Univ. of Wis., 818 F. Supp. 1276, 1278 (W.D.Wis. 1993).

17

Eighth Circuit

The Eighth Circuit Court of Appeals has not hadthe occasion to rule on this issue. But, the only federal district court within the circuit that has ruled sinceGarrett10 refused to allow employment claims underTitle II.11

Ninth Circuit

Petitioner erroneously relies on Rios v. Cate,2010 WL 5788967, *3 (S.D. Cal. Dec. 30) for hertheory that Zimmerman has been questioned in recent years.12 In Rios, however, the court did not distinguish or depart from Zimmerman in holding thatprison inmates are not to be considered "employees"under the ADA, because the benefit of the prison industry authority is to operate a work program for

10 Bd. ofTrustees ofthe Univ. ofAla. v. Garrett, 531 U.S. 356(2001).

11 See Trickey v. Selig, 2012 WL 3245956, *1 (E.D. Ark. Aug.8); but see Dominguez v. City ofCouncil Bluffs, 91A F. Supp. 732,736 (S.D. Iowa 1997) (acknowledging it was following themajority view - at the time).

12 Where erroneously citing to Lane, infra, for the Garrettdisposition (Petition, p. 13), Petitioner seems to argue Lane (orperhaps Garrett) abrogated Zimmerman or at least removed aground upon which that court relied for its determination. Evenif such concept were factually possible, the later determinationthat Title I is unconstitutional has no bearing on the statutoryinterpretation of the intended scope of coverage for Title I orTitle II.

18

inmates; thereby allowing an inmate program participant to carry a Title II claim. Distinguishing its factsfrom an employment claim action, the Rios courtspecifically stated, "it is true that Title I and not TitleII applies to employment situations." Id.

In additional contrast to Petitioner's theory, theNinth Circuit Court ofAppeals and all federal districtcourts therein have adhered without complaint to theteachings ofZimmerman.13

13 See, e.g., Circuit opinions: Atwell v. City ofSurprise, 440F.Appx. 585, 586 (2011); Brown v. City ofLos Angeles, 521 F.3d1238, 1241 (2008); Holm v. Wash. State Penitentiary, 19 F.Appx. *704 705 (2001); Denton v. Arizona, 12 F.Appx. 553, 554 (2001);Mallen v. City of Sierra Madre, 246 F.3d 674 (2000); Lewie v.Cal. Dep't ofRehab., 205 F.3d 1351 (1999); Martin v. Office ofPub. Defender, 185 F.3d 868 (1999); and Zimmerman, 170 F.3dat 1171-78; federal district court opinions: Motoyama v. Haw.Dep't of Transp., 864 F. Supp. 2d 965, 986 (D. Haw. 2012);O'Haire v. Napa State Hosp., 2012 WL 762076, *11 (N.D. Cal.Mar. 8); Conwright v. City of Oakland, 2010 WL 3515741, *3(N.D. Cal. Sept. 8); Alcala v. Cal. Dep't of Transp., 2010 WL2975815, *2 (N.D. Cal. July 26); Nehara v. California, 2010 WL2822850^ *5 (E.D. Cal. July 16); Bromley v. Wash. DSHS/ADSA,2008 WL 5348208, *1 (W.D. Wash. Dec. 17); Coleman v. City ofTucson, 2008 WL 5134346, *7 (D. Ariz. Dec. 5); Ostrofsky v.Sauer, 2007 WL 4210057, *2 (E.D. Cal. Nov. 27); Holley v. Carey,2007 WL 2533926, *6 (E.D. Cal. Aug. 31) (overruled on othergrounds); Smith v. San Diego State Univ., 2007 WL 1725438, *2(S D Cal. June 14); Tan v. Univ. ofCal. SF, 2007 WL 963222, *5(N.D. Cal. Mar. 29); Garcia v. Adams, 2007 WL 570217, *3 (E.D.Cal. Feb. 21); Davenport v. Idaho Dep't ofEnvtl. Quality, 469 F.Supp 2d 861, 870 (D. Idaho 2006) (overruled on other grounds);Brown v. Dep't of Soc. &Health Servs., 2006 WL 3254501, *3(W D. Wash. Nov. 9); Lightsy v. Hawaii, 2006 WL 314335, *5-6(D. Haw. Feb. 7); Wennihan v. AHCCCS, 515 F. Supp. 2d 1040,


19

Tenth Circuit

In accord with the federal district court decisions

preceding it,14 the Tenth Circuit Court of Appeals inthe case at issue correctly declined to extend Title IIto cover employment claims. See Elwell, 693 R3d at1305-14.

Eleventh Circuit

While the Eleventh Circuit (presumably becauseit has not had the opportunity) has not overturned itsdecision in Bledsoe, many of the federal district courtswithin the Eleventh Circuit have begrudgingly adhered to Bledsoe while nevertheless defeating suchextension of Title II through dismissal of the claimsbecause of sovereign immunity. All federal districtcourts sitting in the circuit to address the EleventhAmendment immunity for Title II employment claimssince Bledsoe have dismissed the claim on such

grounds.15

1047 (D. Ariz. 2005); Allen v. SaifCorp., 2005 WL 708402, *2 (D.Or. Mar. 29).

14 See Elwell, 2011 WL 560455, *3 (W.D. Okla. Feb. 8,2011); Miller v. Kansas, 2010 WL 497651, *1 (D. Kan. Feb. 5);and Osborne v. Okla. Emp't Sec. Comm'n, 2006 WL 2090089, *3(W.D. Okla. July 2.5).

15 See Marsh v. Ga. Dep't of Behavioral & Health Developmental Disabilities, 2011 WL 806423, *4, n.ll (S.D. Ga. Feb. 14);Clifton v. Ga. Merit Sys., 478 F. Supp. 2d 1356, 1366, 1368 (N.D.Ga. 2007); Leverette v. Ala. Revenue Dep't, 453 F. Supp. 2d 1340,1345 (M.D. Ala. 2006); Williamson v. Ga. Dep't of Human Res.,


20

District of Columbia Circuit

Although this topic is not expected to arise often,if at all, within the District of Columbia, the CircuitCourt there recognizes what is clear from the framework of the ADA and this Court's rulings in bothLane, infra, and Garrett - Title I prohibits employment discrimination, while Title II prohibits discrimination against the disabled in public services, pro-programs, and activities. See Barbour v. Wash. Metro.Area Transit Auth., 374 R3d 1161, 1176 (D.C. Cir.2004) (Sentelle, C.J., dissenting) ("Title I concernsdiscriminating against the disabled in employment;Lane, in contrast, involved Title II, which prohibitsdiscrimination against the disabled in public services,programs, and activities").

B. The Supreme Court of the UnitedStates

Petitioner claims that prohibiting an employmentclaim from proceeding under Title II, coupled with theEleventhAmendment immunity for claims under TitleI, denies disabled public employees any recourse under the ADA for discriminatory employment practices.

150 F Supp. 2d 1375, 1379-82 (S.D. Ga. 2001); see also King v.Clarke County, Ala., 2012 WL 5287040, *7, n.2 (S.D. Ala. Sept.27 2012) (not faced with an immunity argument, the courtstated, "it is not for this Court to inform the Eleventh Circuitthat it got it wrong inBledsoe "), citing Clifton, supra.

21

This argument is neither relevant nor valid. In rulingthere is no valid abrogation of the states' EleventhAmendment immunity under Title I, the Court inGarrett pointed out that the States are still subject tothe standards ofTitle I, which "can be enforced by theUnited States for money damages, as well as byprivate individuals in actions for injunctive relief. . . .In addition, state laws protecting the rights of persons with disabilities in employment . .. provideindependent avenues ofredress." Garrett, 531 U.S. at374.16 Noticeably absent from the Court's alternativeto Title I for disability-related employment claims isany referral to Title II.

In Garrett, the Court recognized the split between the Ninth and Eleventh Circuits on the issueof Title IPs coverage of employment (at n.l), andthree years later in Tennessee v. Lane, stated:

[T]he ADA . . . forbids discrimination againstpersons with disabilities in three major areasof public life: employment, which is covered by Title I of the statute; public services, programs, and activities, which are thesubject of Title II; and public accommodations, which are covered by Title III. Title II,§§ 12131-12134, prohibits any public entityfrom discriminating against 'qualified' persons with disabilities in the provision or

16 Throughout the Petition, Petitioner erroneously cites toLane as the decisional authority on this topic. (Petition, pp. 4, 6,and 13).

22

operation of public services, programs, or activities.

541 U.S. 509, 516-17 (2004) (emphasis added). TheCourt also announced that "[i]t is not difficult to perceive the harm that Title II is designed to address.Congress enacted Title II against a backdrop of pervasive unequal treatment in the administration ofstate services and programs, including systematicdeprivations of fundamental rights." Id. at 524. Inidentifying the multitude of harms to be addressed byTitle II, the Court detailed eight footnotes with stringcitations covering the administration ofa wide rangeof public services, programs, and activities, such*as voting, marrying, jury service, zoning decisions,and the administration ofjustice. Id. at 524-25, n.5-13. Notably absent from the Court's thorough andthoughtful analysis is any mention of employment.

Circuit and federal district courts have readGarrett as this Court's aversion to hold Title II's scopeinclusive of employment actions.

17 See, e.g., Popovich v. Cuyahoga Cnty. Court, 276 F.3d808 813 (6th Cir. 2002) (recapping Supreme Court's ruling mGarrett: "It concluded that Title II, dealing with 'services, programs, or activities of a public entity,' rather than employment'has somewhat different remedial provisions from Title I'... . )(emphasis added); Diaz v. Dep't of Educ, 2011 WL 4625983(DPR Sept. 30); Gallagher v. Town of Fairfield, 2011 WL3563160 (D. Conn. Aug. 15); Reddick v. S. Conn. State Univ2011 WL 1833288 (D. Conn. May 12); Mary Jo C. v. N.Y. State &Local Ret. Sys., 2011 WL 1748572 (E.D.N.Y. May 5); Maxwell vS. Bend Work Release Ctr., 2011 WL 1402883 (N.D. Ind. April


23

II. THE COURT BELOW CORRECTLY APPLIED THE SETTLED LAW.

A. The Statute Is Not Ambiguous.

Subject to the provisions of this subchapter,no qualified individual with a disability shall,by reason ofsuch disability, be excluded fromparticipation in or be denied the benefits ofthe services, programs, or activities of a public entity, or be subjected to discrimination byany such entity.

42 U.S.C. § 12132.

Petitioner contends the Tenth Circuit erred bynot finding the second clause, "discrimination by anysuch entity" is a "catch-all" encompassing all claimsregardless ofcontext. The wording ofTitle II calls forthe application of "the maxim ejusdem generis, thestatutory canon that where general words follow specific words in a statutory enumeration, the general

13); Skinner v. Salem Sch. Dist, 718 F. Supp. 2d 186 (D.N.H.2010); Brown v. Connecticut, 2010 WL 2220580 (D. Conn. May27); Scherman v. N.Y. State Banking Dep't, 2010 WL 997378(S.D.N.Y. Mar. 19); Melrose v. N.Y. State Dep't of Health, 2009WL 211029 (S.D.N.Y. Jan. 26); Fleming v. State Univ. of N.Y,502 F. Supp. 2d 324 (E.D.N.Y. 2007); Canfield v. Isaacs, 523F. Supp. 2d 885 (N.D. Ind. 2007); Clifton v. Ga. Merit Sys., 478F. Supp. 2d 1356 (N.D. Ga. 2007); Smith v. State Univ. ofNY,2003 WL 1937208 (N.D.N.Y. Apr. 23); Syken v. New York, 2003WL 1787250 (S.D.N.Y. Apr. 2); Nelson v. Pa. Dep't of Pub.Welfare, 244 F. Supp. 2d 382 (E.D. Pa. 2002); Ayoub v. Pa. Dep'tof Pub. Welfare, 2002 WL 31778801, *1 n.3 (E.D. Pa. 2002);Currie v. Grp. Ins. Comm'n, 147 F. Supp. 2d 30(D. Mass. 2001).

24

words are construed to embrace only objects similarin nature to those objects enumerated by the preceding specific words." See Circuit City Stores, Inc. v.Adams, 532 U.S. 105, 114-15 (2001) (citing referencesand internal quotations omitted). Under this rule ofconstruction the residual clause should be read togive effect to the more specific preceding terms "andshould itself be controlled and defined by reference tothe enumerated categories . . . which are recited justbefore it " See id.

The Tenth and Ninth Circuit Courts have determined that employment is plainly not a "service,program, or activity" of a public entity contemplated 'under Title II. Petitioner claims such holding iswithout legal support. Defining the terms, "services,""programs," or "activities" to include employment,however, distorts the ordinary meanings of thosewords. See Smith v. United States, 508 U.S. 223, 228(1993) ("When a word is not defined by statute, wenormally construe it in accord with its ordinary ornatural meaning"). The Ninth and Tenth Circuits andseveral other courts concluded that "services, programs, or activities" refers to a public entity's "outputs," whereas employment is best understood as an"input." See App. 4-8; Zimmerman, 170 R3d at 1174-76; Filush, 266 RSupp.2d at 328-29; Cormier v. CityofMeriden, 2004 WL 2377079, *3; see also Brettler v.Purdue Univ., 408 F.Supp.2d 640, 655-56 (N.D. Ind.2006).

The Court cautions against the piecemeal analysis as urged by Petitioner and rejected by the Tenth

25

Circuit. Dada v. Mukasey, 554 U.S. 1, 16 (2008) ("Inreading a statute [the Court] must not look merely toa particular clause . . . [and] must not be guided by asingle sentence or member of a sentence, but look tothe provisions of the whole law and to its objects andpolicy") (internal citations and quotations marksomitted). Looking to the ADA as a whole rendersPetitioner's position even more untenable. There isan overwhelming number of clear textual indicatorsthat within the ADA employment claims are exclusively covered under Title I. To begin, there is thespecific inclusion of employment terminology in TitleI and its specific omission from Title II. Cf, 42 U.S.C.§§ 12111-12112, and 12131-12134. In declining to ruleon the applicability ofTitle II to employment claimsin Garrett, the Court carefully noted that "whereCongress includes particular language in one sectionof a statute but omits it in another section of thesame Act, it is generally presumed that Congress actsintentionally and purposely in the disparate inclusionor exclusion." Id. at 360, quoting Russello v. UnitedStates, 464 U.S. 16, 23 (1983).

Given Title I's comprehensive employment provisions, the Court should interpret Title II's silence onthe subject is presumably an intentional and deliberate Congressional choice, not an error in need ofcorrection. See Fourco Glass Co. v. Transmirra Prods.Corp., 353 U.S. 222, 228 (1957) ("However inclusivemay be the general language of a statute, it will notbe held to apply to a matter specifically dealt with inanother part of the same enactment.") (internal

26

quotation marks omitted). The differences in whichCongress defined a qualified individual for protectionwithin each Title is also of great import and instructon this topic. (App. 9-10).

While the text alone is enough, titles and headings of a statute are also instructive when determining the meaning of a statute. See Almendarez-Torresv. United States, 523 U.S. 224, 234 (1998); (App. 10-13). Notably, the ADA contains five titles with thepertinent headings: Employment (Title I) and PublicServices (Title II).

There are also abundant non-textual cues thattTitle II was not intended to cover employment. Of buta few examples are: Titles I and II were enacted bythe same Congress on the same day, indicating astrong presumption against overlap between two explicit frameworks. While Title I was left to be interpreted by the EEOC, the agency that administersmost federal employment-related statutes, Title II'sregulatory authority was delegated to the AttorneyGeneral.

If the Court were to accept Petitioner's invitationto expand the law of Title II, it would render theunintended and impractical results of allowing employment claims to proceed under both titles; permitting public employees multiple avenues by which tobring claims, while allowing private employees onlythe procedures provided under Title I; enforcing strictadministrative prerequisites on private employeeswhile allowing public employees to go straight to the

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courts; giving victims of public employment disabilitydiscrimination the benefit of a longer statute of limitations; allowing private employers more protectionand available defenses than public employers; andallowing unlimited damages against a state in an employment claim, when the state has limited resourcesand is funded by taxpayers.

It is inappropriate, however, to resort to extrinsicsources where, as here, the statute is clear on its face.

B. The Legal Result Would Not Changeupon Review of Extrinsic Sources.

Legislative history will not yield a finding thatCongress intended Title II to reach employment.Petitioner questions the opinion of the Tenth Circuitfor its failure to analyze legislative history, assertingthat such a review would support a finding thatCongress intended Title II to encompass employmentclaims. This ill-founded interpretation is insinuatedexclusively by three unpersuasive references. (Petition, p. 16). Like Petitioner, courts stretching Title IIto reach employment claims rely on one House committee report (101-485(11)). This one report, however,does not articulate the definitive congressional purpose behind Title II. The opinion of select members ofone house of Congress cannot take precedence overthe plain meaning of the statute. The Supreme Courthas warned against giving "authoritative weight to asingle passage of legislative history that is in no wayanchored in the text of the statute." Shannon v.

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United States, 512 U.S. 573 (1994). The ConferenceCommittee's reports do not discuss the scope of TitleII and are silent on the subject of whether Title IIwas meant to reach employment claims. This question was simply not of concern at the time - likelybecause the very same Congress at the very sametime was working on a separate title of the ADAspecific to employment. This point is especially compelling in light of the finding in Garrett that "[t]helegislative records of the ADA .. . fails to show thatCongress did in fact identify a pattern of irrationalstate discrimination in employment against thedisabled." The Garrett Court supported its finding, in tpart, upon the following legislative history retrievedfrom House and Senate Reports:

Discrimination still persists in such criticalareas as employment in the private sector,public accommodations, public services, transportation, and telecommunications. ... [T]hereexists a compelling need to establish a clearand comprehensive Federal prohibition ofdiscrimination on the basis of disability inthe areas of employment in the private sector,public accommodations, public services, transportation, and telecommunications.

531 U.S. at 371-72 (emphasis in the original) (citations omitted); see also S. Rep. No. 116, 101st Cong.,1st Sess. 58 (1989) ("employment practices are governed by [Tjitle I of this legislation.").

A comparison with other legislation will renderno better result for Petitioner. (App. 15-20). Petitioner

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ontends an analysis of the Rehabilitation Act ishelpful; however, Title II only expressly incorporatesne section of the Rehabilitation Act, 29 U.S.C.

§794(a), which includes the Act's procedural, notubstantive, rights. Moreover, Congress has actually

linked Title I of the ADA to the Rehabilitation Actather than Title II, by incorporating the employ

ment-related standards of Title I into the Rehabilitation Act after passing the ADA. See 29 U.S.C.§794(d). Petitioner's reliance on a Fifth Circuit tofurther this point is misplaced and not instructive on+he issue presented. See Petition, p. 15, citing FrameI City of Arlington, 657 F.3d 215, 223-24 (5th Cir.2011) (determining whether newly built and alteredgidewalks were fairly within the "services, programs,or activities" language of Title II).

Finally, Petitioner asks the Court to give weightto the implementing regulations of Title II. Becausethe ADA is unambiguous, there should be no resort tothe executive's interpretation. See Chevron U.S.A.,Inc v. Natural Res. Def Council, Inc., 467 U.S. 837(1984); see also Robinson v. Shell Oil, 519 U.S. at 340("Our inquiry must cease if the statutory language isnambiguous and the statutory scheme is coherent

Und consistent.") (internal quotation marks and citingreferences omitted). If any resort were taken, it would

roVe fatal, as the regulations do not conform to theUW. Regulatory discretion and rule making authoritymust be exercised within certain parameters, and itis the duty of the judiciary to see that those limits are10t exceeded. See Manhattan Gen. Equip. Co. v.

30

Comm'r of Internal Revenue, 297 U.S. 129 (1936)(internal citations omitted).

III. ANY MODIFICATION OF THE SETTLEDLAW IMPLICATES THE ELEVENTHAMENDMENT AND THE CONSTITUTIONALITY OF TITLE II AS APPLIED TONON-CONSENTING STATES FOR EMPLOYMENT CLAIMS.

This is not just a question of statutory construction; it is a question of the unconstitutionality of thecourse pursued. If Title II is held to extend to employment, it is imperative to confront squarely theconsequence of such holding.18 While this Court hascalled for judicial restraint in deciding the constitutionality of a statute if the case may be decided onother grounds, Dep't of Commerce v. U.S. House ofRepresentatives, 525 U.S. 316, 343-44 (1999), it is anappropriate and necessary exercise where, as here,States are entitled to the protections of the Eleventh

18 Each refusing to read Title II as extending to employmentand declining to allow Petitioner's Title II claim to proceed,neither court below needed to reach the looming constitutionalquestion created by any decision to hold otherwise. Both courtsacknowledged Respondent's preservation of the issue anddiscussed how a contrary holding wouldnecessarily lend itself tosuch a determination. (App. 13-15, 30-31, and 33). Havingpreserved in every filing and at every stage the defense of itsEleventh Amendment immunity from a Title II employmentsuit, Respondent is entitled to have this integral issue considered as fairly comprised within the underlying Title II scopequestion if suchis answered broadly to cover employment.

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Amendment from employment discrimination claimsunder the ADA.19 By exceeding its constitutionalauthority to enforce the Fourteenth Amendment forthis class of conduct, Congress did not validly abrogate the States' immunity therefrom.

The EleventhAmendment provides, "The judicialpower of the United States shall not be construed toextend to any suit in law or equity, commenced orprosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects ofany Foreign State." U.S. Const, amend. XI. "A foundational premise of the federal system is that States,as sovereigns, are immune from suits for damages,save as they elect to waive that defense." Coleman v.Court ofAppeals of Md., - U.S. --, 132 S.Ct. 1327,1333 (2012), citing Kimel v. Fla. Bd. ofRegents, 528U.S. 62, 72-73 (2000). "As an exception to this principle, Congress may abrogate the States' immunityfrom suit pursuant to its powers under §5 of the

19 "The right to declare a law unconstitutional arisesbecause an act of Congress relied upon by one or the other ofsuch parties in determining their rights is in conflict with thefundamental law." Muskrat v. United States, 219 U.S. 346, 361(1911); see also Marbury v. Madison, 5 U.S. 137, 177-78 (1803)("This is of the very essence of judicial duty.") Refusing toconsider the pressing constitutional question would render thetragic and unnecessary result cautioned centuries ago by theMarbury Court: "It would declare that an act, which, accordingto the principles and theory of our government, is entirely void;is yet, in practice, completely obligatory." Id. at 178. The Statesand the public ought to know at once whether and how Title IIwill implicate public employers and employees.

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Fourteenth Amendment." Id., citing Fitzpatrick v. jBitzer, 427 U.S. 445 (1976). j

Because "[i]t is clear that Congress intended to jinvoke §5 as one of its bases for enacting the ADA" J(Garrett, 531 U.S. at 364, n.3 (2001)), the pertinent |question is whether Title II's prohibition against jpublic employment discrimination is a valid exercise |of congressional power under § 5 of the Fourteenth |Amendment. See, e.g., Coleman, 132 S.Ct. at 1333,and Garrett, 531 U.S. at 363-65. The Court has ad- \dressed whether Congress appropriately exercised its \authority and abrogated States' sovereign immunity jin enacting the ADA with respect to both Title II s ^(for conduct that actually violates the Fourteenth jAmendment) and employment discrimination (as it is |covered under Title I). See United States v. Georgia, j546 U.S. 151 (2006); Lane, 541 U.S. at 523-25; and JGarrett, 531 U.S. 356. Regarding suits for money jdamages under Title II of the ADA, the Court has |found a state's sovereignty abrogated only in those |very specific and limited instances in which a funda- jmental constitutional right of a disabled claimant is iat stake. See Georgia, 546 U.S. 151 (implicating theEighth Amendment right to be free from cruel and -unusual punishment administered by state prison);and Lane, 541 U.S. at 523-25 (implicating the Sixth jAmendment rights of paraplegics who were denied |physical access to state courthouses). The Court has |previously determined that government employment jis not a fundamental right. See United Bldg. & Constr. \Trades Council v. Camden, 465 U.S. 208, 219 (1984). \

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In those instances in which a fundamental constitutional right ofa disabled plaintiff is not at stake,such as here, the courts must decide on a claim-by-claim basis "whether Congress's purported abrogationof sovereign immunity as to that class of conduct isnevertheless valid." Georgia, 546 U.S. at 159. ThisCourt in Garrett analyzed the precise question posedhere, although doing so in the context of Title I:whether the statutory prohibition ofunconstitutionaldisability discrimination in public employment was avalid exercise ofcongressional power. See Garrett, 531U.S. at 368-74. The Court held that it was not, thuspreserving the States' sovereign immunity from suchsuits. See id. As demonstrated below, the Garrettanalyses and holdings are equally applicable to adetermination regarding Title II's prohibition, if any,on public employment discrimination.

Legislation enacted under §5 must target "conduct transgressing the Fourteenth Amendment'ssubstantive provisions." Fla. Prepaid PostsecondaryEd. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 639(1999); see also Kimel, 520 U.S. at 88-89; and City ofBoerne v. Flores, 521 U.S. 507, 525 (1997). The constitutional right determined to be at issue in Congress'sprohibition of public employment discriminationagainst the disabled is that embodied in §1 of theFourteenth Amendment. See Garrett, 531 U.S. at 365-66. States' treatment of the disabled in the employment context receives a rational basis review. See id,at 365-68; see also Lane, 541 U.S. at 540; and

IT

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Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446 ;(1985). The limitations the Fourteenth Amendment jplaces upon States' treatment of the disabled have jbeen analyzed under equal protection jurisprudence, jand the Court determined: 1

States are not required by the Fourteenth |Amendment to make special accommoda- Jtions for the disabled, so long as their actions ftoward such individuals are rational. ... If Ispecial accommodations for the disabled are Jto be required, they have to come from posi- 1tive law and not through the Equal Protec- jtion Clause. I

Garrett, 531 U.S. at 367-68. \The Court should next "examine whether Con- «

1

gress identified a history and pattern of unconstitu- Jtional employment discrimination by the States |against the disabled." Id. at 368. Performing this jexact analysis for a Title I issue, the Garrett Court |found, "[t]he legislative record ofthe ADA . . . fails to tshow that Congress did in fact identify a pattern ofirrational state discrimination in employment againstthe disabled." Id., 121 S. Ct. 955. It would be untenableto find that the history of public discriminationagainst the disabled in employment is insufficient topermit Congress to extend Title I to the States but ;that the same history is somehow sufficient to allow \Congress to fashion Title II to reach state employers. |

3The final step in the analysis is to determine 1

whether "[t]here [is] a congruence and proportionality *K

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between the injury to be prevented or remedied andthe means adopted to that end." City of Boerne, 521U.S. at 519-20. Even if there were a demonstrablepattern of discrimination by State employers againstthe disabled, the Court has already determined that"the rights and remedies created by the ADA againstthe States" would fail to prove congruent and proportional to such history of unconstitutional discrimination. See Garrett, 531 U.S. at 372-74.

For employment claims against the States, TitleII was not validly enacted pursuant to Congress'senforcement power under §5 of the FourteenthAmendment and, therefore, does not abrogate theStates' Eleventh Amendment immunity. Without avalid abrogation of sovereign immunity as to thespecific class of conduct to be prohibited by Title II, noclaim thereunder for such conduct is permissible.Federal district courts across the country agree.20

20 See, e.g., Trickey, 2012 WL 3245956, *1 ("The constitutional bar'[against aTitle I employment discrimination claim] isno less present against a Title II employment-discriminationclaim ")• Jones v. New York State Metro Developmental DisabilitiesServices Office, 2012 WL 2478344 (S.D.N.Y. June 28) (extendingthe Eleventh Amendment immunity to bar Plaintiff's ADAemployment discrimination claims, whether intended underTitle I orTitle II); Shipman v. New York State Office ofPersonswith Developmental Disabilities, 2012 WL 897790, *7 (S.D.N.Y.Mar. 13) (holding regardless of whether Title II extends toemployment discrimination, the Eleventh Amendment barredplaintiff's Title II claim); Rivers v. Bannister, 2012 WL 486178(D.S.C. Feb. 13) (assuming without deciding that Title IIencompasses employment discrimination claims and holding


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CONCLUSION

This matter was born from nothing more than anattempt to circumvent the constitutional protectionsafforded Respondent by litigating underan inapplicablesection of the ADA. For all the foregoing reasons, theRespondent respectfully requests the Petition for Writof Certiorari be denied.

Respectfully submitted,

Shawnae E. RobeyCounsel ofRecord

Office of Legal CounselUniversity of Oklahoma660 Parrington Oval, Suite 213Norman, Oklahoma 73019(405) [email protected]

Attorney for Respondent

that the Eleventh Amendment barred plaintiff's Title II claim);Marsh, 2011 WL 806423, *4; Elwell, 2011 WL 560455, n.*[sic](recognizing that the Garrett analysis would extend EleventhAmendment immunity to a Title II employment discriminationclaim if such were allowed); Castells v. Fisher, 2007 WL1100850,*5 (E.D.N.Y. Mar. 24); Clifton, 478 F. Supp. 2d at 1368;Osborne, 2006 WL 2090089, n.3 (recognizing that the Garrettanalysis would extend Eleventh Amendment immunity to aTitleII employment discrimination claim if such were allowed);Leverette, 453 F. Supp. 2d at 1345; Cisneros v. Colorado, 2005WL 1719755, *5 (D. Colo. July 22); Williamson v. Ga. Dep't ofHuman Res., 150 F. Supp. 2d at 1380-81; and Lieberman v.Delaware, 2001 WL 1000936, *2-4 (D. Del. Aug. 30).

questions presented forreview 1. whether...

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