* The Honorable Laura Taylor Swain, United States District

Judge for the Southern District of New York, sitting by

designation.

11-2215 

Mary Jo C. v. New York State and Local Retirement System et ano.

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 August Term, 2011

4 (Argued: May 3, 2012 Decided: January 29, 2013)

5 Docket No. 11-2215

6 -------------------------------------

7 MARY JO C.,

8 Plaintiff-Appellant,

9 - v -

10 NEW YORK STATE AND LOCAL RETIREMENT SYSTEM, CENTRAL ISLIP PUBLIC

11 LIBRARY,

12 Defendants-Appellees.

13 -------------------------------------

14 Before: SACK, RAGGI, Circuit Judges, and SWAIN, District

Judge.* 15

16

17 Appeal by the plaintiff from a judgment of the United

18 States District Court for the Eastern District of New York

19 (Sandra J. Feuerstein, Judge) dismissing the plaintiff's claims

20 pursuant to Federal Rules of Civil Procedure 12(b)(1) and

21 12(b)(6). The district court concluded principally that Title II

22 of the Americans with Disabilities Act does not require state

23 actors to violate state laws as a "reasonable modification" under

24 the Act, and that Title II does not apply to employment
2

1 discrimination. Because we conclude that Title II does, in some

2 circumstances, require reasonable departures from standards

3 established by state laws, we vacate the district court's

4 judgment of dismissal in that respect. Because we conclude,

5 based principally on the structure of the Americans with

6 Disabilities Act, that Title II does not apply to employment

7 discrimination, we affirm the district court's judgment of

8 dismissal of that claim. 

9 Affirmed in part; vacated and remanded in part.

10 WILLIAM M. BROOKS, Mental Disability Law

11 Clinic, Touro College, Jacob D.

12 Fuchsberg Law Center, Central Islip, NY,

13 for Plaintiff-Appellant.

14 CECELIA C. CHANG, Deputy Solicitor

15 General, (Barbara D. Underwood,

16 Solicitor General, Laura R. Johnson,

17 Assistant Solicitor General, of counsel,

18 on the brief), for Eric T. Schneiderman,

19 Attorney General of the State of New

20 York, New York, NY, for Defendant21 Appellee New York State and Local

22 Retirement System.

23 LAURA L. SHOCKLEY, (William M. Savino,

24 Harris J. Zakarin, on the brief), Rivkin

25 Radler LLP, Uniondale, NY, for

26 Defendant-Appellee Central Islip Public

27 Library.

28 SASHA SAMBERG-CHAMPION, (Jessica Dunsay

29 Silver, on the brief), Department of

30 Justice, Civil Rights Division,

31 Appellate Section, for Thomas E. Perez,

32 Assistant Attorney General, Washington,

33 DC, for Amicus Curiae United States

34 Department of Justice.

35 Jo Anne Simon, Jo Anne Simon P.C.,

36 Brooklyn, NY, for Amici Curiae

37 Disability Advocates, Inc., DRVT,

38 National Disability Rights Network, and
3

1 State of Connecticut Office of

2 Protection and Advocacy for Persons with

3 Disabilities.

4 SACK, Circuit Judge:

5 The plaintiff alleges that her job as a librarian at

6 the Central Islip Public Library (the "Library") was terminated

7 because of behavior symptomatic of her chronic mental illness. 

8 Although she alleges that she would have been eligible for

9 disability retirement benefits under New York State law, her

10 mental illness interfered with her ability to comply with New

11 York State law's strictly enforced filing deadline for those

12 benefits. When the New York State and Local Retirement System

13 (the "NYSLRS") rejected her request to waive the deadline, and

14 when the Library rejected her request to assist her in applying

15 or extending the deadline by reclassifying her termination as a

16 leave of absence, the plaintiff was denied those benefits. 

17 Thereafter, the plaintiff instituted this lawsuit in

18 the United States District Court for the Eastern District of New

19 York against the NYSLRS and the Library alleging, inter alia,

20 that the defendants' actions violated Title II of the Americans

21 with Disabilities Act ("ADA"), Pub. L. No. 101-336, 104 Stat.

22 327, 327-28 (1990), 42 U.S.C. §§ 12131, et seq. The district

23 court (Sandra J. Feuerstein, Judge) granted the defendants'

24 motion to dismiss because the court concluded principally that

25 Title II of the Americans with Disabilities Act does not require

26 modifications of mandatory requirements imposed by state laws,

27 and that Title II does not apply to employment discrimination.
4

1 For the reasons set forth below, the district court's

2 judgment of dismissal is vacated as to the plaintiff's Title II

3 claim against the NYSLRS. The case is remanded with instructions

4 to the district court to grant the plaintiff leave to amend her

5 complaint if she so wishes to allege facts supporting her claim

6 that she was disabled, and to attempt to state a claim invoking

7 the rule of Ex parte Young, 209 U.S. 123 (1908), and to conduct

8 further proceedings as warranted. The district court's judgment

9 of dismissal is affirmed as to the plaintiff's Title II claim

10 against the Library. The district court's decision to decline to

11 exercise supplemental jurisdiction over the plaintiff's state law

12 claims is vacated for reconsideration depending on the course of

13 the further proceedings contemplated by this opinion.

14 BACKGROUND

15 Because this is an appeal from the district court's

16 grant of the defendants' motion to dismiss, we state the facts as

17 drawn from the complaint of the plaintiff "Mary Jo C." --

18 "accepting all well-pleaded allegations in the complaint as true

19 and drawing all reasonable inferences in the plaintiff's favor,"

20 Bigio v. Coca–Cola Co., 675 F.3d 163, 169 (2d Cir. 2012)

21 (internal quotation marks and brackets omitted) –- and as drawn

22 from matters of which we may take judicial notice, see Tellabs,

23 Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)

24 ("[C]ourts must consider the complaint in its entirety, as well

25 as other sources . . . , in particular, documents incorporated
5

1 into the complaint by reference, and matters of which a court may

2 take judicial notice."); ATSI Commc'ns, Inc. v. Shaar Fund, Ltd.,

3 493 F.3d 87, 98 (2d Cir. 2007) ("[W]e may consider . . .

4 documents possessed by or known to the plaintiff and upon which

5 it relied in bringing the suit."). 

6 The plaintiff is a "57[-]year-old individual who has

7 suffered from mental illness since adolescence." Complaint ¶ 12,

8 Mary Jo C. v. New York State and Local Ret. Sys., No. 09 Cv. 5635

9 (E.D.N.Y. Dec. 23, 2009) ("Compl."). She was employed by various

10 Long Island libraries between 1986 and November 2006, becoming a

11 member of defendant NYSLRS in January 1988. Id. ¶¶ 13-14. While

12 working for the Library, her employment was terminated in

13 November 2006 "[a]s a result of behaviors that were symptomatic

14 of her mental illness." Id. ¶ 16. Her last day of work at the

15 Library was on or about November 12, 2006. Id. ¶ 17. After her

16 termination, "libraries in Suffolk County communicated among

17 themselves and agreed that [the plaintiff] should not be hired as

18 a librarian." Id. ¶ 40. The plaintiff asserts that because the

19 libraries "blackballed [her] from working in the public library

20 system in Suffolk County," "it is a virtual certainty that [she]

21 will never work again." Id. ¶¶ 40-41. 

22 In some circumstances, New York provides disability

23 retirement benefits for members of the NYSLRS who are "physically

24 or mentally incapacitated for the performance of gainful

25 employment." See N.Y. Ret. and Soc. Sec. Law § 605(b)(1),
6

1 (b)(3)(c). According to the Complaint, the plaintiff would have

2 been eligible for disability retirement benefits under New York

3 law had she filed an application with the NYSLRS within three

4 months of her last day of employment. Compl. ¶¶ 18-19. But she

5 "failed to recognize" the filing deadline "because of her mental

6 illness." Id. ¶ 20.

7 During the three-month period following her

8 termination, the plaintiff's brother spoke to an NYSLRS official,

9 who informed him that the Library could file an application on

10 the plaintiff's behalf. Id. ¶¶ 21-24. On or about February 11,

11 2007, the plaintiff's brother asked the Library to do so, but the

12 Library denied the request. Id. ¶¶ 25-26. The plaintiff's

13 brother then asked the Library to reclassify the plaintiff's

14 termination as an unpaid leave of absence, which would have

15 extended the time during which the plaintiff could file for

16 benefits, see N.Y. Ret. and Soc. Sec. Law § 605(b)(2), but the

17 Library refused to do that too. Compl. ¶¶ 27-29.

18 The plaintiff's condition improved in November 2007,

19 and she applied for disability retirement benefits. Id. ¶ 30. 

20 The NYSLRS denied the application because it was not filed within

21 three months of the plaintiff's last day of work. Id. ¶ 31. On

22 or about July 23, 2008, the plaintiff requested that the NYSLRS

23 waive the filing deadline as an accommodation under the ADA. The

24 NYSLRS did not respond. Id. ¶¶ 32-33. 
7

1 While awaiting the NYSLRS's response, the plaintiff's

2 brother received notice that the plaintiff could appeal the

3 denial of her disability retirement benefits application, and the

4 plaintiff did so. Id. ¶¶ 34-35. The NYSLRS argued before the

5 hearing officer that state law prohibited it from waiving the

6 filing deadline for any reason. Id. ¶ 36. The hearing officer

7 agreed, denying the plaintiff's appeal because there was no

8 "provision for an extension of the filing deadline" under the

9 applicable state statutes and regulations. Id. ¶¶ 37-38.

10 Thereafter, on December 23, 2009, the plaintiff brought

11 the instant action in the United States District Court for the

12 Eastern District of New York against the NYSLRS and the Library. 

13 The complaint alleges that (1) the NYSLRS violated the ADA by

14 failing to "provide a requested reasonable accommodation" by

15 waiving the filing deadline, (2) the Library violated the ADA and 

16 New York Executive Law section 296 by failing to file an

17 application on the plaintiff's behalf, and (3) the Library

18 violated the ADA and New York Executive Law section 296 by

19 failing to reclassify the plaintiff's termination as a leave of

20 absence. Id. ¶¶ 43-52. The plaintiff requested various

21 declaratory judgments, an injunction requiring the NYSLRS to

22 waive the filing deadline (or, if the court determined that an

23 injunction was inappropriate under the ADA, damages), and

24 attorney's fees and costs. Id. at pp. 10-12. 
8

1 Both defendants moved to dismiss the complaint pursuant

2 to Rule 12(b)(6); the NYSLRS also moved to dismiss pursuant to

3 Rule 12(b)(1), asserting that the plaintiff lacked standing and

4 that New York's sovereign immunity barred the plaintiff's claims. 

5 On May 5, 2011, the district court denied the NYSLRS's motion to

6 dismiss for lack of subject matter jurisdiction, concluding that

7 the plaintiff had standing to bring her claims. But the court

8 granted the NYSLRS's motion to dismiss because it concluded that

9 the plaintiff could not state a claim under Title II of the ADA,

10 and that the court therefore need not determine whether Congress

11 validly abrogated New York's sovereign immunity when it enacted

12 Title II. The court reasoned that (1) the filing deadline was an

13 essential eligibility requirement not subject to waiver under the

14 ADA, (2) the plaintiff's request for an accommodation was not

15 "reasonable" under the ADA because it would require the NYSLRS to

16 violate state law, and (3) the plaintiff did not allege facts

17 sufficiently plausible on their face to demonstrate, if proven,

18 that she was disabled within the meaning of Title II of the ADA. 

19 Mary Jo C. v. New York State and Local Ret. Sys., 2011 WL

20 1748572, 2011 U.S. Dist. LEXIS 49567 (E.D.N.Y. May 5, 2011). As

21 for the Library's motion to dismiss, the court concluded that the

22 plaintiff's Title II claims against the library failed because

23 her exclusive remedy against the Library was a claim under Title

24 I of the ADA, id. at *12, 2011 U.S. Dist. LEXIS 49567, at *39,

25 further noting that the plaintiff did not refute the Library's
9

1 contention that the plaintiff had not exhausted her

2 administrative remedies under Title I. id. at *12 n.11, 2011 U.S.

3 Dist. LEXIS 49567, at *39 n.11. The district court then declined

4 to exercise supplemental jurisdiction over the state-law claims,

5 and dismissed the complaint.

6 The plaintiff appeals. 

7 DISCUSSION

8 "We review de novo a district court's dismissal of a

9 complaint under Rule 12(b)(6), accepting all of the complaint's

10 factual allegations as true and drawing all reasonable inferences

11 in the plaintiffs' favor." Forest Park Pictures v. Universal

12 Television Network, Inc., 683 F.3d 424, 429 (2d Cir. 2012)

13 (citing Interpharm, Inc. v. Wells Fargo Bank, Nat'l Ass'n, 655

14 F.3d 136, 141 (2d Cir. 2011)). The complaint must state a claim

15 that is plausible on its face. Bell Atl. Corp. v. Twombly, 550

16 U.S. 544, 570 (2007). "A claim has facial plausibility when the

17 plaintiff pleads factual content that allows the court to draw

18 the reasonable inference that the defendant is liable for the

19 misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678

20 (2009). "[A] dismissal pursuant to Rule 12(b)(6) is, at bottom,

21 a declaration that the plaintiff's complaint and incorporated

22 materials are insufficient as a matter of law to support a claim

23 upon which relief may be granted." Halebian v. Berv, 644 F.3d

24 122, 130-31 (2d Cir. 2011).
10

1 I. ADA Title II Claims Against the NYSLRS

2 A. Sovereign Immunity

3 The NYSLRS moved to dismiss on the basis of New York

4 State's and the NYSLRS's sovereign immunity from suit. The

5 Eleventh Amendment to the United States Constitution provides

6 that "[t]he Judicial power of the United States shall not be

7 construed to extend to any suit in law or equity, commenced or

8 prosecuted against one of the United States by Citizens of

9 another State, or by Citizens or Subjects of any Foreign State." 

10 U.S. CONST. amend. XI. The Eleventh Amendment has been

11 interpreted as also barring suits in federal court against a

12 state brought by that state's own citizens. See Woods v. Rondout

13 Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir.

14 2006). Although NYSLRS is not itself a state, "[t]he immunity

15 recognized by the Eleventh Amendment extends beyond the states

16 themselves to 'state agents and state instrumentalities' that

17 are, effectively, arms of a state." Id. (quoting Regents of the

18 Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997)).

19 "Congress may abrogate the states' Eleventh Amendment

20 immunity when acting pursuant to [Congressional] authority under

21 Section [five] of the Fourteenth Amendment." Id. (citing U.S.

22 CONST. amend. XIV, § 5; Tennessee v. Lane, 541 U.S. 509, 518

23 (2004)). Congress has purported to abrogate the states'

24 sovereign immunity from claims brought against them under Title

25 II of the ADA. See 42 U.S.C. § 12202. However, the validity of
11

1 this abrogation depends on "whether Congress acted pursuant to a

2 valid grant of constitutional authority." Lane, 541 U.S. at 517

3 (internal quotation marks omitted). 

4 In United States v. Georgia, 546 U.S. 151 (2006), the

5 Supreme Court established a three-step process for analyzing

6 whether Congress has validly abrogated a state's sovereign

7 immunity from suit in the context of a particular Title II claim:

8 [A court must] determine . . . , on a

9 claim-by-claim basis, (1) which aspects of

10 the State's alleged conduct violated Title

11 II; (2) to what extent such misconduct also

12 violated the Fourteenth Amendment; and (3)

13 insofar as such misconduct violated Title II

14 but did not violate the Fourteenth Amendment,

15 whether Congress's purported abrogation of

16 sovereign immunity as to that class of

17 conduct is nevertheless valid.

18 Id. at 159. Thus, if a plaintiff cannot state a Title II claim,

19 the court's sovereign immunity inquiry is at an end. See

20 Buchanan v. Maine, 469 F.3d 158, 172–73 (1st Cir. 2006) ("If the

21 State's conduct does not violate Title II, the court does not

22 proceed to the next step in the [United States v. Georgia]

23 analysis. The claim ends.").

24 B. The "Reasonable Modification"

25 Requirement of Title II of the ADA

26 "The ADA was passed by large majorities in both Houses

27 of Congress [in 1990] after decades of deliberation and

28 investigation into the need for comprehensive legislation to

29 address discrimination against persons with disabilities." Lane,

30 541 U.S. at 516. "Congress found that 'individuals with

31 disabilities continually encounter various forms of
1

 The ADA "defines 'public entity' to include 'any State or

local government' and 'any department, agency, . . . or other

instrumentality of a State.'" United States v. Georgia, 546 U.S.

at 154 (quoting 42 U.S.C. § 12131(1)) (some internal quotation

marks omitted). 

12

1 discrimination, including outright intentional exclusion, the

2 discriminatory effects of architectural, transportation, and

3 communication barriers, overprotective rules and policies, [and]

4 failure to make modifications to existing facilities and

5 practices . . . .'" Crowder v. Kitagawa, 81 F.3d 1480, 1483 (9th

6 Cir. 1996) (alteration in original) (quoting 42 U.S.C. §

7 12101(a)(5)). The ADA aims "to provide a clear and comprehensive

8 national mandate for the elimination of discrimination against

9 individuals with disabilities." 42 U.S.C. §§ 12101(b)(1). "It

10 forbids discrimination against persons with disabilities in three

11 major areas of public life: employment, which is covered by Title

12 I of the statute; public services, programs, and activities,

13 which are the subject of Title II; and public accommodations,

14 which are covered by Title III." Lane, 541 U.S. at 516-17. 

15 "Title II of the ADA[,'Public Services,'] provides that

16 'no qualified individual with a disability shall, by reason of

17 such disability, be excluded from participation in or be denied

18 the benefits of the services, programs, or activities of a public

entity,[1] 19 or be subjected to discrimination by any such entity.'" 

20 United States v. Georgia, 546 U.S. at 153 (quoting 42 U.S.C.

21 § 12132). The statute "require[s] that covered entities make

22 reasonable accommodations in order to provide qualified
2 "We have previously made clear that 28 C.F.R.

§ 35.130(b)(7) was intended to implement 42 U.S.C. § 12131(2)." 

Hargrave, 340 F.3d at 38; see also infra note 5. 

13

1 individuals with an equal opportunity to receive benefits from or

2 to participate in programs run by such entities." Tsombanidis v.

3 West Haven Fire Dep't, 352 F.3d 565, 573 (2d Cir. 2003) (internal

4 quotation marks omitted). 

5 To prove a violation of Title II, a party

6 must therefore establish: (1) that he is a

7 "qualified individual" with a disability; (2)

8 that he was excluded from participation in a

9 public entity's services, programs or

10 activities or was otherwise discriminated

11 against by a public entity; and (3) that such

12 exclusion or discrimination was due to his

13 disability. 

14 Hargrave v. Vermont, 340 F.3d 27, 34–35 (2d Cir. 2003).

15 A "'qualified individual with a disability'"

16 is defined as "an individual with a

17 disability who, with or without reasonable

18 modifications to rules, policies, or

19 practices, the removal of architectural,

20 communication, or transportation barriers, or

21 the provision of auxiliary aids and services,

22 meets the essential eligibility requirements

23 for the receipt of services or the

24 participation in programs or activities

25 provided by a public entity." 

26 United States v. Georgia, 546 U.S. at 153-54 (quoting 42 U.S.C.

27 § 12131(2)). "A public entity shall make reasonable

28 modifications in policies, practices, or procedures when the

29 modifications are necessary to avoid discrimination on the basis

30 of disability, unless the public entity can demonstrate that

31 making the modifications would fundamentally alter the nature of

the service, program, or activity." 28 C.F.R. § 35.130(b)(7).2 32

33 "[A] defendant need not make an accommodation at all if the
14

1 requested accommodation 'would fundamentally alter the nature of

2 the service, program, or activity.'" Powell v. National Bd. of

3 Medical Examiners, 364 F.3d 79, 88 (2d Cir. 2004) (quoting 28

4 C.F.R. § 35.130(b)(7)).

5 Typically, "the determination of whether a particular

6 modification is 'reasonable' involves a fact-specific,

7 case-by-case inquiry that considers, among other factors, the

8 effectiveness of the modification in light of the nature of the

9 disability in question and the cost to the organization that

10 would implement it." Staron v. McDonald's Corp., 51 F.3d 353,

11 356 (2d Cir. 1995) (applying same standard in Title III case as

12 under Title II, see infra note 6). It is a factual issue

13 "whether [a] plaintiff['s] proposed modifications . . . amount to

14 'reasonable modifications' which should be implemented, or

15 'fundamental alterations,' which the state may reject." Crowder,

16 81 F.3d at 1485.

17 C. The District Court's Decision as to Whether 

18 the Plaintiff is a "Qualified Individual"

19 The district court began its analysis of whether the

20 plaintiff adequately alleged that she is a "qualified individual

21 with a disability" by observing that New York State courts have

22 interpreted a similar filing deadline provision as 

23 a condition precedent to the ripening of any

24 rights" or entitlement to disability

25 benefits, and have [concluded] that the

26 statutory filing period may [not] be extended

27 or waived by the State agency, even where the

28 applicant claims that the disability giving

29 rise to his or her claim for disability

30 benefits also rendered him incapable of
15

1 asserting his or her claim in a timely

2 manner. 

3 Mary Jo C., 2011 WL 1748572, at *8, 2011 U.S. Dist. LEXIS 49567,

4 at *24-*25 (citations and parenthetical description of cited

5 cases omitted). Relying on our statement in Henrietta D. v.

6 Bloomberg, 331 F.3d 261 (2d Cir. 2003), that the ADA's "use of

7 the term 'qualified' suggests that [courts] must look not to the

8 administration of the program for which the plaintiff is

9 qualified, but rather its formal legal eligibility requirements,"

10 id. at 277 (citing 42 U.S.C. §§ 12131–32), the court reasoned

11 that because the filing deadline is deemed a condition precedent

12 to eligibility under state law, the "plaintiff seeks a waiver of

13 an essential eligibility requirement for receipt of disability

14 benefits under [New York law], which the State courts have

15 determined the State defendant is without authority to grant." 

16 Mary Jo C., 2011 WL 1748572, at *9, 2011 U.S. Dist. LEXIS 49567,

17 at *27.

18 The district court then concluded that, unlike

19 requiring "reasonable modification of the State defendant's own

20 rules, policies or practices over which it has discretion,"

21 "[r]equiring the State defendant to violate state law is not a

22 reasonable accommodation as a matter of law." Id., 2011 U.S.

23 Dist. LEXIS 49567, at *27. For this proposition, the court

24 relied principally on Herschaft v. New York Board of Elections,

25 No. 00 CV 2748, 2001 WL 940923, 2001 U.S. Dist. LEXIS 11801

26 (E.D.N.Y. Aug. 13, 2001) (denominated "NOT FOR PUBLICATION"),
16

1 aff'd on other grounds, 37 F. App'x 17 (2d Cir. 2002) (summary

2 order), in which the court rejected a pro se plaintiff's

3 requested modification of New York State's deadline for gathering

4 signatures for an election nominating petition. Id. at *1, 2001

5 U.S. Dist. LEXIS 11801, at *1. The Herschaft court opined,

6 without citation to authority, that 

7 [A] two- to three-week extension[,] . . .

8 although not excessive in scope, is

9 unreasonable simply because it would require

10 the Board of Elections to violate a state

11 statute requiring that signatures for

12 independent nominating petitions be gathered

13 and submitted within a certain time

14 frame. . . . The Board of Elections has no

15 statutory authority to waive the requirement. 

16 It is the Court's opinion that an

17 accommodation that would require a defendant

18 to violate an otherwise constitutional state

19 law is inherently unreasonable.

20 

21 Id. at *6, 2001 U.S. Dist. LEXIS 11801, at *18-*19 (footnote

22 omitted). The district court also cited Aughe v. Shalala, 885 F.

23 Supp. 1428 (W.D. Wash. 1995), which reasoned that modification of

24 a federal statutory age requirement "would essentially rewrite

25 the statute, [so] it must be seen as a fundamental alteration in

26 the nature of the program," id. at 1432. 

27 D. Analysis

28 1. Whether the Filing Deadline is an Essential

29 Eligibility Requirement. With respect to Title II's requirement

30 that a "qualified individual" meet the "essential eligibility

31 requirements" of a covered program, the district court apparently

32 concluded that so long as a mandatory eligibility requirement is

33 set by a state statute, it will be an "essential eligibility
17

1 requirement," and any modification of it will work a "fundamental

2 alteration" of the program. On appeal, the NYSLRS argues that

3 "Title II does not require waiver of the essential eligibility

4 requirements for state programs or receipt of state benefits,"

5 NYSLRS Br. 13-14, and construes our opinion in Henrietta D. as

6 deciding that "to state a reasonable modification claim under the

7 ADA, the plaintiff must meet the 'formal legal eligibility

8 requirements' for benefits or services," id. at 14 (quoting

9 Henrietta D., 331 F.3d at 277).

10 At the outset, we note that the portion of Henrietta D.

11 cited by the district court and by NYSLRS arose in an entirely

12 different setting from that presented by this case. There, the

13 state defendant argued that it should be permitted to rebut the

14 plaintiffs' prima facie Title II claim by showing that "the

15 plaintiffs are no less successful in gaining access to benefits

16 than the non-disabled. Such a showing would suggest an

17 alternative reason for the plaintiffs' low rate of obtaining

18 benefits: systemic problems that create obstacles to access for

19 everyone." Henrietta D., 331 F.3d at 277. The issue we

20 confronted was the meaning of the term "benefits" in the

21 statutory command that "no qualified individual with a disability

22 shall, by reason of such disability, be excluded from

23 participation in or be denied the benefits of the services,

24 programs, or activities of a public entity." 42 U.S.C. § 12132;

25 see 331 F.3d at 277. 
18

1 We concluded that the ADA "plainly define[s] benefits

2 by reference to a plaintiff's facial legal entitlements." 

3 Henrietta D., 331 F.3d at 277. We reasoned further that "[t]he

4 statute's use of the term 'qualified' suggests that we must look

5 not to the administration of the program for which the plaintiff

6 is qualified, but rather its formal legal eligibility

7 requirements." Id. In context, these statements cannot properly

8 be read to define "essential eligibility requirements" as all

9 "formal legal eligibility requirements." That issue was not

10 before the Henrietta D. court. The only question there was

11 whether the term "benefits" referred to the public program as it

12 was in fact administered, or the program as it was intended to

13 operate by law. See id. Although it looked to the statute's use

14 of the term "qualified" and the regulations' use of the phrase

15 "essential eligibility requirements" in order to construe the

16 statutory term "benefits," id. at 277-78, the Henrietta D. Court

17 did not construe the phrase "essential eligibility requirement"

18 itself. We thus did not determine there that the phrase

19 "essential eligibility requirements" as it is used in 42 U.S.C.

20 § 12131(2) necessarily means a program's "formal legal

21 eligibility requirements." Because Henrietta D. did not resolve

22 the issue before us, we must construe the relevant statutory

23 language in the first instance. 

24 Of course, "[s]tatutory analysis necessarily begins

25 with the plain meaning of a law's text and, absent ambiguity,

26 will generally end there." Bustamante v. Napolitano, 582 F.3d
19

1 403, 406 (2d Cir. 2009) (internal quotation marks omitted). At

2 the outset, then, we "review the statutory text, considering the

3 ordinary or natural meaning of the words chosen by Congress, as

4 well as the placement and purpose of those words in the statutory

5 scheme." United States v. Aguilar, 585 F.3d 652, 657 (2d Cir.

6 2009) (internal quotation marks omitted). Here, the relevant

7 text defines a qualified individual as 

8 an individual with a disability who, with or

9 without reasonable modifications to rules,

10 policies, or practices, the removal of

11 architectural, communication, or

12 transportation barriers, or the provision of

13 auxiliary aids and services, meets the

14 essential eligibility requirements for the

15 receipt of services or the participation in

16 programs or activities provided by a public

17 entity.

18 42 U.S.C. § 12131(2) (emphases added). The text thus

19 distinguishes between two categories of requirements: (1) rules,

20 policies, or practices, which are subject to the requirement of

21 reasonable modification, and (2) essential eligibility

22 requirements, which are not.

23 The fact that Congress provided that "rules, policies,

24 or practices" would be subject to reasonable modification, and

25 contrasted this flexibility with the requirement that a qualified

26 individual meet the "essential eligibility requirements" of a

27 program within the same sentence suggests that Congress meant

28 these categories to have different meanings. "Generally,

29 identical words used in different parts of the same statute are

30 presumed to have the same meaning. But where, as here, Congress
20

1 uses certain language in one part of the statute and different

2 language in another, the court assumes different meanings were

3 intended." Cruz-Miguel v. Holder, 650 F.3d 189, 196 (2d Cir.

4 2011) (citations and internal quotation marks omitted). 

5 Courts have therefore reasoned that essential

6 eligibility requirements, unlike "rules, policies, [and]

7 practices," 42 U.S.C. § 12131(2), are not subject to reasonable

8 modification or waiver. See Pottgen v. Missouri State High

9 School Activities Ass'n, 40 F.3d 926, 930 (8th Cir. 1994)

10 (observing that when an individual cannot meet an eligibility

11 requirement determined to be essential, "the only possible

12 accommodation is to waive the essential requirement itself. . . . 

13 [But] [w]aiving an essential eligibility standard would

14 constitute a fundamental alteration in the nature of the . . .

15 program [at issue].") (footnote omitted); cf. PGA Tour, Inc. v.

16 Martin, 532 U.S. 661, 689 (2001) ("[T]he waiver of an essential

17 rule of [a golf] competition for anyone [under Title III of the

18 ADA] would fundamentally alter the nature of [the]

19 tournaments."). 

20 "[O]ne of the most basic interpretive canons[ is] that

21 a statute should be construed so that effect is given to all its

22 provisions, so that no part will be inoperative or superfluous,

23 void or insignificant." Corley v. United States, 556 U.S. 303,

24 314 (2009) (internal quotation marks and alteration omitted); see

25 also Duncan v. Walker, 533 U.S. 167, 174 (2001) ("It is our duty

26 to give effect, if possible, to every clause and word of a
21

1 statute." (internal quotation marks omitted)). In light of the

2 fact that Congress used the phrases "rules, policies, and

3 practices" and "essential eligibility requirements" as two

4 distinct categories, the application of this canon of statutory

5 construction presents a fundamental obstacle to construing

6 "essential eligibility requirements" to mean all "formal legal

7 eligibility requirements," as the district court did and as the

8 NYSLRS would have us do too.

9 The statute uses the phrase "essential eligibility

10 requirements," not simply "eligibility requirements." Had

11 Congress intended "all formal legal eligibility requirements" to

12 be non-waivable, the phrase "eligibility requirements" would have

13 sufficed; it would have been unnecessary to use the phrase

14 "essential eligibility requirements." Title II applies to the

15 "services, programs, or activities of a public entity," 42 U.S.C.

16 § 12132, which, being public, will typically define their

17 eligibility requirements wholly by applicable legal requirements. 

18 That is the case here –- all the relevant eligibility

19 requirements for participation in the program are set by law. If

20 "essential eligibility requirements" meant "all formal legal

21 eligibility requirements," every eligibility requirement would be

22 "essential" and non-waivable, impermissibly rendering the word

23 "essential" superfluous. Therefore, the term "essential
3 NYSLRS argues that the "rules, policies, [and] practices"

subject to reasonable modification under Title II do not include

state statutes. See NYSLRS Br. 19 ("Title II . . . requires

reasonable modification only of 'rules, policies, or

practices' –- not state statutes."). Our decision in Hargrave

indicates, however, that the phrase "rules, policies, or

practices" is not to be read so narrowly. There, the district

court had found a Vermont statute to facially discriminate

against individuals with mental illnesses when it allowed medical

professionals to petition courts to invalidate durable powers of

attorney executed by the mentally ill. 340 F.3d at 31-32. 

Vermont argued that enjoining execution of the statute "would

fundamentally alter programs of civil commitment in Vermont." 

Id. at 37 (internal quotation marks omitted). 

In rejecting this argument, we first observed that the

relevant regulations required "'reasonable modifications in

policies [or] practices' in order to avoid discrimination unless

the modifications would constitute a fundamental alteration to

the relevant 'service, program, or activity.'" Id. at 38

(quoting 28 C.F.R. § 35.130(b)(7)). We noted that this language

"mirrors" and "implement[s]" the definition of a "qualified

individual with a disability" as "'an individual who, with or

without reasonable modifications to rules, policies, or

practices . . . meets the essential eligibility requirements

for . . . participation in programs or activities provided by a

public entity.'" Id. (quoting 42 U.S.C. § 12131(2)). We

rejected Vermont's fundamental alteration argument because

"Defendants have failed even to assert clearly, much less show,

that the injunction issued by the District Court would

fundamentally alter Vermont's program authorizing and enforcing

[durable powers of attorney]." Id. By implication, the Hargrave

court discussed the relevant injunction of the state statute as a

"reasonable modification[] to rules, policies, or practices,"

which did not constitute a "fundamental alteration" of the

program. Id. Hargrave thus casts doubt on the state's argument

that the phrase "rules, policies, and practices" never includes

state statutes.

22

1 eligibility requirements" does not refer to all formal legal

eligibility requirements.3 2

3 Cases interpreting the "essential eligibility

4 requirement" language indicate that whether an eligibility

5 requirement is essential is determined by consulting the

6 importance of the requirement to the program in question. See,
4 Pottgen's analysis of the importance of the age

requirement is drawn from the Eighth Circuit's discussion of

claims under section 504 of the Rehabilitation Act of 1973. "The

Rehabilitation Act of 1973 establishes a comprehensive federal

program aimed at improving the lot of the handicapped. Among its

purposes are to 'promote and expand employment opportunities in

the public and private sectors for handicapped individuals and

place such individuals in employment.'" Consolidated Rail v.

Darrone, 465 U.S. 624, 626 (1984) (quoting 29 U.S.C. § 701(8)),

superseded by statute on other grounds as stated in DeVargas v.

Mason & Hanger-Silas Mason Co., 911 F.2d 1377, 1383-84 (10th Cir.

1990). Section 504 of the Rehabilitation Act provides that "[n]o

otherwise qualified individual with a disability . . . shall,

solely by reason of her or his disability, be excluded from the

participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal

financial assistance or under any program or activity conducted

by any Executive agency . . . ." Rehabilitation Act § 504, 29

U.S.C. § 794. 

Although the Eighth Circuit was discussing claims under

section 504 of the Rehabilitation Act, the Pottgen court largely

23

1 e.g., Pottgen, 40 F.3d at 930 ("[T]o determine whether [the

2 plaintiff] is a 'qualified individual' under [Title II of] the

3 ADA, we must first determine whether the age limit is an

4 essential eligibility requirement by reviewing the importance of

5 the requirement to the interscholastic baseball program [at

6 issue]."); id. at 929 (deciding that high school baseball

7 program's age limit was essential because "[a]n age limit helps

8 reduce the competitive advantage flowing to teams using older

9 athletes; protects younger athletes from harm; discourages

10 student athletes from delaying their education to gain athletic

11 maturity; and prevents over-zealous coaches from engaging in

12 repeated red-shirting to gain a competitive advantage. These

13 purposes are of immense importance in any interscholastic sports

program.").4 14 
adopted its reasoning as to the Rehabilitation Act claims when it

analyzed the Title II claims in the case before it. See 40 F.3d

at 930-31. Other courts have looked to Rehabilitation Act

precedent in deciding cases under Title II of the ADA because

Congress intended that the ADA mirror the requirements of the

Rehabilitation Act. See Henrietta D., 331 F.3d at 272

("[A]lthough there are subtle differences between these

disability acts, the standards adopted by Title II of the ADA for

State and local government services are generally the same as

those required under section 504 of [the Rehabilitation Act] of

federally assisted programs and activities. Indeed, unless one

of those subtle distinctions is pertinent to a particular case,

we treat claims under the two statutes identically." (internal

quotation marks, brackets, and citations omitted)). 

5

 "[T]he Attorney General, at the instruction of Congress,

has issued an implementing regulation that outlines the duty of a

public entity to accommodate reasonably the needs of the disabled

[under Title II]." Wisconsin Cmty. Servs., Inc. v. City of

Milwaukee, 465 F.3d 737, 750-51 (7th Cir. 2006) (en banc)

(footnote omitted). "We have previously made clear that 28

C.F.R. § 35.130(b)(7) was intended to implement 42 U.S.C. §

12131(2)." Hargrave, 340 F.3d at 38. "The Supreme Court never

has decided whether these regulations are entitled to the degree

of deference described in Chevron, U.S.A. Inc. v. National

Resource Defense Council, Inc., 467 U.S. 837, 844 (1984). 

Nevertheless, the Court has said that, '[b]ecause the Department

of Justice is the agency directed by Congress to issue

regulations implementing Title II[,] . . . its views warrant

respect.'" Wisconsin Cmty. Servs., 465 F.3d at 751 n.10 (quoting

Olmstead v. L.C., 527 U.S. 581, 597-98 (1999)). 

24

1 This reading is reenforced by the regulations

implementing5 2 the relevant section of the ADA, which require "[a]

3 public entity [to] make reasonable modifications in policies,

4 practices, or procedures when the modifications are necessary to

5 avoid discrimination on the basis of disability, unless the

6 public entity can demonstrate that making the modifications would

7 fundamentally alter the nature of the service, program, or

8 activity." 28 C.F.R. § 35.130(b)(7). The regulations indicate

9 that "essential eligibility requirements" are those requirements
6 Title III provides that "[n]o individual shall be

discriminated against on the basis of disability in the full and

equal enjoyment of the goods, services, facilities, privileges,

advantages, or accommodations of any place of public

accommodation by any person who owns . . . or operates a place of

public accommodation." 42 U.S.C. § 12182(a). Courts have read

the requirements of Title II and Title III as being consistent

with each other:

The House Committee on Education and Labor

indicated that Title II's prohibitions are to

be "identical to those set out in the

applicable provisions of titles I and III of

this legislation." H.R. Rep. No.

101–485(II), at 84 (1990), reprinted in 1990

U.S.C.C.A.N. 303, 367. More specifically,

the House Report on the ADA states that the

prohibitions of discrimination on the basis

of association from Titles I and III should

be incorporated in the regulations

implementing Title II. Id.; H.R. Rep. No.

485(III), at 51 (1990), reprinted in 1990

U.S.C.C.A.N. 445, 474; see also Kinney v.

Yerusalim, 9 F.3d 1067, 1073 n.6 (3d Cir.

1993) (legislative history indicates that

25

1 without which the "nature" of the program would be "fundamentally

2 alter[ed]." Id. These terms seem to us clearly to contemplate

3 that some relatively minor eligibility requirements, even if set

4 by statute, will not be deemed essential because they will not be

5 necessary to prevent the fundamental alteration of the program's

6 nature.

7 The Supreme Court's decision in PGA Tour, Inc. v.

8 Martin, 532 U.S. 661 (2001), further illustrates the point. The

9 plaintiff in Martin was a professional golfer with a disability

10 that prevented him from walking an 18-hole golf course. Id. at

11 668-69. He requested permission to use a golf-cart in

12 contravention of the PGA's rules as a reasonable accommodation

under Title III of the ADA,6 13 and the PGA defended on the basis
Titles II and III are to be read

consistently).

Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d

37, 47 (2d Cir. 1997), recognized as superseded on other grounds

by Zervos v. Verizon New York, Inc., 252 F.3d 163, 171 n.7 (2d

Cir. 2001). "Congress clearly did not intend to give public

entities more latitude than private parties to discriminate

against the disabled." Theriault v. Flynn, 162 F.3d 46, 53 n.10

(1st Cir. 1998); see also Bartlett v. New York State Bd. of Law

Examiners, 226 F.3d 69, 78 n.2 (2d Cir. 2000) ("In the context of

this case, title II and title III of the ADA impose largely the

same requirements . . . ."). Therefore, relevant cases

interpreting Title III, such as Martin, are instructive here. 

26

1 that allowing use of the golf-cart would work a fundamental

2 alteration in the nature of the tournament. Id. at 670-71. 

3 The Court began its analysis by observing two ways in

4 which a modification of the PGA's rules might fundamentally alter

5 the tournament:

6 It might alter such an essential aspect of

7 the game of golf that it would be

8 unacceptable even if it affected all

9 competitors equally; changing the diameter of

10 the hole from three to six inches might be

11 such a modification. Alternatively, a less

12 significant change that has only a peripheral

13 impact on the game itself might nevertheless

14 give a disabled player, in addition to access

15 to the competition as required by Title III,

16 an advantage over others and, for that

17 reason, fundamentally alter the character of

18 the competition.

19 Id. at 682-83 (footnote omitted).

20 The Court reasoned that "the use of carts is not itself

21 inconsistent with the fundamental character of the game of golf"

22 because "the essence of the game [is] shotmaking –- using clubs

23 to cause a ball to progress from the teeing ground to a hole some

24 distance away with as few strokes as possible." Id. at 683. It
27

1 therefore concluded that "the walking rule is at best peripheral

2 to the nature of [the PGA's] athletic events, and thus it might

3 be waived in individual cases without working a fundamental

4 alteration." Id. at 689; see also id. at 690 ("A modification

5 that provides an exception to a peripheral tournament rule

6 without impairing its purpose cannot be said to 'fundamentally

7 alter' the tournament."). The PGA's argument to the contrary

8 that "all the substantive rules for its . . . competitions are

9 sacrosanct and cannot be modified under any circumstances [was

10 for that reason] effectively a[n] [incorrect] contention that it

11 is exempt from Title III's reasonable modification requirement." 

12 Id. at 689. But "Congress intended that an entity like the

13 PGA . . . carefully weigh the purpose, as well as the letter, of

14 the rule before determining that no accommodation would be

15 tolerable." Id. at 691. 

16 Rather than simply deferring to the entity providing

17 the service in question, deeming the rules as set by that entity

18 as "sacrosanct," id. at 689, and construing any modification of

19 those rules as a fundamental alteration in the nature of the

20 service, the Martin Court undertook an independent analysis of

21 the importance of a rule for the service in light of the

22 service's purpose to determine whether a requested modification

23 would fundamentally alter its nature. Similarly here, we read

24 the ADA to require us to analyze the importance of an eligibility

25 requirement for a public program or benefit, rather than to defer

26 automatically to whatever "formal legal eligibility requirements"
7

 Our citation to Martin should in no way be construed as

conflating the status of the states' sovereign function of lawmaking with that of a private entity's rule-making. But Martin

persuasively indicates, along with the other considerations

discussed, that Title II should not be construed to require

automatic deference to a program's formal legal eligibility

requirements, however minor they may be. 

28

1 may exist, no matter how unimportant for the program in question

they may be.7 2

3 And, perhaps most fundamentally, reading "essential

4 eligibility requirements" to mean all formal legal eligibility

5 requirements seems to us to run counter to the ADA's broad

6 remedial purpose by allowing states to insist that whatever legal

7 requirements they may set are never subject to reasonable

8 modification under Title II of the ADA. Were we to adopt such a

9 construction of the ADA, the class of "rules, policies, or

10 practices" subject to reasonable modification under Title II

11 would be vanishingly small, and nearly all eligibility

12 requirements for the receipt of public services would be non13 waivable "essential" eligibility requirements. 

14 "In the ADA, Congress provided [a] broad mandate" to

15 "effectuate its sweeping purpose[ to] . . . forbid[]

16 discrimination against disabled individuals in major areas of

17 public life, [including] . . . public services . . . ." Id. at

18 675. "As a remedial statute, the ADA must be broadly construed

19 to effectuate its purpose of providing a clear and comprehensive

20 national mandate for the elimination of discrimination against

21 individuals with disabilities." Noel v. New York City Taxi and
29

1 Limousine Comm'n, 687 F.3d 63, 68 (2d Cir. 2012) (internal

2 quotation marks omitted). To adopt the NYSLRS's construction

3 would be to render Title II effectively impotent, which would be

4 contrary to the broad remedial purpose of the ADA –- an act that

5 "has been described as 'a milestone on the path to a more decent,

6 tolerant, progressive society.'" Martin, 532 U.S. at 675

7 (quoting Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S.

8 356, 375 (2001) (Kennedy, J., concurring)). 

9 Finally, here, as the plaintiff and the amici point

10 out, New York State already waives or extends the filing deadline

11 for disability retirement benefits for certain classes of

12 individuals: For example, an NYSLRS member on unpaid medical

13 leave may file an application within a year after termination of

14 employment, see N.Y. Ret. and Soc. Sec. Law § 605(b)(2), and an

15 NYSLRS member with "a qualifying World Trade Center condition"

16 faces no deadline whatsoever, see id. The fact that the State

17 itself waives the deadline in the enumerated circumstances

18 strongly suggests that the filing deadline is not "essential." 

19 Cf. Martin, 532 U.S. at 685 ("[T]he walking rule is not an

20 indispensable feature of tournament golf either. [The PGA]

21 permits golf carts to be used [by non-disabled golfers] in

22 [several of its tournaments other than the one in question]."). 

23 At this stage, it cannot be said as a matter of law that the

24 filing deadline is an essential eligibility requirement, and

25 therefore dismissal is inappropriate because it is not clear from

26 the face of the complaint that the plaintiff's allegations are
30

1 "insufficient as a matter of law to support a claim upon which

2 relief may be granted." Halebian, 644 F.3d at 131. 

3 As the plaintiff points out, "[t]his Court has not yet

4 established a broad rule defining when requirements imposed by a

5 state or local government constitute 'essential eligibility

6 requirements' of a program [so] as to render an individual

7 eligible for protection under Title II of the ADA." Pl.'s Reply

8 Br. 4. Cf. Parker v. Universidad de Puerto Rico, 225 F.3d 1, 4

9 (1st Cir. 2000) ("Although Title II of the ADA took effect on

10 January 26, 1992, [as of August 2000,] there [was] sparse

11 case[]law interpreting its scope and limits." (footnote

12 omitted)). But we need not do so today. In the posture of this

13 appeal, it is sufficient to conclude that the district court's

14 view that the ADA's reference to "essential eligibility

15 requirements" necessarily refers to each and every formal legal

16 eligibility requirement imposed for participation in a public

17 program or benefit is mistaken. In the context of a motion to

18 dismiss, we ask only whether the complaint states a claim that is

19 in this regard plausible on its face. Twombly, 550 U.S. at 570. 

20 For the foregoing reasons, we conclude that it does.

21 2. Whether Waiving the Filing Deadline Would be a

22 Reasonable Modification. The district court also concluded that

23 "[r]equiring the State defendant to violate state law is not a

24 reasonable accommodation as a matter of law." Mary Jo C., 2011

25 WL 1748572, at *9, 2011 U.S. Dist. LEXIS 49567, at *27. The

26 court's construction of the term "reasonable modification" thus
31

1 provided another ground upon which it granted the NYSLRS's motion

2 to dismiss. As a matter of both statutory construction and

3 federal preemption, we must inquire whether Congress, when it

4 enacted Title II's reasonable modification provision, intended to

5 require modification of state laws under certain circumstances,

6 thereby preempting them, or whether it instead intended the

7 reasonable modification provision to stop short of encroaching on

8 state laws. See, e.g., DiFiore v. American Airlines, Inc., 646

9 F.3d 81, 85 (1st Cir. 2011) ("[F]ederal preemption[] is a

10 question of statutory construction . . . ."). 

11 Under the United States Constitution's Supremacy

12 Clause, the "Constitution, and the Laws of the United States

13 which shall be made in Pursuance thereof . . . shall be the

14 supreme Law of the Land; . . . any Thing in the Constitution or

15 Laws of any State to the Contrary notwithstanding." U.S. Const.

16 art. VI, cl. 2. "Under the doctrine of federal preemption,

17 'state laws that conflict with federal law are without effect.'" 

18 Niagara Mohawk Power Corp. v. Hudson River-Black River Regulating

19 Dist., 673 F.3d 84, 94 (2d Cir. 2012) (quoting Altria Grp. Inc.

20 v. Good, 555 U.S. 70, 76, (2008)). "[T]he purpose of Congress is

21 the ultimate touchstone of pre-emption analysis." Cipollone v.

22 Liggett Grp., Inc., 505 U.S. 504, 516 (1992) (internal quotation

23 marks omitted). "Absent clear congressional intent to the

24 contrary, federal preemption of state law is not favored . . . ." 

25 Marsh v. Rosenbloom, 499 F.3d 165, 177-78 (2d Cir. 2007).
32

1 "Congress may manifest its intent to preempt

2 state or local law explicitly, through the

3 express language of a federal statute, or

4 implicitly, through the scope, structure, and

5 purpose of the federal law." [N.Y. SMSA Ltd.

6 P'ship v. Town of] Clarkstown, 612 F.3d [97,

7 104 (2d Cir. 2010)]. Thus, preemption "may

8 be either express or implied, and is

9 compelled whether Congress' command is

10 explicitly stated in the statute's language

11 or implicitly contained in its structure and

12 purpose." Shaw v. Delta Air Lines, Inc., 463

13 U.S. 85, 95 (1983) (internal quotation marks

14 omitted).

15 Niagara Mohawk Power Corp., 496 F.3d at 95.

16 "[T]he ADA does not contain an express preemption

17 provision . . . ." Rubietta v. National R.R. Passenger Corp.,

18 No. 08 Civ. 7117, 2012 WL 345909, at *4, 2012 U.S. Dist. LEXIS

19 12047, at *10 (N.D. Ill. Jan 30, 2012). "Courts have recognized

20 two types of implied preemption: (1) field preemption, where

21 Congress has manifested an intent to 'occupy the field' in a

22 certain area . . . ; and (2) conflict preemption, where state law

23 'actually conflicts with federal law.'" Niagara Mohawk Power

24 Corp., 673 F.3d at 95 (quoting English v. Gen. Elec. Co., 496

25 U.S. 72, 79 (1990)). 

26 "An actual conflict between state and federal law

27 exists when compliance with both federal and state regulations is

28 a physical impossibility, or when state law is an obstacle to the

29 accomplishment and execution of the full purposes and objectives

30 of Congress." Marsh, 499 F.3d at 177 (internal quotation marks

31 and citations omitted). An actual conflict also exists "where

32 federal law is in 'irreconcilable conflict' with state law." 
33

1 Levitin v. PaineWebber, Inc., 159 F.3d 698, 705 (2d. Cir. 1998)

2 (quoting Barnett Bank v. Nelson, 517 U.S. 25, 31 (1996)). 

3 [W]hen the question is whether a Federal act

4 overrides a state law, the entire scheme of

5 the statute must of course be considered and

6 that which needs must be implied is of no

7 less force than that which is expressed. If

8 the purpose of the act cannot otherwise be

9 accomplished -- if its operation within its

10 chosen field else must be frustrated and its

11 provisions be refused their natural effect --

12 the state law must yield to the regulation of

13 Congress within the sphere of its delegated

14 power.

15 Crosby v. National Foreign Trade Council, 530 U.S. 363, 373

16 (2000) (quoting Savage v. Jones, 225 U.S. 501, 533 (1912)). 

17 "What is a sufficient obstacle is a matter of judgment, to be

18 informed by examining the federal statute as a whole and

19 identifying its purpose and intended effects." Id.

20 "Since preemption claims turn on Congress's intent, we

21 begin as we do in any exercise of statutory construction with the

22 text of the provision in question, and move on, as need be, to

23 the structure and purpose of the Act in which it occurs." 

24 Metropolitan Taxicab Bd. of Trade v. City of New York, 615 F.3d

25 152, 156 (2d Cir. 2010) (quoting N.Y. State Conference of Blue

26 Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645,

27 655 (1995)) (brackets omitted). At the outset, we find nothing

28 in the statutory phrase "reasonable modification" to suggest that

29 Congress intended to exclude modifications that require violation

30 or waiver of mandatory state statutes in some circumstances. In

31 light of the broad scope and purpose of the ADA, we think it
34

1 unlikely that Congress would have hidden such a significant

2 limitation in such an anodyne statutory phrase. When Congress

3 did restrict the scope of the ADA, it did so explicitly. See,

4 e.g., 42 U.S.C. §§ 12208, 12210 (explicitly excluding certain

5 individuals from the definition of "qualified individual with a

6 disability"); id. § 12111(5)(A) (excluding employers having fewer

7 than fifteen employees from the coverage of Title I). 

8 As noted above, "[i]n the ADA, Congress provided [a]

9 broad mandate" to "effectuate its sweeping purpose[ to] . . . 

10 forbid[] discrimination against disabled individuals in major

11 areas of public life, [including] . . . public services . . . ." 

12 Martin, 532 U.S. at 675. "Congress found that 'individuals with

13 disabilities continually encounter various forms of

14 discrimination, including outright intentional exclusion, the

15 discriminatory effects of architectural, transportation, and

16 communication barriers, overprotective rules and policies, [and]

17 failure to make modifications to existing facilities and

18 practices . . . .'" Crowder, 81 F.3d at 1483 (alteration in

19 original) (quoting 42 U.S.C. § 12101(a)(5)). The ADA aims "to

20 provide a clear and comprehensive national mandate for the

21 elimination of discrimination against individuals with

22 disabilities." 42 U.S.C. § 12101(b)(1). Title II of the ADA

23 represents Congress's attempt to apply this "clear and

24 comprehensive national mandate" to the "services, programs, or

25 activities," 42 U.S.C. § 12132, of "'any State or local

26 government' and 'any department, agency, . . . or other
35

1 instrumentality of a State,'" United States v. Georgia, 546 U.S.

2 at 154 (omission in original) (quoting 42 U.S.C. § 12131(1)). 

3 And although Congress did not include an express preemption

4 provision, it did include a provision expressly abrogating the

5 sovereign immunity of the states. See 42 U.S.C. § 12202.

6 The "natural effect" of Title II's "reasonable

7 modification" requirement, Crosby, 530 U.S. at 373, in light of

8 the foregoing observations, requires preemption of inconsistent

9 state law when necessary to effectuate a required "reasonable

10 modification." Congress clearly meant Title II to sweep broadly. 

11 If all state laws were insulated from Title II's reasonable

12 modification requirement solely because they were state laws,

13 "state law [would serve as] an obstacle to the accomplishment and

14 execution of the full purposes and objectives of Congress" in

15 enacting Title II. Marsh, 499 F.3d at 177. Far from

16 "provid[ing] a clear and comprehensive national mandate for the

17 elimination of discrimination against individuals with

18 disabilities," 42 U.S.C. § 12101(b)(1), the ADA would be

19 powerless to work any reasonable modification in any requirement

20 imposed by state law, no matter how trivial the requirement and

21 no matter how minimal the costs of doing so. We conclude that

22 the ADA's reasonable modification requirement contemplates

23 modification to state laws, thereby permitting preemption of
8 The same result obtains when considering whether "federal

law is in 'irreconcilable conflict' with state law." Levitin,

159 F.3d at 705. As discussed supra Part I.D.1, the relevant

provision of the ADA distinguishes between two categories of

requirements: "rules, policies, [and] practices" which are

subject to reasonable modification, and "essential eligibility

requirements," which are not. 42 U.S.C. § 12131(2). As we have

seen, not all formal legal eligibility requirements are

"essential eligibility requirements," which raises the

possibility that, in certain cases, a state law may fall into the

category of the "rules, policies, [and] practices" subject to

reasonable modification. And if indeed a modification of a state

law was found in a particular case to be a "reasonable

modification" to a "rule[], polic[y], or practice[]," but the

state law in question did not provide for modification in those

circumstances, there would be an "irreconcilable conflict"

between the dictates of the ADA and state law, necessitating

preemption. Levitin, 159 F.3d at 705. 

36

1 inconsistent state laws, when necessary to effectuate Title II's

reasonable modification provision.8 2 

3 Our conclusion is further supported by Hargrave. 

4 There, as we have discussed, we upheld an injunction of a

5 facially discriminatory Vermont statute. Vermont had argued that

6 in the context of the statute and implementing regulation

7 requiring states "to make 'reasonable modifications in policies

8 [or] practices' in order to avoid discrimination unless the

9 modifications would constitute a fundamental alteration to the

10 relevant 'service, program, or activity,'" Hargrave, 340 F.3d at

11 38 (quoting 28 C.F.R. § 35.130(b)(7)), enjoining the law would

12 fundamentally alter the program at issue. Rejecting this

13 argument and upholding the injunction, we spoke of the "ADA's

14 preemption of these statutory provisions." Id. at 38 n.10

15 (emphasis added). While the NYSLRS argues that Hargrave "did not

16 hold that Title II preempted facially nondiscriminatory state
37

1 laws or mandated waiver of such laws," NYSLRS Br. at 21, it

2 provides no persuasive reason why, in light of the concerns

3 discussed above, Title II would preempt facially discriminatory

4 laws in pursuit of its broad purpose, but fail to preempt state

5 law when necessary to achieve a reasonable modification to

6 accomplish the same broad goals. 

7 Last, we observe that the proposition that the ADA

8 preempts inconsistent state law when appropriate and necessary to

9 effectuate a reasonable accommodation under Title II is also

10 consistent with decisions from our sister Circuits. See, e.g.,

11 Barber v. Colorado Dep't of Revenue, 562 F.3d 1222, 1232-33 (10th

12 Cir. 2009) (ultimately concluding that there was no conflict

13 between state law and the ADA in the case before it, but

14 observing that the court "in no way affirm[ed] the district

15 court's conclusion that '[a]n accommodation that would have

16 required defendants to willfully ignore or violate the law is per

17 se not reasonable.'" (citation omitted)); Quinones v. City of

18 Evanston, Ill., 58 F.3d 275, 277 (7th Cir. 1995) ("[The

19 defendant] believes that it is compelled to follow the directive

20 from the state, but the Supremacy Clause of the Constitution

21 requires a different order of priority. A discriminatory state

22 law is not a defense to liability under federal law; it is a

23 source of liability under federal law." (emphasis in original));

24 Williams v. Gen. Foods Corp., 492 F.2d 399, 404 (7th Cir. 1974)

25 (similar). As the Ninth Circuit explained:
38

1 The court's obligation under the ADA . . . is

2 to ensure that the decision reached by the

3 state authority is appropriate under the law

4 and in light of proposed alternatives. 

5 Otherwise, any state could adopt requirements

6 imposing unreasonable obstacles to the

7 disabled, and when haled into court could

8 evade the antidiscrimination mandate of the

9 ADA merely by explaining that the state

10 authority considered possible modifications

11 and rejected them.

12 We are mindful of the general principle that

13 courts will not second-guess the public

14 health and safety decisions of state

15 legislatures acting within their traditional

16 police powers. However, [under federal]

17 antidiscrimination laws such as the ADA which

18 require reasonable modifications to public

19 health and safety policies, it is incumbent

20 upon the courts to insure that the mandate of

21 federal law is achieved.

22 Crowder, 81 F.3d at 1485 (citation omitted).

23 The NYSLRS argues that "Title II . . . requires

24 reasonable modification only of 'rules, policies, or practices'

25 –- not state statutes," NYSLRS Br. 19, and seeks to distinguish

26 Crowder, which contemplated the modification of a mandatory

27 Hawaii State administrative regulation rather than a state

28 statute, see Crowder, 81 F.3d at 1481-85, on this ground, NYSLRS

29 Br. 21 n.6. But as a general rule, duly promulgated state

30 regulations have the force of law for these purposes as do

31 statutes. See, e.g., State v. Kotis, 91 Hawai'i 319, 331, 984

32 P.2d 78, 90 (1999) (Under Hawaii law, "[a]dministrative rules,

33 like statutes, have the force and effect of law."); Allstate Ins.

34 Co. v. Rivera, 12 N.Y.3d 602, 608, 911 N.E.2d 817, 820, 883

35 N.Y.S.2d 755, 758 (2009) (under New York law, "[a] duly
39

1 promulgated regulation . . . has the force of law." (internal

2 quotation marks omitted)). From the standpoint of the ADA's

3 preemptive force, we can discern no reason to distinguish between

4 the preemption of state statutes and state regulations. Cf.

5 Crosby, 530 U.S. at 372 n.6 (noting that "a variety of state laws

6 and regulations may conflict with a federal statute" and be

7 preempted). And for the reasons discussed above, we do not read

8 the ADA to prohibit reasonable modifications to state statutes

9 when appropriate.

10 We have examined NYSLRS's other arguments regarding

11 Title II and find them unpersuasive.

12 We therefore conclude that the district court erred in

13 dismissing the plaintiff's Title II claim against the NYSLRS on

14 the ground that "[r]equiring the State defendant to violate state

15 law is not a reasonable accommodation as a matter of law." Mary

16 Jo C., 2011 WL 1748572, at *9, U.S. Dist. LEXIS 49567, at *27. 

17 Because "the determination of what constitutes reasonable

18 modification is [a] highly fact-specific, . . . case-by-case

19 inquiry," "[w]hether the plaintiff['s] proposed alternative" to

20 New York's filing deadline "constitute[s] [a] reasonable

21 modification[] or [a] fundamental alteration[] cannot be

22 determined as a matter of law on the record before us." Crowder,

23 81 F.3d at 1485; see also McGary v. City of Portland, 386 F.3d

24 1259, 1270 (9th Cir. 2004) ("[T]he question of what constitutes a

25 reasonable accommodation under the ADA 'requires a fact-specific,

26 individualized analysis of the disabled individual's
40

1 circumstances and the accommodations that might allow him to meet

2 the program's standards.'" (quoting Wong v. Regents of Univ. of

3 Cal., 192 F.3d 807, 818 (9th Cir. 1999)).

4 E. The District Court's Decision as to Whether the

5 Plaintiff Adequately Alleged that She is Disabled

6 Again: Title II of the ADA provides that "no qualified

7 individual with a disability shall, by reason of such disability,

8 be excluded from participation in or be denied the benefits of

9 the services, programs, or activities of a public entity, or be

10 subjected to discrimination by any such entity." 42 U.S.C.

11 § 12132 (emphasis added). A "disability" is defined as "(A) a

12 physical or mental impairment that substantially limits one or

13 more major life activities of such individual; (B) a record of

14 such an impairment; or (C) being regarded as having such an

15 impairment . . . ." 42 U.S.C. § 12102(1). "Major life

16 activities" are further defined to include "caring for oneself,

17 performing manual tasks, seeing, hearing, eating, sleeping,

18 walking, standing, lifting, bending, speaking, breathing,

19 learning, reading, concentrating, thinking, communicating, and

20 working." 42 U.S.C. § 12102(2).

21 Although neither defendant argued to the district court

22 that the plaintiff had failed to plead adequately that she was

23 "disabled" within the meaning of the ADA, the district court

24 considered the issue sua sponte. It concluded: 

25 The complaint does not sufficiently allege

26 that plaintiff has a "disability" within the

27 meaning of the ADA. Although plaintiff

28 alleges that she has suffered from an
41

1 unidentified mental illness since

2 adolescence, she does not allege any

3 additional facts plausibly suggesting that

4 such mental illness substantially limited one

5 or more of her major life activities.

6 Accordingly, plaintiff's complaint does not

7 state a cognizable claim under Title II of

8 the ADA. See, e.g., Tylicki v. St. Onge, 297

9 F. App'x 65, 67 (2d Cir. Oct. 28, 2008)

10 (finding that the plaintiff's complaint did

11 not adequately plead a disability under Title

12 II of the ADA where it contained no

13 allegations describing how his supposed

14 mental condition substantially limited a

15 major life activity). 

16 Mary Jo C., 2011 WL 1748572, at *7, 2011 U.S. Dist. LEXIS 49567,

17 at *21. 

18 Although the district court noted that it "would be

19 possible for plaintiff to amend her Title II claims to

20 sufficiently plead this element as against the Library unless

21 those claims would otherwise be futile," id. at *10 n.7, 2011

22 U.S. Dist. LEXIS 49567, at *33 n.7, it did not afford the

23 plaintiff this opportunity because it concluded that all of the

24 plaintiff's claims against both defendants were barred on other

25 sufficient, independent grounds.

26 On appeal, the plaintiff submits that "the failure to

27 provide her with an opportunity to present evidence of disability

28 can be cured by the usual practice of this Court to grant a party

29 leave to amend the complaint on a Rule 12(b)(6) motion." Pl.'s

30 Br. 17 (citing Bellikoff v. Eaton Vance Corp., 481 F.3d 110, 118

31 (2d Cir. 2007) ("[W]hen a motion to dismiss is granted, the usual

32 practice is to grant leave to amend the complaint." (internal

33 quotation marks omitted))).
42

1 Inasmuch as the district court thought that it "would

2 be possible" for the plaintiff to amend her allegations regarding

3 her disability such that at least some claims could go forward,

4 Mary Jo C., 2011 WL 1748572, at *10 n.7, 2011 U.S. Dist. LEXIS

5 49567, at *33 n.7, in light of the fact that the plaintiff has

6 now requested leave to amend on appeal, and since our decision

7 today removes the futility the district court saw in allowing the

8 plaintiff to amend her complaint (at least as to claims against

9 the NYSLRS), we decline to pass on the sufficiency of the

10 plaintiff's allegations of disability on appeal. Instead, we

11 vacate the district court's decision in this regard, and remand

12 with instructions to grant the plaintiff's motion for leave to

13 amend her complaint to plead adequate allegations of disability

14 if such a motion is made.

15 F. Title II's Abrogation of Sovereign Immunity

16 NYSLRS argues that even if the plaintiff can state a

17 claim against it under Title II, Title II "fails to validly

18 abrogate the State's sovereign immunity for the reasonable

19 modification claim made here." NYSLRS Br. 22. The plaintiff

20 responds that, "[a]s appellant Mary Jo C. seeks injunctive relief

21 in connection with her claim against NYSLRS, this Court can avoid

22 adjudication of the Eleventh Amendment issue by permitting the

23 appellant to amend her complaint to" name a state official in his

24 official capacity as a defendant. Pl.'s Reply Br. 13. 

25 "Under the well-known exception to [the Eleventh

26 Amendment's grant of sovereign immunity from suit] first set
43

1 forth in Ex parte Young, 209 U.S. 123 (1908), . . . 'a plaintiff

2 may sue a state official acting in his official capacity --

3 notwithstanding the Eleventh Amendment -- for prospective,

4 injunctive relief from violations of federal law.'" State

5 Employees Bargaining Agent Coalition v. Rowland, 494 F.3d 71, 95

6 (2d Cir. 2007) (quoting In re Deposit Ins. Agency, 482 F.3d 612,

7 617 (2d Cir. 2007)); see also Harris v. Mills, 572 F.3d 66, 72

8 (2d Cir. 2009) (similar).

9 Because of our well-settled policy of avoiding the

10 unnecessary adjudication of constitutional issues, see generally

11 Horne v. Coughlin, 191 F.3d 244, 246 (2d Cir.), cert. denied, 528

12 U.S. 1052 (1999), and because the NYSLRS concedes that the

13 "plaintiff could potentially seek injunctive relief from the

14 State Comptroller under Ex parte Young," NYSLRS Supp. Br. 17, we

15 decline to address the constitutionality of Title II's abrogation

16 of the State's sovereign immunity, and remand with instructions

17 to the district court to allow the plaintiff leave to amend her

18 complaint in an attempt to invoke the doctrine of Ex parte Young.

19 II. Title II Claim Against the Library 

20 A. The District Court's Decision

21 The plaintiff also asserted a claim against the Library

22 alleging that its failure to file an application on her behalf or

23 to reclassify her termination as an unpaid leave of absence

24 violated Title II of the ADA. As noted, the ADA "forbids

25 discrimination against persons with disabilities in three major

26 areas of public life: employment, which is covered by Title I of
9

 The term "covered entity" is defined to include an

"employer," 42 U.S.C. § 12111(2), which in turn is defined to

include a "person engaged in an industry affecting commerce who

has 15 or more employees." Id. § 12111(5)(A). The statute

further defines "person" as including, see id. § 12111(7); id. §

12111(5)(B), non-federal "governments, governmental agencies,

[and] political subdivisions," id. § 2000e(a), and defines

"industry affecting commerce as including "any governmental

industry, business, or activity," id. § 2000e(h), see generally

Zimmerman v. Oregon Dep't of Justice, 170 F.3d 1169, 1172 (9th

Cir. 1999).

44

1 the statute; public services, programs, and activities, which are

2 the subject of Title II; and public accommodations, which are

3 covered by Title III." Lane, 541 U.S. at 516-17. The district

4 court dismissed this claim because it concluded that the

5 plaintiff, an employee of the Library, could bring a claim

6 against her employer under Title I of the ADA but not under Title

7 II.

8 Title I of the ADA, "employment," provides in pertinent

9 part that "[n]o covered entity shall discriminate against a

10 qualified individual on the basis of disability in regard to job

11 application procedures, the hiring, advancement, or discharge of

12 employees, employee compensation, job training, and other terms,

13 conditions, and privileges of employment." 42 U.S.C. § 12112(a). 

14 Title I applies to government employers, which are "covered

entities."9 15

16 Noting that the "Supreme Court" and "the Second Circuit

17 ha[ve] not expressly considered th[e] issue" of whether Title II

18 applies to employment discrimination, Mary Jo C., 2011 WL

19 1748572, at *11-*12, 2011 U.S. Dist. LEXIS 49567, at *36, and
45

1 acknowledging that "courts are split" on the issue, id. at *11,

2 2011 U.S. Dist. LEXIS 49567, at *35, the district court followed

3 what it described as the "well-reasoned decisions of the most

4 recent district court cases in this Circuit," to conclude that

5 "Title I of the ADA is the exclusive remedy for plaintiff's

6 claims of discrimination against the Library, all of which relate

7 to the 'terms, conditions, and privileges of [her] employment'

8 with that entity," id. at *12, 2011 U.S. Dist. LEXIS 49567, at

9 *39 (alteration in original) (quoting 42 U.S.C. § 12112(a)).

10 The district court also cited Zimmerman v. Oregon Dep't

11 of Justice, 170 F.3d 1169 (9th Cir. 1999), as the leading case

12 concluding that public employees' exclusive remedy against their

13 employers under the ADA is Title I. Zimmerman concluded that

14 "Congress unambiguously expressed its intent for Title II not to

15 apply to employment." Id. at 1173. It reasoned that a "common

16 understanding" of the term "services, programs, or activities" in

17 Title II's command that "no qualified individual with a

18 disability shall, by reason of such disability, be excluded from

19 participation in or be denied the benefits of the services,

20 programs, or activities of a public entity," referred "only to

21 the 'outputs' of a public agency, not to 'inputs' such as

22 employment." Id. at 1174.

23 First, employment by a public entity is not

24 commonly thought of as a "service, program,

25 or activity of a public entity." Second, the

26 "action" words in the sentence presuppose

27 that the public entity provides an output

28 that is generally available, and that an
46

1 individual seeks to participate in or receive

2 the benefit of such an output.

3 Consider, for example, how a Parks Department

4 would answer the question, "What are the

5 services, programs, and activities of the

6 Parks Department?" It might answer, "We

7 operate a swimming pool; we lead nature

8 walks; we maintain playgrounds." It would

9 not answer, "We buy lawnmowers and hire

10 people to operate them." The latter is a

11 means to deliver the services, programs, and

12 activities of the hypothetical Parks

13 Department, but it is not itself a service,

14 program, or activity of the Parks Department.

15 Similarly, consider how a member of the

16 public would answer the question, "What are

17 the services, programs, and activities of the

18 Parks Department in which you want to

19 participate, or whose benefits you seek to

20 receive?" The individual might answer, "I

21 want to participate in the Wednesday night

22 basketball league, or find out about the free

23 children's programs for the summer months."

24 The individual would not logically answer, "I

25 want to go to work for the Parks Department."

26 Id.

27 The Zimmerman court concluded that "when viewed as a

28 whole, the text, context and structure of the ADA show

29 unambiguously that Congress did not intend for Title II to apply

30 to employment. Under these circumstances, we do not resort to

31 legislative history, and we do not defer to the Attorney

32 General's regulation," id. at 1178, which provides that Title II

33 does apply to employment actions against public employers, see 28

34 C.F.R. § 35.140(a). Contra Bledsoe v. Palm Beach County Soil &

35 Water Conservation Dist., 133 F.3d 816, 821 (11th Cir. 1998)

36 ("Extensive legislative commentary regarding the applicability of

37 Title II to employment discrimination [in the ADA's legislative
47

1 history] . . . is so pervasive as to belie any contention that

2 Title II does not apply to employment actions.")

3 In addition to cases following Zimmerman's analysis,

4 the district court noted dicta from the Supreme Court's decision

5 in Board of Trustees of University of Alabama v. Garrett, 531

6 U.S. 356 (2001):

7 [N]o party has briefed the question of

8 whether Title II of the ADA . . . is

9 available for claims of employment

10 discrimination when Title I of the ADA

11 expressly deals with that subject. See,

12 e.g., Russello v. United States, 464 U.S. 16,

13 23 (1983) ("[W]here Congress includes

14 particular language in one section of a

15 statute but omits it in another section of

16 the same Act, it is generally presumed that

17 Congress acts intentionally and purposely in

18 the disparate inclusion or exclusion"

19 (internal quotation marks omitted)).

20

21 Id. at 360 n.1. Like the district court here, other district

22 courts in this Circuit have cited this language before reaching

23 the conclusion that Title II does not apply to employee claims

24 against a public employer. See Fleming v. State Univ. of N.Y.,

25 502 F. Supp. 2d 324, 332 (E.D.N.Y. 2007).

26 B. Analysis

27 "[S]tatutory analysis necessarily begins with the plain

28 meaning of the law's text, and, absent ambiguity, will generally

29 end there." Dobrova v. Holder, 607 F.3d 297, 301 (2d Cir. 2010) 

30 (internal quotation marks omitted). "'Because our task is to

31 ascertain Congress's intent, we look first to the text and

32 structure of the statute' as the surest guide to congressional

33 intent." Trustees of Local 138 Pension Trust Fund v. F.W.
48

1 Honerkamp Co., 692 F.3d 127, 134(2d Cir. 2012) (quoting Lindsay

2 v. Ass'n of Prof'l Flight Attendants, 581 F.3d 47, 52 (2d Cir.

3 2009)). We are persuaded primarily by the structure of the ADA,

4 including differences between Title I and Title II, that Congress

5 did not intend to extend Title II to employment discrimination

6 claims, at least not those that are covered by Title I, see infra

7 note 12 and accompanying text. See Allard K. Lowenstein Intern.

8 Human Rights Project v. Dep't of Homeland Sec., 626 F.3d 678, 681

9 (2d Cir. 2010) ("Beginning, as we must, with the plain meaning of

10 the statute's text and structure, we see no ambiguity."). 

11 The ADA is divided into five separate titles: Title

12 I, "Employment"; Title II, "Public Services"; Title III, "Public

13 Accommodations"; Title IV, "Telecommunications"; and Title V,

14 "Miscellaneous Provisions." Americans with Disabilities Act of

15 1990, Pub. L. No. 101-336, 104 Stat. 327, 327-28 (1990). "'[T]he

16 title of a statute and the heading[s] of [its] section[s]' are

17 'tools available for the resolution of a doubt' about the meaning

18 of a statute." Almendarez-Torres v. United States, 523 U.S. 224,

19 234 (1998) (quoting Trainmen v. Baltimore & Ohio R. Co., 331 U.S.

20 519, 528-29 (1947)). As the Supreme Court indicated in dicta in

21 Garrett, the fact that "Title I of the ADA expressly deals with

22 th[e] subject" of employment discrimination, whereas Title II

23 "deal[s] with the 'services, programs, or activities of a public

24 entity,'" 531 U.S. at 360 n.1 (quoting 42 U.S.C. § 12132),

25 suggests that Congress did not intend Title II to reach

26 employment discrimination, see id. (citing Russello, 464 U.S. at
49

1 23 ("[W]here Congress includes particular language in one section

2 of a statute but omits it in another section of the same Act, it

3 is generally presumed that Congress acts intentionally and

4 purposely in the disparate inclusion or exclusion" (internal

5 quotation marks omitted))). And reflecting Congress's decision

6 to separate the ADA into distinct titles covering different kinds

7 of discrimination, the Supreme Court has described the ADA as

8 "forbid[ding] discrimination against persons with disabilities in

9 three major areas of public life: employment, which is covered by

10 Title I of the statute; public services, programs, and

11 activities, which are the subject of Title II; and public

12 accommodations, which are covered by Title III." Lane, 541 U.S.

13 at 516-17. 

14 The division between Titles I and II is further

15 illustrated by their differing definitions of a "qualified

16 individual." Title I's definition speaks in terms of employment: 

17 "As used in [Title I,] . . . 'qualified individual' means an

18 individual who, with or without reasonable accommodation, can

19 perform the essential functions of the employment position that

20 such individual holds or desires." 42 U.S.C. § 12111(8). But

21 Title II defines the same term instead as an individual who

22 "meets the essential eligibility requirements for the receipt of

23 services or the participation in programs or activities provided

24 by a public entity." Id. § 12131(2). 

25 Moreover, Title I prohibits discrimination by a

26 "covered entity," which it defines as, inter alia, "an employer,"
50

1 id. § 12111(2), whereas Title II prohibits discrimination by a

2 "public entity," which it defines as, inter alia, "any State or

3 local government [or agency thereof]," id. § 12131(1). Thus,

4 "Title II does not include any definition relevant to

5 employ[ment], [by contrast with] Title I[]." Cormier v. City of

6 Meriden, No. 03 Cv. 1819, 2004 WL 2377079, at *4, 2004 U.S. Dist.

7 LEXIS 21104, at *15 (D. Conn. Sept. 30, 2004).

8 Also, Congress delegated the authority to promulgate

9 regulations under the two titles to two different agencies. 

10 Title I gives the Equal Employment Opportunity Commission the

11 authority to promulgate regulations interpreting that title. 42

12 U.S.C. § 12116. But Title II entrusts the Attorney General with

13 that responsibility. 42 U.S.C. § 12134(a). See also Zimmerman,

14 170 F.3d at 1178. And the fact that Congress included no

15 direction that the two agencies work together to avoid imposing

16 inconsistent standards governing employment discrimination suits

17 suggests "that it did not intend for the Attorney General to have

18 any power over employment under Title II; it never envisioned

19 that there could be a conflict." Id.

20 Title I also imposes various limitations on suits

21 against an employer which are absent from Title II. While Title

22 I caps the amount of compensatory damages a plaintiff may recover

23 depending on the number of employees employed by the defendant

24 employer, 42 U.S.C. § 1981a(b)(3), and disallows punitive damages

25 in suits against governmental employers, id. § 1981a(b)(1),

26 "Title II has no such limitations," Cormier, 2004 WL 2377079, at
10 Title I incorporates the exhaustion requirement imposed

by Title VII of the Civil Rights Act of 1964. 

ADA Title I incorporates various provisions

from Title VII of the landmark Civil Rights

Act of 1964. . . . One of these

provisions . . . requires a claimant to file

a charge of employment discrimination with

the EEOC within 180 days after the

discriminatory act. See [42 U.S.C.]

§ 2000e-5(e)(1). 

McInerney v. Rensselaer Polytechnic Inst., 505 F.3d 135, 138 (2d

Cir. 2007). 

11 Title II adopts the "remedies, procedures, and rights set

forth" in the Rehabilitation Act at 29 U.S.C. § 794a. 42 U.S.C.

§ 12133. Courts have construed that section of the

Rehabilitation Act as not imposing any exhaustion requirement as

to claims against a recipient of federal funding, but as imposing

one as to claims against a federal employer. See, e.g., Ryan v.

Shawnee Mission Unified Sch. Dist. No. 512, 437 F. Supp. 2d 1233,

1253–54 (D. Kansas 2006). But "Title II of the ADA is not

applicable to the federal government," Cellular Phone Taskforce

v. F.C.C., 217 F.3d 72, 73 (2d Cir. 2000), so it would appear

that Title II only incorporates the Rehabilitation Act's

procedures applicable to recipients of federal funding, and thus

does not impose an exhaustion requirement. Other courts have

concluded that Title II contains no exhaustion requirement. See

Bledsoe, 133 F.3d at 824 ("[T]he regulations . . . plainly state

that exhaustion is not required." (citing 28 C.F.R. § 35.172,

Appendix A ("At any time, the complainant may file a private suit

pursuant to section 203 of the Act, 42 U.S.C. [§] 12133, whether

or not the designated agency finds a violation."))). 

In Tsombanidis v. West Haven Fire Dept., 352 F.3d 565

(2d Cir. 2003), we strongly suggested that Title II does not

impose an exhaustion requirement.

It may be that once the governmental entity

denies . . . an accommodation, [Title II of]

the ADA [does not] require a plaintiff to

51

1 *7, 2004 U.S. Dist. LEXIS 21104, at *26. And although plaintiffs

2 filing suit under Title I must first exhaust administrative

remedies,10 3 it appears that those filing suit under Title II need

4 not do so, although we find a conclusion on the point unnecessary

to decide this case.11 5 It is an "elementary canon of
exhaust the state or local administrative

procedures. But a plaintiff must first use

the procedures available to notify the

governmental entity that it seeks an

exception or variance from the facially

neutral laws when pursuing a reasonable

accommodation claim.

. . . .

This is not an exhaustion requirement but

merely a requirement that plaintiffs first

use the proper procedure to seek an exception

or variance. If denied this request, they do

not need to exhaust the administrative appeal

process.

Id. at 579 & n.8 (emphasis in original); see also Cormier, 2004

WL 2377079, at *6, 2004 U.S. Dist. LEXIS 21104, at *22-*23 ("The

Second Circuit has not decided the issue, but has suggested that

Title II may not require exhaustion."). However, out of an

abundance of caution, and because plaintiff does not argue

otherwise, we assume for present purposes but do not decide that

Title II imposes no exhaustion requirement.

52

1 construction that a statute should be interpreted so as not to

2 render one part inoperative." Mountain States Tel. & Tel. Co. v.

3 Pueblo of Santa Ana, 472 U.S. 237, 249 (1985), (quoting Colautti

4 v. Franklin, 439 U.S. 379, 392 (1979)). "[A]pplying Title II to

5 public employees would nullify these statutory limits for a

6 significant category of employment discrimination plaintiffs." 

7 Cormier, 2004 WL 2377079, at *7, 2004 U.S. Dist. LEXIS 21104, at

8 *26. As the Seventh Circuit put it in a similar context -- while

9 analyzing the Rehabilitation Act -- "it would make no sense for

10 Congress to provide . . . different sets of remedies, having

11 different exhaustion requirements, for the same wrong committed

12 by the same employer." McGuinness v. U.S. Postal Serv., 744 F.2d

13 1318, 1321 (7th Cir. 1984).
53

1 "[W]e are required to disfavor interpretations of

2 statutes that render language superfluous." Conn. ex rel.

3 Blumenthal v. U.S. Dep't of the Interior, 228 F.3d 82, 88 (2d

4 Cir. 2000) (internal quotation marks omitted); see also Corley,

5 556 U.S. at 314 ("[O]ne of the most basic interpretive canons[

6 is] that a statute should be construed so that effect is given to

7 all its provisions, so that no part will be inoperative or

8 superfluous, void or insignificant." (internal quotation marks

9 and alteration omitted)); Duncan, 533 U.S. at 174 (similar). If

10 a public employee were able to bring a suit against her employer

11 for wrongful discrimination under both Title I and Title II,

12 Title I would apparently become superfluous in the context of a

13 suit against a public employer employing more than fifteen

14 persons –- compare 42 U.S.C. § 12111(5)(A) (Title I does not

15 apply to an employer with fewer than 15 employees), with 42

16 U.S.C. § 12131(1)(Title II applies to all municipal entities

17 regardless of size) -- which is a construction we find highly

18 doubtful. Even the plaintiff here concedes nearly as much. See

19 Pl.'s Reply Br. 24 ("[T]he proffered interpretation of Title II

20 does not render Title I entirely redundant.") (emphasis in

21 original).

22 Accordingly, we conclude that the statute unambiguously

23 limits employment discrimination claims to Title I. A public

24 employee may not bring a Title II claim against his or her
12 We need not, and do not, decide here whether a Title II

claim may be brought against a public employer employing fewer

than fifteen employees inasmuch as the Library has represented

that it has fifteen or more.

54

1 employer, at least when the defendant employer employs fifteen or

more employees.12 2

3 The plaintiff argues that we, like the Bledsoe court,

4 should consult Title II's legislative history. But, having found

5 the relevant provisions of the statute unambiguous, we do not

6 have warrant to do so. See, e.g., Dep't of Hous. & Urban Dev. v.

7 Rucker, 535 U.S. 125, 132 (2002) ("[R]eference to legislative

8 history is inappropriate when the text of a statute is

9 unambiguous."); Ratzlaf v. United States, 510 U.S. 135, 147-48

10 (1994) ("[W]e do not resort to legislative history to cloud a

11 statutory text that is clear.").

12 The plaintiff also argues that deference is due to the

13 Attorney General's regulations implementing Title II, which

14 contemplate employment discrimination claims. See 28 C.F.R. §

15 35.140(a) ("No qualified individual with a disability shall, on

16 the basis of disability, be subjected to discrimination in

17 employment under any service, program, or activity conducted by a

18 public entity."). But the Supreme Court has directed that before

19 deferring to an agency's regulations, a court must first employ

20 "'traditional tools of statutory construction' to determine

21 whether Congress has expressed its intent unambiguously on the

22 question before the court." Zimmerman, 170 F.3d at 1173 (quoting

23 Chevron, 467 U.S. at 843 n.9). "If the intent of Congress is
55

1 clear, that is the end of the matter; for the court, as well as

2 the agency, must give effect to the unambiguously expressed

3 intent of Congress." Chevron, 467 U.S. at 842-43. "The

4 judiciary is the final authority on issues of statutory

5 construction and must reject administrative constructions which

6 are contrary to clear congressional intent." Id. at 843 n.9. 

7 Because we conclude that the statute is unambiguous, we do not

8 consider the Attorney General's regulations for this purpose. 

9 The plaintiff also argues that our prior statement in 

10 Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d

11 37 (2d Cir. 1997), recognized as superseded on other grounds by

12 Zervos v. Verizon New York, Inc., 252 F.3d 163, 171 n.7 (2d Cir.

13 2001), that the word "discrimination" in Title II is a "catch-all

14 phrase that prohibits all discrimination by a public entity,

15 regardless of the context," id. at 45, establishes that we have

16 already decided that Title II applies to employment. But, in

17 relevant part, Innovative only addressed (and rejected) White

18 Plains' argument that Title II did not apply to its zoning

19 decisions because "it contend[ed] that zoning does not constitute

20 a 'service, program, or activity.'" Id. at 44. The question of

21 whether Title II applies to employment discrimination was not

22 before the Court.

23 And this statement must be considered in context. 

24 Title II provides that "no qualified individual with a disability

25 shall, by reason of such disability, be excluded from

26 participation in or be denied the benefits of the services,
13 After dismissing the plaintiff's Title II claim against

the Library, the district court observed that "Plaintiff does not

seek leave to amend her complaint to assert a Title I ADA claim,

nor refute the Library's contention that she cannot state a valid

Title I ADA claim because she failed to exhaust her

administrative remedies with respect to any such claim as

required by 42 U.S.C. § 12117(a)." Mary Jo C., 2011 WL 1748572,

at *12 n.11, 2011 U.S. Dist. LEXIS 49567, at *39 n.11. We do not

56

1 programs, or activities of a public entity, or be subjected to

2 discrimination by any such entity." 42 U.S.C. § 12132. The

3 Innovative court first rejected White Plains' argument on the

4 ground that the word "activity" in the above quoted statutory

5 text was broad enough to encompass municipal zoning decisions. 

6 117 F.3d at 44. This reasoning was sufficient to reject

7 completely White Plains' argument, and would have been sufficient

8 to decide the issue before the Court. But the Innovative Court

9 then offered an alternative rationale for rejecting White Plains'

10 argument: that the statutory language "or be subjected to

11 discrimination by any such entity," 42 U.S.C. § 12132, was a

12 "catch-all phrase that prohibits all discrimination by a public

13 entity, regardless of the context," 117 F.3d at 45. In any

14 event, then, the statement in Innovative "was not essential to

15 the Court's holding because it was offered in the alternative[,]

16 and therefore it is [a] dictum that is not binding on us." 

17 Willis Mgmt. (VT.), Ltd. v. United States, 652 F.3d 236, 243 (2d

18 Cir. 2011).

19 For the foregoing reasons, we affirm the district

20 court's dismissal of the plaintiff's Title II claims against the

Library.13 21 
express or mean to imply any opinion on our part as to whether

the plaintiff should be allowed to amend her claims against the

Library on remand.

57

1 CONCLUSION

2 For the foregoing reasons, the district court's

3 judgment of dismissal is vacated as to the plaintiff's Title II

4 claim against the NYSLRS. The case is remanded with instructions

5 to the district court to grant the plaintiff leave to amend her

6 complaint if she so wishes to allege facts supporting her claim

7 that she was disabled, and to attempt to state a claim invoking

8 the rule of Ex parte Young, 209 U.S. 123 (1908), and for further

9 proceedings consistent with this opinion. The district court's

10 judgment of dismissal is affirmed as to the plaintiff's Title II

11 claim against the Library. The district court's decision to

12 decline to exercise supplemental jurisdiction over the

13 plaintiff's state law claims is vacated for reconsideration

14 depending on the course of the further proceedings contemplated

15 by this opinion.

16 Costs of the plaintiff on appeal to be paid by NYSLRS

17 to the plaintiff; the Library shall bear its own costs.