Number range CHAPTERUNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

COLUMBIA DIVISION

Abner N. Martin, Jr. )

)

Plaintiff, ) Case No. 3:97-0740-19BD

)

v\. )

)

South Carolina Department of )

Transportation, )

)

Defendant )

)

**UNITED STATES\' [AMICUS]{.underline} MEMORANDUM**

**IN RESPONSE TO DEFENDANT'S MOTION TO DISMISS,**

**OR IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT**

**I. Nature of the Case**

Martin brought this suit alleging that Defendant South Carolina
Department of Transportation (\"DOT\") discriminated against him on the
basis of disability first when it discharged him and again when it
refused to reinstate him, in violation of the ADA.

**II. Facts and Procedural History**

Plaintiff alleges that after many years of employment as an engineer
with DOT, DOT fired him because of his status as an alcoholic rather
than an inability to perform the essential functions of his job, with or
without reasonable accommodation. Plaintiff also alleges that DOT
engaged in a campaign to mislead him into sleeping on his rights until
the 300-day filing limit for administrative complaints had lapsed.
Finally, Plaintiff alleges that DOT's refusal to reinstate him in March
1996 constitutes an independent violation of the ADA.

On April 24, 1997, DOT filed a Motion to Dismiss or, In the Alternative,
for Summary Judgment. Plaintiff filed a Response in Opposition on May 7,
1997, and DOT filed its Reply on May 12, 1997. Because title II coverage
of employment was not clearly raised as an issue until DOT's Reply
brief, the Court has allowed Plaintiff until July 1, 1997, to submit an
additional brief addressing this subject. The United States, in a Motion
filed concurrently with the instant Memorandum, has sought leave to
participate as [amicus curiae]{.underline} to address title II coverage
as well.

**III. Argument**

DOT moves to dismiss this suit on two grounds. First, DOT mistakenly
claims that title I of the Americans with Disabilities Act of 1990, 42
U.S.C. §§ 12101 [et seq.]{.underline},("ADA"), rather than title II, is
the exclusive authority for this Court's jurisdiction over this suit and
that Martin has failed to meet title I's administrative exhaustion
requirement in a timely manner. Second, DOT claims that even under title
II, Martin's suit is barred by the one-year statute of limitations in
the South Carolina Human Affairs Law.[^1]

Even if the Court declines to adopt the United States' position that
title II governs this suit, and regardless of which State statute of
limitation is held to apply, the Court should not grant DOT's motion
without a more complete factual record. It is well established that the
Court must view the facts in the light most favorable to the plaintiff
at this stage of the proceedings and permit the plaintiff an opportunity
to develop the record. [White v. University of South
Carolina-Columbia]{.underline}, 1996 WL 276540, \*3 (D.S.C.) (citing
[Adickes v. S.H. Kress & Co.]{.underline}, 398 U.S. 144, 157 (1970)).

**A. [MARTIN HAS ASSERTED A VALID CLAIM UNDER TITLE II OF THE
ADA]{.underline}.**

Title II is an appropriate statutory authority for Martin's complaint
and title II procedures may be followed by someone claiming employment
discrimination by a public entity. Title II procedures do not require a
plaintiff to exhaust administrative remedies, so there is no procedural
bar to Martin's claim under title II of the ADA.

> **1.** **Title II reaches employment discrimination by public
> entities.**

DOT is wrong to suggest that title II does not cover employment
discrimination by public entities. Although some district courts have
split from the majority view on this issue, most courts that have
considered the issue have concluded that title II does reach employment
discrimination.[^2] The Fourth Circuit has reached the same conclusion
by implication, but without acknowledging or specifically addressing the
issues. [See]{.underline} [Doe v. Univ. Of Maryland Medical Systems
Corp.]{.underline}, 50 F.3d 1261, 1264 (4^th^ Cir. 1995). This Court
should adopt the majority view that title II covers discrimination in
employment by public entities, based upon a careful review of (1) the
statutory language and structure; (2) the legislative history; and (3)
Department of Justice's title II regulation.

a\. **Statutory language and structure.**

"We start, as we must, with the language of the statute." [Bailey v.
United States]{.underline}, 116 S. Ct. 501, 506 (1995). "\'\[T\]he Court
must look to the particular statutory language at issue, as well as the
language and design of the statute as a whole.'" [Sullivan v.
Everhart]{.underline}, 494 U.S. 83, 89 (1990) (quoting [K-Mart Corp. v.
Cartier, Inc.]{.underline}, 486 U.S. 281, 291 (1988)). The ADA is
divided into five titles, the first two of which are relevant here.[^3]
Title I prohibits discrimination on the basis of disability by most
larger private and public employers.[^4] Title II prohibits
discrimination by public entities, generally, without regard to the size
of the entity.

i\. **Section 202**

Section 202 of Title II provides that "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
such entity]{.underline}." 42 U.S.C. § 12132 (emphasis added). Nearly
all courts which have directly considered this language have found it to
be sufficiently broad to reach employment by public entities.
[See]{.underline}, [e.g.]{.underline}, [Davoll v. Webb]{.underline}, 943
F. Supp. 1289, 1297 (D. Colo. 1996); [Wagner v. Texas A & M
Univ.]{.underline}, 939 F. Supp. 1297, 1309 (S.D. Tex. 1996); [Graboski
v. Guilinai]{.underline}, 937 F. Supp. 258, 267-68 (S.D.N.Y. 1996);
[Silk v. City of Chicago]{.underline}, 1996 WL 312074 \*10 (N.D. Ill.
1996); [Bruton v. Southeastern Pennsylvania Transp.
Authority]{.underline}, 1994 WL 470277 \*2 (E.D. Pa. 1994); [Ethridge v.
Alabama]{.underline}, 847 F. Supp. 903, 906 (M.D. Ala. 1993); [Eisfelder
v. Michigan Dept. of Nat'l Resources]{.underline}, 847 F. Supp. 78, 83
(W.D. Mich. 1993); [Finley v. Giacobbe]{.underline}, 827 F. Supp. 215,
219-220 (S.D.N.Y. 1993); [Peterson v. Univ. of Wisconsin Bd. of
Regents]{.underline}, 818 F. Supp. 1276, 1278 (W.D. Wisc. 1993); [Bell
v. Retirement Bd. of the Firemen's Annuity and Benefit Fund of
Chicago]{.underline}, 1993 WL 398612 \*4 (N.D. Ill. 1993); [see
also]{.underline} [Dertz v. City of Chicago]{.underline}, 912 F. Supp.
319, 325 (N.D. Ill. 1995).

A minority of courts, however, including the Federal District Court in
[Bledsoe v. Palm Beach Soil and Water Conservation
District]{.underline}, 942 F. Supp. 1439 (S.D. Fla. 1996) (pending on
appeal, CA No. 96-5375 (11^th^ Cir., filed Nov. 13, 1996)), upon which
DOT relies heavily, have reached the opposite conclusion. [See
also]{.underline} [Roberts v. County of Fairfax, Virginia]{.underline},
937 F. Supp. 541, 547 n.6 (E.D. Va. 1996) (The Court granted summary
judgment to defendant on a title I claim. However, the Court explicitly
ruled that because plaintiff's counsel could not provide authority when
questioned at oral argument about coverage of title II over "government
employment," the complaint failed to state a claim pursuant to title
II.); [Iskander v. Rodeo Sanitary Dist.]{.underline}, 1995 WL 56578 \*9
(N.D. Cal. 1995)(Court states that plaintiff did not produce, and Court
did not find, authority for title II coverage of government employment.
No authority cited by the Court for its holding that title I is
exclusive authority for employment claims.). These Courts, in finding
that the plain language of the statute does not encompass a cause of
action for employment, have focused entirely on the portions of section
202 that protect qualified individuals with disabilities from being
"excluded from participation in or be\[ing\] denied the benefits of the
services, programs, or activities of a public entity."

Significantly, DOT's argument overlooks an important portion of the
operative language of section 202. Read in full, the provision is
written broadly to encompass employment practices. If the Court were to
ignore the language "or be subjected to discrimination by any \[public\]
entity," a significant portion of section 202 would be meaningless and
redundant. It is an elementary canon of statutory construction that
statutes must be read "with the assumption that Congress intended each
of the terms to have meaning. Judges should hesitate to treat \[as
surplusage\] statutory terms in any setting." [Bailey v. United
States]{.underline}, \_\_\_ U.S. \_\_\_, 116 S. Ct. 501, 506 (1995);
[Dept. of Revenue of Oregon v. ACF Industries, Inc.]{.underline}, 510
U.S. 332, 340 (1994). Whether the terms "services, programs, or
activities" include the term "employment" is largely irrelevant to the
prohibition in the final clause of section 202, which is not tied to the
"services, programs, or activities" of the public entity. It simply
provides protection to qualified individuals with disabilities from
being "subjected to discrimination by any such entity." 42 U.S.C. §
12132.

Although admittedly section 202 does not state on its face that
discrimination in employment based on disability is covered, the
"expansive" language noted above has been interpreted by the Supreme
Court in the context of similar Federal civil rights statutes to
encompass a cause of action for employment discrimination. [Consolidated
Rail Corp. v. Darrone]{.underline}, 465 U.S. 624 (1984) (section 504 of
the Rehabilitation Act of 1973); [North Haven Board of Education v.
Bell]{.underline}, 456 U.S. 512 (1982) (title IX of the Education
Amendments of 1972). Similar language here should be given the same
interpretation.

As the Second Circuit recently found in [Innovative Health Systems, Inc.
v. City of White Plains]{.underline}, No. 96-7797 WL 349853 \*\_\_\_
(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.\"

The Fourth Circuit has implicitly recognized that the language of
section 202 parallels section 504 of the Rehabilitation Act and,
therefore, reaches employment discrimination:

> Section 504 of the Rehabilitation Act, 29 U.S.C.A. § 794, and Title II
> of the ADA, 42 U.S.C.A. § 12132, prohibit discrimination against an
> otherwise qualified individual with a disability. In order to
> establish a violation of either of these statutes, a plaintiff must
> prove: (1) that he has a disability; (2) that he is otherwise
> qualified for the employment or benefit in question; and (3) that he
> was excluded from the employment or benefit due to discrimination
> solely on the basis of disability.

[Doe v. Univ. of Maryland Medical Sys. Corp.]{.underline}, 50 F.3d 1261,
1264-65 (4^th^ Cir. 1995)(employment case brought by HIV positive
surgeon who was rejected from a neurosurgical residency program at a
public hospital)(esp. at note 9: "Because the language of the two
statutes is substantially the same, we apply the same analysis to both.
[Cf.]{.underline} 42 U.S.C. § 12133 (incorporating the 'remedies,
procedures, and rights' of 29 U.S.C.A. § 794a into Title II of the
ADA)"(excluding some parenthetical remarks)).

Certainly, the Fourth Circuit's application of title II to an employment
matter in [Doe v. Univ. of Maryland Medical Sys. Corp]{.underline}. is
consistent with the weight of judicial authority, and inconsistent with
the minority position, represented by the [Bledsoe]{.underline} District
Court, the primary authority relied upon by DOT. Even the
[Bledsoe]{.underline} District Court believed that the Fourth Circuit
had adopted the majority position and had found title II to cover
employment discrimination by public entities. [Bledsoe]{.underline} at
1443, [citing]{.underline} [Univ. of Maryland Medical
Systems]{.underline}.

> **ii. Section 204**

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 \[section 504 of the
Rehabilitation Act of 1973\]." 42 U.S.C. § 12134(b). Those section 504
regulations incorporated by reference in the title II regulatory mandate
expressly prohibit employment discrimination on the basis of disability.
[See]{.underline} 28 C.F.R. §§ 41.52-41.55. Again, in explaining the
intent underlying title II, Congress has referred to provisions that
expressly reach employment practices.

"Interpreting a statute or regulation \'is a holistic endeavor.'"
[Thomas Jefferson Univ. v. Shalala]{.underline}, 512 U.S. 504, 528
(1994) (quoting [United Sav. Ass'n of Texas v. Timbers of Inwood Forest
Assoc., Ltd.]{.underline}, 484 U.S. 365, 371 (1988)). The combined
effect of these statutory provisions strongly supports Martin's
contention that Congress intended employment discrimination to be
covered under title II.

> **b. Legislative history.**

Even if the statutory provisions were ambiguous, reference to the
legislative history confirms the United States' interpretation of title
II as reaching employment discrimination by public entities.

> A statute, like other living organisms, derives significance and
> sustenance from its environment, from which it cannot be severed
> without being mutilated. Especially is this true where the statute,
> like the one before us, is part of a legislative process having a
> history and a purpose. The meaning of such a statute cannot be gained
> by confining inquiry within its four corners. Only the historic
> process of which such legislation is an incomplete fragment --- that
> to which it gave rise as well as that which gave rise to it --- can
> yield its true meaning.

[United States v. Thompson/Center Arms Co.]{.underline}, 504 U.S. 505,
516 n.8 (1992) (quoting [United States v. Monia]{.underline}, 317 U.S.
424, 432 (1943) (J. Frankfurter, dissenting)).

In promulgating title II regulations providing for employment coverage,
the Department of Justice relied upon statements in the report of the
House Education and Labor Committee that title II "essentially simply
extends the anti-discrimination prohibition embodied in section 504 to
all actions of State and local governments," and 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." 56 Fed. Reg. 6545 (Feb. 28, 1991), citing H.R. Rep.
101-485(II), 101^st^ Cong., 2d Sess. 84 (1990).

The Report noted that section 204 of the ADA requires that the
regulations issued to implement section 202 be consistent with the
section 504 regulations. [Id.]{.underline} Elaborating on that
directive, the Report states ([id.]{.underline})(emphasis added):

> The Committee intends . . . [the construction of \'discrimination' set
> forth in section 102(b) and (c)\[re: employment
> discrimination\]]{.underline} and section 302(b) \[re: public
> accommodations\] [should be incorporated in the regulations
> implementing \[title II\]]{.underline}. In addition, however, section
> 204 also requires that regulations issued to implement this section be
> consistent with regulations issued under 504. Thus, the requirements
> of those regulations apply as well, 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 Report states (H.R. Rep. 101-485(III),
101^st^ 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]{.underline} and public 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.

And again, at page 51, the Judiciary Committee Report 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.'"

The directives in the House Reports reflect the intent of Congress that
title II extend the protections of section 504 to the field of
employment by State and local governments. "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]{.underline}, 396 U.S. 168, 186 (1969).[^5]

The statutory language, coupled with this unambiguous direction by
Congress that regulations issued pursuant to title II should be
consistent with regulations issued under section 504, which do cover
employment discrimination, demonstrate that section 202 was intended to
cover employment discrimination.

Finally, DOT places undue emphasis on the disparity between coverage of
only larger private employers and all public employers, regardless of
size. Rational distinctions are based upon the view that public
employers should be at the forefront in eliminating discrimination
against their employees. Alternatively, cost considerations in the area
of small private employers are less prevalent when public entities are
involved.

In any event, the plain language of title II, along with the legislative
history, makes clear that title II was intended to cover employment
practices of all public entities, resulting in an Act that reaches all
public employers.

> **c. Department of Justice regulation.**

If, after examining the statute and its legislative history, the Court
seeks further guidance, it need look no further than the Department of
Justice title II regulation, which is entitled to considerable
deference. [Warren v. North Carolina Dept. Of Human
Resources]{.underline}, 65 F.3d 385, 391 (4^th^ Cir. 1995)(citing
[Chevron USA, Inc. v. Nat'l Resources Defense Council,
Inc.]{.underline}, 467 U.S. 837 (1984)). "\'\[I\]f the statute is silent
or ambiguous with respect to the specific issue, the question for the
court is whether the agency's answer is based on a permissible
construction of the statute,'" (quoting [Chevron]{.underline} at 843),
"\'that is, whether the agency's construction is \'rational and
consistent with the statute.'" [Sullivan v. Everhart]{.underline}, 494
U.S. 83, 88 (1990) (quoting [NLRB v. Food and Commercial
Workers]{.underline}, 484 U.S. 112, 123 (1987)).

In its regulation implementing title II, the Department of Justice
explicitly prohibits employment discrimination by public entities. 28
C.F.R. pt. 35, subpart C. In doing so, the Department followed Congress'
directive as expressed in the legislative history of the title II (see
discussion, [supra]{.underline}). Section 35.140(a) of the title II
regulation provides: "No qualified individual with a disability shall,
on the basis of disability, be subjected to discrimination in
[employment]{.underline} under any service, program, or activity
conducted by a public entity." 28 C.F.R. § 35.140(a)(emphasis
added).[^6]

Congress explicitly delegated authority to the Department of Justice to
construe title II of the ADA by regulation. 42 U.S.C. § 12134. The
Department\'s implementing regulation --- including Subpart C which
prohibits employment discrimination by public entities --- should be
accorded \"controlling weight unless it is arbitrary, capricious, or
manifestly contrary to the statute.\" [ABF Freight System, Inc. v.
NLRB]{.underline}, 510 U.S. 317, 324 (1994); [United States v.
Morton]{.underline}, 467 U.S. 822, 834 (1984). [See also]{.underline}
[Chevron USA, Inc. v. Natural Resources Defense Council,
Inc.]{.underline}, 467 U.S. 837, 844 (1984); [Fort Mill Telephone Co. v.
FCC]{.underline}, 719 F.2d 89, 91 (4^th^ Cir. 1983); [Commonwealth of
Virginia ex rel. Coleman v. Califano]{.underline}, 631 F.2d 324, 327
(4^th^ Cir. 1980); [Tugg v. Towey]{.underline}, 864 F. Supp. 1201, 1205
n.6, 1208 (S.D. Fla. 1994) (according Department of Justice\'s ADA title
II regulation controlling weight regarding coverage of discrimination on
the basis of association); [Noland v. Wheatley]{.underline}, 835 F.
Supp. 476, 483 (N.D. Ind. 1993) (applying [Chevron]{.underline} to give
controlling weight to Department of Justice interpretation of title II
of the ADA); [Petersen v. University of Wisconsin Bd. of
Regents]{.underline}, 818 F. Supp. 1276, 1279 (W.D. Wisc. 1993) (same).

"\'To sustain the \[agency's\] application of \[a\] statutory term, we
need not find that its construction is the only reasonable one or even
that it is the result we would have reached had the question arisen in
the first instance in judicial proceedings.'" [Udall v.
Tallman]{.underline}, 380 U.S. 1, 16 (1965) (quoting [Unemployment
Compensation Comm'n of Alaska v. Aragon]{.underline}, 329 U.S. 143, 153
(1946)); [Shanty Town Associates Ltd. Partnership v. EPA]{.underline},
843 F.2d 782, 790 (4^th^ Cir. 1988). Even if a court disagrees with the
wisdom of Congress' preference that title II procedures govern
employment cases against public entities, agency regulations reflecting
that preference should be upheld. [Chevron]{.underline} at 842-43;
[Hicks v. Cantrell]{.underline}, 803 F.2d 789, 792 (4^th^ Cir. 1986);
[Motley v, Heckler]{.underline}, 800 F.2d 1253, 1254-55 (4^th^ Cir.
1986).

> **2. Title II does not contain an administrative exhaustion
> requirement.**

Unlike title I of the ADA, "\[c\]laims under title II of the ADA do not
require exhaustion of administrative remedies." [^7] [Noland v.
Wheatley]{.underline}, 835 F. Supp. 476, 482 (N.D. Ind. 1993). [See
also]{.underline} [Bell v. Retirement Brd. of the Firemen's Annuity and
Benefit Fund of Chicago]{.underline}, 1993 WL 398612 at \*45 (N.D. Ill.
1993) (same); [Finley v. Giacobbe]{.underline}, 827 F. Supp. 215, 219
n.3 (S.D.N.Y. 1993) (same); [Peterson v. Univ. of Wisc. Brd. Of
Regents]{.underline}, 818 F. Supp. 1276, 1278 (W.D. Wisc. 1993) (same).

DOT places undue emphasis on the fact that Martin filed a charge with
the South Carolina Human Rights Commission. DOT argues that this is
indicative of Martin's own belief that he was subject to the
charge-filing and exhaustion requirements of title I. DOT Reply at 3.
Under title II, persons who believe that they have been subjected to
discrimination by public entities are permitted, though not required, to
file administrative complaints. Federal agencies investigate these
complaints and attempt to resolve them through formal or informal means
before resorting to litigation. Even if the Federal government files
suit on behalf of an individual, that person is not required to
participate in the litigation. Many people, therefore, choose to file
title II complaints with Federal agencies instead of, or prior to,
filing a private suit.

In fact, many employees who have been subjected to discrimination by
public employers have claims under both section 504 and the ADA, as many
State and local governments receive some form of Federal financial
assistance. It would be anomalous to interpret the ADA such that an
employee of a public entity had to exhaust administrative remedies under
the ADA, but could proceed directly to litigation under section 504 for
the same claim.

The legislative history of the ADA establishes that Congress did not
intend to require exhaustion where none had been required before under
section 504, and so title II did not include an exhaustion requirement.
"Again, consistent with section 504, it is not the Committee's intent
that persons with disabilities need to exhaust Federal administrative
remedies before exercising their private right of action." H.R. Rep.
101-485 (II) (House Education and Labor Committee), 101^st^ Cong., 2d
Sess. at 98. Insofar as title I created a new cause of action, requiring
exhaustion did not create a procedural hurdle where none had existed
before as private employers are rarely subject to section 504.[^8]

Whether or not, therefore, the South Carolina Human Rights Commission
received a timely complaint of discrimination based on

DOT's discharge of Martin, there is no procedural bar to Martin's suit.

B. [DISMISSAL IS INAPPROPRIATE AND SUMMARY JUDGMENT IS PREMATURE BASED
ON THE LIMITED RECORD BEFORE THE COURT]{.underline}.

DOT wrongly argues that Martin's allegation of discriminatory discharge
was time-barred under two alternate theories: (1) that under title I of
the ADA the suit is barred because Martin failed to file a timely charge
of discrimination with the South Carolina Human Affairs Commission or
the EEOC;[^9] or (2) that under title II the suit is barred because the
one-year statute of limitations borrowed from the historic State Human
Affairs Law applies to title II cases.[^10] As discussed,
[supra]{.underline}, the procedures of title I do not govern this case.
Moreover, regardless of which State statute of limitations is borrowed
for title II purposes, DOT's motion should be denied because Martin has
alleged sufficient facts with respect to his charge of discriminatory
discharge that, if true, would trigger the doctrines of equitable
estoppel or equitable tolling to postpone the dates on which any period
of limitation would have run.

DOT's motion before the Court is styled as a motion to dismiss or, in
the alternative, for summary judgment. The motion should be denied
because DOT has not met the standard for dismissal nor that for summary
judgment.

1\. **DOT's Motion to Dismiss should be denied.**

In considering a motion to dismiss under Rule 12(b)(6) of the Federal
Rules of Civil Procedure, the Court must accept as true all well-pleaded
factual allegations in the complaint, drawing all reasonable inferences
in favor of the plaintiff. [Hishon v. King & Spalding]{.underline}, 467
U.S. 69, 73 (1984). "Dismissal for failure to state a claim is proper
where \'it is clear that no relief could be granted under any set of
facts that could be proved consistent with the allegations." [Randall v.
United States]{.underline}, 95 F.3d 339, 343 (4^th^ Cir. 1996), [cert.
denied]{.underline}, \_\_\_ U.S. \_\_\_, 117 S. Ct. 1085 (1997)(quoting
[Biggs v. Meadows]{.underline}, 66 F.3d 56, 59 (4^th^ Cir. 1995)
(citations omitted)).

Martin and DOT disagree about when the 300-day filing period began:
Martin believes that it began in April 1996, while DOT believes it began
as early as June 21, 1995. Martin alleges that he had a continued
expectation of permanent employment with DOT until April 1996 because he
was told that as long as he continued to be sober, he would be
reinstated within the year and all of his back benefits would be
restored ([i.e.]{.underline}, that his status was somewhat akin to that
of an employee in an indefinite period of leave without pay). He further
alleges that he held this expectation in good faith until being
informed, in April 1996, that he would not be reinstated. Taking
Martin's allegations as true for the purposes of the Motion to Dismiss,
the last relevant date of discrimination was April 1996.

Even if the Court were to accept DOT's argument that Martin was finally
discharged on June 21, 1995, Martin has made sufficient other
allegations --- allegations which must be presumed to be true for the
purposes of a motion to dismiss \-- that would support the conclusion
that equitable concepts such as tolling and estoppel gave him additional
time within which to file a charge of discrimination or file suit.
"\[F\]iling a timely charge of discrimination with the EEOC is not a
jurisdictional prerequisite to suit in Federal court, but a requirement
that, like a statute of limitations, is subject to waiver, estoppel, and
equitable tolling." [Zipes v. Trans World Airlines, Inc.]{.underline},
455 U.S. 385, 393 (1982) (title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-5(f)(3)). [See also]{.underline} [English v. Pabst
Brewing Co.]{.underline}, 828 F.2d 1047, 1049 (4^th^ Cir. 1987), [cert.
denied]{.underline}, 486 U.S. 1044 (1988); [Vance v. Whirlpool
Corp.]{.underline}, 716 F.2d 1010, 1011-12 (4^th^ Cir. 1983). In
borrowing State statutes of limitation for Federal civil rights cases,
Courts must also refer to State rules of equity for tolling statutes of
limitations and applying the doctrine of equitable estoppel. [Board of
Regents v. Tomanio]{.underline}, 446 U.S. 478, 483-84 (1980); [see
also]{.underline} [Shofer v. Hack Co.]{.underline}, 970 F.2d 1316, 1320
(4^th^ Cir. 1992).

> **2. DOT's alternative Motion for Summary Judgment is premature and
> should be denied.**

Summary judgment is only appropriate when there are no genuine issues of
material fact in dispute. Fed. R. Civ. P. 56. Facts presented in the
record require the Court to view them "in the light most favorable to
the nonmoving party so that any doubt as to the existence of a genuine
issue of material fact will be resolved in favor of denying the motion."
[White v. University of South Carolina-Columbia]{.underline}, 1996 WL
276540, \*1 (D.S.C.) (citing [Adickes v. S.H. Kress & Co.]{.underline},
398 U.S. 144, 157 (1970)). In the instant case, DOT's motion should be
denied because there are many important factual disputes that will
remain unresolved until further discovery has been completed. Some of
these issues are central to DOT's claim that Martin has satisfied
neither the statute of limitations nor the deadline for filing an
administrative charge.

For instance, Martin alleges and DOT denies the following:

∙ Martin was finally told that he would not be reinstated in April 1996
(Complaint at ¶ 12; Amended Complaint at ¶ 15; Martin Affidavit at ¶¶
17-18; Answer at ¶ 12);

∙ Martin was told by DOT in July 1995 not to hire a lawyer or to protect
his rights administratively, in an attempt by DOT to mislead and coerce
Martin into sleeping on his legal rights (Amended Complaint at ¶¶ 15,
16; Martin Affidavit at ¶ 9);

∙ Martin filed a timely charge of discriminatory discharge with the
South Carolina Human Affairs Commission (Complaint ¶¶ 6; Letter of June
12, 1996, from Herbert W. Louthian to State Human Affairs Commission;
Affidavit of Paula C. Hollis; Answer at 1, ¶ III; Answer at ¶ 6); and

∙ Martin diligently checked on his employment status throughout late
1995 and early 1996, but was consistently denied access to his personnel
records (Complaint at ¶ 12; Amended Complaint at ¶ 14; Martin Affidavit
at 12-17; Answer at ¶ 12).

Denying the motion for summary judgment and allowing more discovery to
take place will give Martin a fair opportunity to develop his case
intending to show that both parties had a continued expectation of
employment or that he was misled into sleeping on his rights. For
instance, Martin will likely be able to satisfy the doctrines of
equitable tolling and equitable estoppel if he is able to show that he
was misled by DOT into sleeping on his rights. "To invoke equitable
tolling, the plaintiff must . . . show that the defendant attempted to
mislead him and that the plaintiff reasonably relied on the
misrepresentation by neglecting to file a timely charge." [English v.
Pabst Brewing Co.]{.underline}, 828 F.2d 1047, 1049 (4^th^ Cir. 1987)
(citing [Lawson v. Burlington Industries]{.underline}, 683 F.2d 862, 864
(4^th^ Cir.

1982)). "Equitable estoppel applies where, despite the plaintiff's
knowledge of the facts, the defendant engages in intentional misconduct
to cause the plaintiff to miss the filing deadline." [Id.]{.underline}
(citing [Felty v. Graves-Humphreys]{.underline}, 818 F.2d 1126 (4^th^
Cir. 1987); [Price v. Litton Business Systems]{.underline}, 694 F.2d
963, 965 (4^th^ Cir. 1982)).

At the conclusion of discovery, the trier of fact will have an
opportunity to judge the veracity and credibility of the parties'
conflicting versions of events. DOT's current Motion for Summary
Judgment should be denied because many disputes of material fact remain
that are central to determining the ultimate issues underlying DOT's
motion: [e.g.]{.underline}, whether Martin filed his suit on time or, if
the Court determines that title I's requirement of administrative
exhaustion applies, whether Martin

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filed a timely charge of discriminatory discharge with the South
Carolina Human Affairs Commission.

**IV.** **CONCLUSION**

For the foregoing reasons, the Court should deny Defendant\'s Motion to
Dismiss Or, In the Alternative, for Summary Judgment.

Dated: June \_\_\_\_\_, 1997

Washington, D.C.

Respectfully submitted,

ISABELLE KATZ PINZLER, J. RENE' JOSEY,

Acting Associate Attorney United States Attorney

General for Civil Rights

By:

JOHN L. WODATCH, Chief FRANCES C. TRAPP, Attorney

RENEE WOHLENHAUS, Acting Fed'l Bar No. 6379

Deputy Chief U.S. Attorney's Office

MARY LOU MOBLEY, Attorney 1441 Main Street

U.S. Department of Justice Columbia, SC 29201-2848

Civil Rights Division Tel: (803) 929-3000

Disability Rights Section

P.O. Box 66738

Washington, DC 20035-6738

Tel: (202) 307-0663

[CERTIFICATE OF SERVICE]{.underline}

I, the undersigned attorney for the United States of America, do hereby
certify that on this date, I served on the persons listed below, by
first class mail, postage prepaid, a true and correct copy of the
foregoing United States\' Opposition to Motion to Dismiss:

**Attorney for Plaintiff:**

Rebecca G. Fulmer, Esq.

LOUTHIAN & LOUTHIAN

1116 Blanding Street

P.O. Box 1299

Columbia, SC 29202

**Attorney for Defendant:**

Vance J. Bettis, Esq.

GIGNILLIAT, SAVITZ & BETTIS

900 Elmwood Ave., Suite 100

Columbia, SC 29201

SO CERTIFIED this 1^st^ day of July, 1997.

By:

Frances C. Trapp, AUSA

John B. Grimball, Civil Chief

UNITED STATES ATTORNEY'S OFFICE

FOR THE DISTRICT OF SOUTH CAROLINA

1441 Main Street

Columbia, SC 29201-2848

[^1]: ^?^ The United States will not address Defendant's arguments
    regarding the appropriate statute of limitations.

[^2]: ^?^ The first appeal of a Federal district court decision that
    squarely acknowledged and addressed the split of authority is
    currently pending before the Court of Appeals for the Eleventh
    Circuit, [Bledsoe v. Palm Beach Soil and Water Dist.]{.underline},
    CA No. 96-5375 (notice of appeal filed Nov. 13, 1996). The appeal is
    scheduled to be heard in Summer 1997.

[^3]: ^?^ Title III prohibits discrimination by public accommodations
    and commercial facilities, as well as the owners and administrators
    of certain types of courses and tests. Title IV covers
    telecommunications. Title V covers a diverse group of miscellaneous
    matters.

[^4]: ^?^ Title I covers employers whose industries affect commerce and
    who have fifteen (15) or more employees for each working day in each
    of twenty (20) or more calendar weeks.

[^5]: ^?^ The [Bledsoe]{.underline} District Court's reliance on
    [Shannon v. United States]{.underline}, 512 U.S. 573 (1994), as
    authority for dismissing the statements in the Report, is misplaced.
    Unlike the statement in the Senate Report at issue in
    [Shannon]{.underline}, this statement of congressional intent in
    enacting the ADA is "anchored in the text of the statute,"
    [Shannon]{.underline} at 583, because it can be said to "explain or
    interpret" both sections 202 and 204 of the ADA.

[^6]: ^?^ In section 35.140(b)(1), the Department clarifies that the
    substance of title I \[not its procedures\] applies to public
    entities which have fifteen (15) or more employees for each working
    day in each of twenty (20) or more calendar weeks, while section
    35.140(b)(2) applies the regulatory employment provisions of section
    504 to smaller public entities. 28 C.F.R. §§ 35.140(b)(1) and (2).

[^7]: ^?^ As explained, [supra]{.underline}, enforcement of title I
    parallels that of title VII of the Civil Rights Act of 1964, 42
    U.S.C. §§ 2000e-4 to 2000e-6, 2000e-8 to 2000e-9, which includes a
    requirement of administrative exhaustion.

    Persons alleging discrimination under title II have the remedies,
    procedures, and rights set forth in section 505 of the
    Rehabilitation Act, 29 U.S.C. § 794a. 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 [et seq.]{.underline} 29 U.S.C. 794a(a)(2). Congress
    understood that private litigants could sue recipients of Federal
    financial assistance pursuant to section 504, which incorporates the
    remedies of title VI. [Cannon v. Univ. of Chicago]{.underline}, 441
    U.S. 677, 702-03 n.33 (1979); 124 Cong. Rec. 37,508 (1978)
    (statement of Sen. Stafford) ("To date we have permitted certain
    rights of private enforcement of \[section 504\]."); [Doe v.
    Attorney General]{.underline}, 941 F.2d 780, 786-791 (9^th^ Cir.
    1991), [vacated on other grounds]{.underline}, [Reno v. Doe by
    Lavery]{.underline}, \_\_\_ U.S. \_\_\_, 116 S. Ct. 2543 (1996).
    Significantly for this case, section 504 does not include a
    requirement to exhaust administrative remedies. [Lau v.
    Nichols]{.underline}, 414 U.S. 563, 566-69 (1974); [Hills v.
    Gautreaux]{.underline}, 425 U.S. 284, 286 (1976).

[^8]: ^?^ In fact, there is dual coverage by titles I and II over claims
    of disability-based employment discrimination of public entities
    with 15 or more employees. [Dertz v. City of Chicago]{.underline},
    912 F. Supp. 319, 324 (N.D. Ill. 1995) ("Indeed, we recognize that
    because Count I is an employment discrimination claim, Dertz could
    have brought Count I under Title I of the ADA. However, he chose to
    bring Count I under Title II."); [Peterson v. Univ. of Wisc. Bd. of
    Regents]{.underline}, 818 F. Supp. 1276 (W.D. Wisc. 1993) (Court
    recognized that plaintiff could have brought employment claim under
    Title I of the ADA, but chose to bring it under Title II).

[^9]: ^?^ Title I requires complainants to file charges of
    discrimination within 180 days of the violation with the EEOC, or
    within 300 days with the EEOC or State agency in States that provide
    for a separate administrative review of charges of disability-based
    employment discrimination. South Carolina is one such State. Martin,
    therefore, if bound by title I, would have had 300 days within which
    to file his charge of discrimination with the EEOC or South Carolina
    Human Affairs Commission.

[^10]: ^?^ It should be noted that Martin's allegations that DOT
    discriminated against him by refusing to reinstate him --- as
    opposed to his allegation of discriminatory discharge --- is timely
    even under the 300 day filing requirement for title I or a one-year
    statute of limitation. Refusal to reinstate a discharged employee
    can be an independent act of discrimination in some circumstances.
    [See]{.underline}, [e.g.]{.underline}, [EEOC v. City of Norfolk
    Police Dept.]{.underline}, 45 F.3d 80, 84-85 (4^th^ Cir. 1996)
    (denial of a request for reinstatement of a discharged employee
    could constitute a discrete act of discrimination where the basis of
    discharge --- pending criminal charges against the employee --- were
    dropped prior to the refusal to reinstate).