*The Clerk of the Court is directed to amend the official

caption as set forth above.

**The Honorable Jed S. Rakoff of the United States District Court for the Southern District of New York, sitting by designation. 06-1746-cv M cInerney v. Renssela er P olytechnic Inst.

UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2

-------- 3 August Term, 2007 4 5 (Argued: September 27, 2007 Decided: October 15, 2007) 6 7 Docket No. 06-1746-cv 8
-----------------------------------------------------------X 9 JOSEPH P. McINERNEY, 10 11 Plaintiff-Appellant , 12 - v. - 13 RENSSELAER POLYTECHNIC INSTITUTE; 14 THE MECHANICAL AERONAUTICAL NUCLEAR 15 ENGINEERING DEPARTMENT OF RENSSELAER 16 POLYTECHNIC INSTITUTE (MANE); 17 MANE DEPARTMENT CHAIRMAN JOHN TICHY; 18 MANE GRADUATE COORDINATOR ANTOINETTE 19 MANIATTY; MANE PROFESSOR LEIK MYRABO; 20 MANE PROFESSOR KENNETH JANSEN, 21 22 Defendants-Appellees , * 23 -----------------------------------------------------------X 24 Before: McLAUGHLIN, RAGGI, Circuit Judges , and RAKOFF, DISTRICT 25 JUDGE . ** 26 272

Plaintiff appeals from the dismissal of his complaint by the 1 United States District Court for the Northern District of New 2 York (Hurd, J. ) for failure to exhaust administrative remedies. 3
VACATED AND REMANDED. 4
JOSEPH P. McINERNEY , Lowell, 5 Massachusetts, pro se , Plaintiff6 Appellant
. 7 8 MICHAEL E. GINSBERG, Pattison, 9 Sampson, Ginsberg & Griffin, P.C., 10 Troy, New York, for Defendants11 Appellees
. 12 13
PER CURIAM : 14 Joseph P. McInerney appeals from the dismissal of his 15 complaint by the United States District Court for the Northern 16 District of New York (Hurd, J. ) for failure to exhaust 17 administrative remedies. Because the district court erred in 18 concluding that McInerney had an obligation to present his claims 19 under Titles III and V of the Americans with Disabilities Act of 20 1990 (“ADA”), 42 U.S.C. § 12101 et seq. , to the Equal Employment 21 Opportunity Commission (“EEOC”) prior to suit, we VACATE the 22 district court’s judgment of dismissal and REMAND. 23 BACKGROUND 24 Joseph P. McInerney, pro se , who suffers from brain damage 25 and related symptoms as a result of a bacterial brain abscess , is 26 a Ph.D. candidate in the Mechanical Aeronautical Nuclear 27 Engineering (“MANE”) program at Rensselaer Polytechnic Institute 283

(“RPI”). He alleges that RPI and various professors and 1 administrators in the MANE program (collectively, “Defendants”) 2 failed to accommodate his disability and unlawfully retaliated 3 against him. 4 McInerney alleges that Professor Leik Myrabo, who was 5 McInerney’s thesis advisor, hired him as a research assistant in 6 August 2001. Although McInerney says that Myrabo promised 7 several times to pay McInerney for his research assistance, 8 Myrabo revealed in April 2002 that he was unable to compensate 9 McInerney even though he paid other graduate students who 10 performed research for him. Myrabo proposed an alternative job 11 for McInerney in California with one of his former students. 12 McInerney turned it down, however, because his poor health would 13 not allow him to travel so far. He alleges that Myrabo 14 retaliated by, among other things, delaying a letter of 15 recommendation and approval of a scholarship application. 16 Because of his difficulties with Professor Myrabo, McInerney 17 asked the MANE department to assign him a different thesis 18 advisor. The MANE department assigned Professor Kenneth Jansen, 19 but told McInerney that Jansen would not be responsible for 20 funding McInerney’s research. According to McInerney, Jansen 21 financially assisted other graduate students whom he advised. 22 In April 2003, McInerney failed his doctoral candidacy exam 23 because, he alleges, he was fatigued from his illness and was 244

asked “ill posed and unreasonable questions.” When McInerney 1 explained this to John Tichy, chairman of the MANE department, 2 and asked him to speak with the professors who administered the 3 exam, Tichy allegedly told McInerney to stop using his disability 4

as an excuse. 5 McInerney claims that he was denied further accommodations 6 between September 2003 and June 2004 when Professor Jansen 7 refused to provide McInerney with extra research assistance or 8 help McInerney find a tutor. In August 2004, the MANE department 9 also rejected McInerney’s request to be assigned another thesis 10 advisor. 11 In October 2005, McInerney brought this action, alleging 12 violations of Titles III and V of the ADA and Section 504 of the 13 Rehabilitation Act of 1973, 29 U.S.C. § 794. On March 24, 2006, 14 the district court dismissed the complaint in its entirety for 15 lack of jurisdiction because McInerney failed to exhaust his 16 claims with the EEOC or an appropriate state or local agency 17 prior to suit. 18 McInerney now appeals. 19
DISCUSSION 20 Although the district court suggested it lacked jurisdiction 21 over the case, its dismissal for failure to exhaust 22 administrative remedies is more properly characterized as a 23 dismissal for failure to state a claim pursuant to Federal Rule 245

of Civil Procedure 12(b)(6). See Fernandez v. Chertoff , 471 F.3d 1 45, 58 (2d Cir. 2006). “We review a district court’s dismissal 2 of a complaint pursuant to [Rule 12(b)(6)] de novo, accepting all 3 factual allegations in the complaint and drawing all reasonable 4 inferences in the plaintiff’s favor.” ATSI Commc’ns, Inc. v. 5 Shaar Fund, Ltd. , 493 F.3d 87, 98 (2d Cir. 2007). The need to 6 draw all inferences in the plaintiff’s favor has heightened 7 application when the plaintiff is proceeding pro se . See Bertin 8 v. United States , 478 F.3d 489, 491 (2d Cir. 2007). 9 Applying these standards, we agree with McInerney that the 10 district court erred in dismissing his complaint. His ADA claims 11 did not require administrative exhaustion. 12 Whether an ADA claim must first be presented to an 13 administrative agency depends on which precise title of the ADA 14 the claim invokes. Title I prohibits employers from 15 discriminating against disabled employees, see42 U.S.C. § 16 12112(a), while Title III forbids discrimination “on the basis of 17 disability in the full and equal enjoyment of the goods, 18 services, facilities, privileges, advantages, or accommodations 19 of any place of public accommodation,” id. § 12182(a). RPI, as a 20 “postgraduate private school,” is doubtless a place of public 21 accommodation. See id. § 12181(7)(J). Title V proscribes 22 retaliation because of a person’s opposition to any act or 23 practice that the ADA prohibits. See id. § 12203(a). 246

ADA Title I incorporates various provisions from Title VII 1 of the landmark Civil Rights Act of 1964. See id. § 12117(a) 2 (incorporating “[t]he powers, remedies, and procedures set forth 3 in [42 U.S.C.] sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 4 2000e-9"). One of these provisions, section 2000e-5, requires a 5 claimant to file a charge of employment discrimination with the 6 EEOC within 180 days after the discriminatory act. See id. § 7 2000e-5(e)(1). This administrative-exhaustion provision, 8 however, is not found in ADA Title III. Instead, ADA Title III 9 incorporates only § 2000a-3(a), see id. § 12188(a)(1), providing 10 for injunctive relief against certain discriminatory acts, see 11 id. § 2000a-3(a). Title V retaliation claims in the employment 12 context require the same procedures as those under Title I, while 13 retaliation claims relating to public accommodations follow Title 14 III procedures. See id. § 12203(c). Thus, if Title III does not 15 require administrative exhaustion, Title V claims predicated on 16 asserting one’s rights under Title III require no exhaustion 17 either. 18 The language and structure of the ADA demonstrate that Title 19 III, unlike Title I, does not require administrative exhaustion. 20 “[I]t is a general principle of statutory construction that when 21 Congress includes particular language in one section of a statute 22 but omits it in another section of the same Act, it is . . . 23 presumed that Congress acts intentionally and purposefuly . . . 247

.” Barnhart v. Sigmon Coal Co. , 534 U.S. 438, 452 (2002) 1 (internal quotation marks omitted). There is good reason to 2 conclude that Congress intentionally omitted the exhaustion 3 requirement for public-accommodations claims, as it would make 4 little sense to require a plaintiff challenging discrimination in 5 public accommodations to file a charge with the EEOC, an agency 6 with responsibility for and expertise in matters of employment 7 discrimination. See42 U.S.C. §§ 2000e-5(a)-(b). Accordingly, 8 we hold that there is no administrative-exhaustion requirement 9 for ADA Title III claims or Title V claims predicated on 10 asserting one’s rights under Title III. 11 In defending the judgment of dismissal, Defendants argue 12 that McInerney’s allegations concerning his work as a research 13 assistant arise under Title I. However, we need not resolve 14 whether such work qualifies as “employment” for purposes of the 15 ADA—a question not addressed by the district court—because the 16 complaint contains ample Title III-based allegations. For 17 example, McInerney alleges that Defendants failed: (1) to appoint 18 him an adequate thesis advisor, (2) to assist him with funding 19 for his research as they did for other students, (3) to provide 20 extra instruction or a tutor, and (4) to accommodate his 21 disability at or after his doctoral candidacy exam. The district 22 court therefore erred by dismissing McInerney’s ADA claims for 23 failure to exhaust administrative remedies. 248

Finally, McInerney’s brief on appeal challenges only the 1 dismissal of his ADA claims, making no mention of his claims 2 under Section 504 of the Rehabilitation Act of 1973. 3 Accordingly, we treat any possible challenge to the dismissal of 4 the latter claims as waived. See Norton v. Sam’s Club , 145 F.3d 5 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the 6 briefs are considered waived and normally will not be addressed 7 on appeal.”). 8 CONCLUSION 9 For the foregoing reasons, we VACATE the judgment of 10 dismissal and REMAND the case to the district court with 11 instructions to reinstate the complaint, limited to McInerney’s 12 ADA claims. The parties’ motions to accept and to strike 13 McInerney’s supplemental exhibits are DENIED as moot. 14