coverage in Bledsoe v. Palm Beach County Soil & Water

Conservation Dist., 133 F.3d 816 (11 Cir. 1998) and the Ninth
Circuit having rejected coverage in Zimmerman v. Oregon Dep't of
Justice, 170 F.3d 1169 (9 Cir. 1999), reh'g denied, 183 F.3d
1161 (9 Cir. 1999).

Two other caselaw references should be made in the interest
of completeness. In Staats v. County of Sawyer, 220 F.3d 511
(7 Cir. 2000) our own Court of Appeals eschewed deciding the
issue because it was not “squarely presented to us” (id. at 518),
after having noted the circuit split (citing only Bledsoe and
Zimmerman) as well as referring to differing decisions by
district courts within this Circuit. And the Supreme Court's

decision in Bd. of Tr. of Univ. of Ala. v. Garrett, 531 U.S. 356,

360 n.1 (2001) likewise refrained from addressing the issue,
stating in part:

Though the briefs of the parties discuss both sections
in their constitutional arguments, no party has briefed
the question whether Title II of the ADA, dealing with
the "services, programs, or activities of a public
entity,” 42 U.S.C. §12132, is available for claims of
employment discrimination when Title I of the ADA

expressly deals with that subject. See, e.g., Russello
v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78
L.Ed.2d 17 (1983) ("[W]here Congress includes particular

language in one section of a statute but omits it in
another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely
in the disparate inclusion or exclusion” (internal
quotation marks omitted)). The Courts of Appeals are
divided on this issue, compare Zimmerman v. Oregon
Dept. of Justice, 170 F.3d 1169 (C.A.9 1999), with

Bledsoe v. Palm Beach Cty. Soil & Water Conservation
Dist., 133 F.3d 816 (C.A.11 1998).


surely cannot be cited as having held that coverage exists.

2. Innovative Health Sys. Inc. v. City of White

Plains, 117 F.3d 37 (2d Cir. 1997) dealt not at all with an
employment situation, but rather with the question whether
Title II applied to zoning decisions by the City of White
Plains. For Jackson to point to that decision as providing
support, simply because the later Bledsoe case (discussed
hereafter) quoted some general language from Innovative
Health, 117 F.3d at 44-45 about Clause 2 being “a catch-all
phrase that prohibits all discrimination by a public entity,
regardless of the context,” represents an impermissible
bootstrap.

3. Davoll_ v. Webb, 194 F.3d 1116 (10% Cir. 1999) was
extremely careful not to decide the coverage question either
way (id. at 1128-30). Instead, then Chief Judge Stephanie
Seymour (who authored the opinion for the panel) referred to
the issue as “a difficult question that has split the
circuits” (id. at 1130) and concluded by finding that
noncoverage would not be a subject matter jurisdictional
flaw that would prevent consideration of the substantive
issues--an approach signaled by the Supreme Court in Steelco

v. Citizens for a Better Environment, 523 U.S. 83 (1998).

So what really exists in terms of actual decisions on the subject

is a 1-to-1 standoff, with the Eleventh Circuit having upheld


Both sides of the issue involve some major anomalies. For
example, as the strong dissent from the denial of rehearing in
Zimmerman (183 F.3d at 1161-69) has pointed out, the panel
opinion in that case had looked solely to the statute as
assertedly unambiguous on the subject, thus enabling the panel to
ignore some patently unambiguous legislative history that pointed
in the opposite direction, as well as disregarding the Department
of Justice's implementing regulations that have expressly applied
Title II to employment discrimination claims.* On the other side
of the coin, it certainly seems odd that Congress would condition
any public employee's invocation of ADA's Title I (which deals in
specific and detailed terms with employment discrimination
claims) on the employee's exhaustion of administrative remedies,
while at the same time Congress would give the same employee free
access to Title II--whose coverage of employment discrimination
claims, if it exists, is not nearly so explicit--without imposing
such a precondition.

What is thus called for at this point is a divination of

entrails, without even the benefit of an opaque pronouncement

* Writing this opinion has generated a sense of “old home
week” on the part of this Court. In its sojourns to other parts
of the country, sitting by designation as the invitee of other
Courts of Appeals, it has had occasion to sit with all three
judges who were on the Tenth Circuit panel in Davoll, with one of
the panel members (though not the author of the opinion) in
Zimmerman and with all three of the Ninth Circuit's judges who
dissented from the denial of rehearing in that case.

5


Minute Order Form (06/97)

United States District Court, Northern District of Illinois

f Assi i Sitting Judge if O
singe Magistrate Judge Milton I. Shadur than Assigned Judge
CASE NUMBER 02 C 3057 DATE 8/15/2002
CASE Vendetta Jackson vs. City of Chicago
TITLE

[In the following box (a) indicate the party filing the motion, e.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.]

MOTION:

DOCKET ENTRY:

(1) a Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

(3) a) Answer brief to motion due___. Reply to answer brief due.

(4) Qo Ruling/Hearing on__setfor__— sat.

(5) Oo Status hearing[held/continued to] {set for/re-set for]on___— setfor_— at

(6) im Pretrial conference[held/continued to] [set for/re-set for]on__—_ssetfor__—sat__
(7) Oo Trial[set for/re-set for] on___at

(8) im) [Bench/Jury trial] [Hearing] held/continued toa

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}

CUFRCP4(m) ClLocalRule 41.1 CIFRCP41(a)\(1) OC FRCP41(a)(2).

Notified counsel by telephone. AUG 16 2002

dateflogseted

Docketing to mail notices.

Mail AO 450 form. locas duty hal

Copy to judge/magistrate judge.
avis2002

(10) Mi [Otherdocketentry] Enter Memorandum Opinion and Order. Accordingly, City’s motion is denied
at this point, though it should be plain that this Court maintains an open mind on the subject and stands
ready to review the matter once again if changes in the landscape were to call for such further review. (5-
1)
(di) of [For further detail see order attached to the original minute order.]
No notices required, advised in open court. Document
. ‘Number
No notices required. umber of notices :
¥ | Notices maited by judge’s staff.

date mailed notice

courtroom
SN depuy’s x
initials

\Date/time received in:
central Clerk's Office nag dopey intial



from any Delphic oracle. One such entrail seems tantalizing,
though it seems to provide at most a hint of an answer (rather
than any definitive response) to the question: It may be noted
that the Garrett citation to and quotation from the Russello case
has repeated the identical citation and quotation that appear in
the Zimmerman panel opinion (170 F.3d at 1177) as one predicate
for giving a negative answer to the coverage issue.

With all of that being said, however, this Court is
reluctant to dispatch Jackson's case at this threshold stage.
This much-mooted issue is very much in flux, and it seems a real
possibility that more light will be cast on the subject by our
Court of Appeals or even by the Supreme Court in the near future.
Accordingly, City's motion is denied at this point, though it
should be plain that this Court maintains an open mind on the
subject and stands ready to review the matter once again if

changes in the landscape were to call for such further review.

Milton I. Shadur
Senior United States District Judge

Date: August 14, 2002


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
VENDETTA JACKSON,
Plaintiff,

v. No. 02 C 3057

D6CKE TED
AUG 16 20

CITY OF CHICAGO,

)
)
)
)
)
)
)
)
Defendant. )

MEMORANDUM OPINION AND ORDER

City of Chicago (“City”) has moved to dismiss the Complaint
brought against it by Vendetta Jackson (“Jackson”), who seeks to
assert rights under Title II of the Americans with Disabilities
Act (“ADA”) and under Section 504 of the Rehabilitation Act of
1973, 29 U.S.C. §794. Jackson has filed a responsive memorandum,
and one aspect of the motion is susceptible to current
disposition based on the parties' filings to this date.}

Jackson's Complaint Counts I and II look to ADA's Title II
as her claimed source of relief. But the availability of Title
II to address claims of disability-based employment
discrimination is a subject on which the courts have split. Here
is the relevant language of 42 U.S.C. §12132:

Subject to the provisions of this subchapter, no

qualified individual with a disability shall, by reason

of such disability, be excluded from participation in
or be denied the benefits of the services, programs, or

1 Because the other aspects of City's motion require some

further input from both sides' counsel, that subject will be
addressed during the previously scheduled August 16 status
hearing.


activities of a public entity, or be subjected to
discrimination by any such entity.’

On that score, Jackson Mem. 4-6 really distorts the analysis
by characterizing the various Court of Appeals' lineup on the
subject as 4 to 1 in favor of Title II's coverage of such
employment discrimination claims:

1. Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d 1261

(4TM Cir. 1995) does not discuss the question of such

coverage at all. Indeed, the absence of any discussion is

quite understandable, for the plaintiff there was a doctor
who was a neurosurgical resident in the third year of a six-
year training program--not quite an employee in the
conventional sense. But more importantly in terms of the
statutory language, the doctor in training as a resident
could readily be viewed as participating in and receiving

the benefits “of the services, programs or activities of a

public entity” (the University's hospital). And from that

perspective it would appear that he could look to Clause 1

for coverage.? But whether or not that is so, the case

2 [Footnote by this Court] For convenience in discussion,

the “be excluded from participation...” and “be denied the
benefits...” provisions will be referred to here as Clause 1,
while the “be subjected to discrimination...” provision will be

termed Clause 2.

3 Cases that have ruled affirmatively on the question of
coverage of employment discrimination claims under Title II have
uniformly disclaimed Clause 1 as the predicate for such coverage,
looking instead to the asserted catch-all provision of Clause 2.

2