*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.

UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2 August Term, 2011 3 (Argued: May 3, 2012 Decided: January 29, 2013) 4 Docket No. 11-2215 5

------------------------------------- 6 MARY JO C., 7 Plaintiff-Appellant , 8

- v - 9 NEW YORK STATE AND LOCAL RETIREMENT SYSTEM, CENTRAL ISLIP PUBLIC 10 LIBRARY, 11 Defendants-Appellees

. 12

------------------------------------- 13 Before: SACK, RAGGI, Circuit Judges , and SWAIN, District 14 Judge

. * 15 16 Appeal by the plaintiff from a judgment of the United 17 States District Court for the Eastern District of New York 18 (Sandra J. Feuerstein, Judge ) dismissing the plaintiff's claims 19 pursuant to Federal Rules of Civil Procedure 12(b)(1) and 20 12(b)(6). The district court concluded principally that Title II 21 of the Americans with Disabilities Act does not require state 22 actors to violate state laws as a "reasonable modification" under 23 the Act, and that Title II does not apply to employment 242 discrimination. Because we conclude that Title II does, in some 1 circumstances, require reasonable departures from standards 2 established by state laws, we vacate the district court's 3 judgment of dismissal in that respect. Because we conclude, 4 based principally on the structure of the Americans with 5 Disabilities Act, that Title II does not apply to employment 6 discrimination, we affirm the district court's judgment of 7 dismissal of that claim. 8 Affirmed in part; vacated and remanded in part. 9 WILLIAM M. BROOKS, Mental Disability Law 10 Clinic, Touro College, Jacob D. 11 Fuchsberg Law Center, Central Islip, NY, 12 forPlaintiff-Appellant

. 13 CECELIA C. CHANG, Deputy Solicitor 14 General, (Barbara D. Underwood, 15 Solicitor General, Laura R. Johnson, 16 Assistant Solicitor General, of counsel, 17 on the brief ), forEric T. Schneiderman, 18 Attorney General of the State of New 19 York, New York, NY, forDefendant20 Appellee New York State and Local 21 Retirement System

. 22 LAURA L. SHOCKLEY, (William M. Savino, 23 Harris J. Zakarin, on the brief ), Rivkin 24 Radler LLP, Uniondale, NY, for 25 Defendant-Appellee Central Islip Public 26 Library

. 27 SASHA SAMBERG-CHAMPION, (Jessica Dunsay 28 Silver, on the brief ), Department of 29 Justice, Civil Rights Division, 30 Appellate Section, forThomas E. Perez, 31 Assistant Attorney General, Washington, 32 DC, forAmicus Curiae United States 33 Department of Justice

. 34 Jo Anne Simon, Jo Anne Simon P.C., 35 Brooklyn, NY, forAmici Curiae 36 Disability Advocates, Inc., DRVT, 37 National Disability Rights Network, and 383 State of Connecticut Office of 1 Protection and Advocacy for Persons with 2 Disabilities

. 3 SACK, Circuit Judge : 4 The plaintiff alleges that her job as a librarian at 5 the Central Islip Public Library (the "Library") was terminated 6 because of behavior symptomatic of her chronic mental illness. 7 Although she alleges that she would have been eligible for 8 disability retirement benefits under New York State law, her 9 mental illness interfered with her ability to comply with New 10 York State law's strictly enforced filing deadline for those 11 benefits. When the New York State and Local Retirement System 12 (the "NYSLRS") rejected her request to waive the deadline, and 13 when the Library rejected her request to assist her in applying 14 or extending the deadline by reclassifying her termination as a 15 leave of absence, the plaintiff was denied those benefits. 16 Thereafter, the plaintiff instituted this lawsuit in 17 the United States District Court for the Eastern District of New 18 York against the NYSLRS and the Library alleging, inter alia , 19 that the defendants' actions violated Title II of the Americans 20 with Disabilities Act ("ADA"), Pub. L. No. 101-336, 104 Stat. 21 327, 327-28 (1990), 42 U.S.C. §§ 12131, et seq . The district 22 court (Sandra J. Feuerstein, Judge ) granted the defendants' 23 motion to dismiss because the court concluded principally that 24 Title II of the Americans with Disabilities Act does not require 25 modifications of mandatory requirements imposed by state laws, 26 and that Title II does not apply to employment discrimination. 274 For the reasons set forth below, the district court's 1 judgment of dismissal is vacated as to the plaintiff's Title II 2 claim against the NYSLRS. The case is remanded with instructions 3 to the district court to grant the plaintiff leave to amend her 4 complaint if she so wishes to allege facts supporting her claim 5 that she was disabled, and to attempt to state a claim invoking 6 the rule of Ex parte Young , 209 U.S. 123 (1908), and to conduct 7 further proceedings as warranted. The district court's judgment 8 of dismissal is affirmed as to the plaintiff's Title II claim 9 against the Library. The district court's decision to decline to 10 exercise supplemental jurisdiction over the plaintiff's state law 11 claims is vacated for reconsideration depending on the course of 12 the further proceedings contemplated by this opinion. 13

**BACKGROUND** 14 Because this is an appeal from the district court's 15 grant of the defendants' motion to dismiss, we state the facts as 16 drawn from the complaint of the plaintiff "Mary Jo C." -- 17 "accepting all well-pleaded allegations in the complaint as true 18 and drawing all reasonable inferences in the plaintiff's favor," 19 Bigio v. Coca–Cola Co. , 675 F.3d 163, 169 (2d Cir. 2012) 20 (internal quotation marks and brackets omitted) –- and as drawn 21 from matters of which we may take judicial notice, seeTellabs, 22 Inc. v. Makor Issues & Rights, Ltd. , 551 U.S. 308, 322 (2007) 23 ("[C]ourts must consider the complaint in its entirety, as well 24 as other sources . . . , in particular, documents incorporated 255 into the complaint by reference, and matters of which a court may 1 take judicial notice."); ATSI Commc'ns, Inc. v. Shaar Fund, Ltd. , 2 493 F.3d 87, 98 (2d Cir. 2007) ("[W]e may consider . . . 3 documents possessed by or known to the plaintiff and upon which 4 it relied in bringing the suit."). 5 The plaintiff is a "57[-]year-old individual who has 6 suffered from mental illness since adolescence." Complaint ¶ 12, 7 Mary Jo C. v. New York State and Local Ret. Sys. , No. 09 Cv. 5635 8 (E.D.N.Y. Dec. 23, 2009) ("Compl."). She was employed by various 9 Long Island libraries between 1986 and November 2006, becoming a 10 member of defendant NYSLRS in January 1988. Id. ¶¶ 13-14. While 11 working for the Library, her employment was terminated in 12 November 2006 "[a]s a result of behaviors that were symptomatic 13 of her mental illness." Id.¶ 16. Her last day of work at the 14 Library was on or about November 12, 2006. Id. ¶ 17. After her 15 termination, "libraries in Suffolk County communicated among 16 themselves and agreed that [the plaintiff] should not be hired as 17 a librarian." Id.¶ 40. The plaintiff asserts that because the 18 libraries "blackballed [her] from working in the public library 19 system in Suffolk County," "it is a virtual certainty that [she] 20 will never work again." Id.¶¶ 40-41. 21 In some circumstances, New York provides disability 22 retirement benefits for members of the NYSLRS who are "physically 23 or mentally incapacitated for the performance of gainful 24 employment." SeeN.Y. Ret. and Soc. Sec. Law § 605(b)(1), 256 (b)(3)(c). According to the Complaint, the plaintiff would have 1 been eligible for disability retirement benefits under New York 2 law had she filed an application with the NYSLRS within three 3 months of her last day of employment. Compl. ¶¶ 18-19. But she 4 "failed to recognize" the filing deadline "because of her mental 5 illness." Id.¶ 20. 6 During the three-month period following her 7 termination, the plaintiff's brother spoke to an NYSLRS official, 8 who informed him that the Library could file an application on 9 the plaintiff's behalf. Id.¶¶ 21-24. On or about February 11, 10 2007, the plaintiff's brother asked the Library to do so, but the 11 Library denied the request. Id.¶¶ 25-26. The plaintiff's 12 brother then asked the Library to reclassify the plaintiff's 13 termination as an unpaid leave of absence, which would have 14 extended the time during which the plaintiff could file for 15 benefits, seeN.Y. Ret. and Soc. Sec. Law § 605(b)(2), but the 16 Library refused to do that too. Compl. ¶¶ 27-29. 17 The plaintiff's condition improved in November 2007, 18 and she applied for disability retirement benefits. Id. ¶ 30. 19 The NYSLRS denied the application because it was not filed within 20 three months of the plaintiff's last day of work. Id. ¶ 31. On 21 or about July 23, 2008, the plaintiff requested that the NYSLRS 22 waive the filing deadline as an accommodation under the ADA. The 23 NYSLRS did not respond. Id.¶¶ 32-33. 247 While awaiting the NYSLRS's response, the plaintiff's 1 brother received notice that the plaintiff could appeal the 2 denial of her disability retirement benefits application, and the 3 plaintiff did so. Id.¶¶ 34-35. The NYSLRS argued before the 4 hearing officer that state law prohibited it from waiving the 5 filing deadline for any reason. Id.¶ 36. The hearing officer 6 agreed, denying the plaintiff's appeal because there was no 7 "provision for an extension of the filing deadline" under the 8 applicable state statutes and regulations. Id. ¶¶ 37-38. 9 Thereafter, on December 23, 2009, the plaintiff brought 10 the instant action in the United States District Court for the 11 Eastern District of New York against the NYSLRS and the Library. 12 The complaint alleges that (1) the NYSLRS violated the ADA by 13 failing to "provide a requested reasonable accommodation" by 14 waiving the filing deadline, (2) the Library violated the ADA and 15 New York Executive Law section 296 by failing to file an 16 application on the plaintiff's behalf, and (3) the Library 17 violated the ADA and New York Executive Law section 296 by 18 failing to reclassify the plaintiff's termination as a leave of 19 absence. Id.¶¶ 43-52. The plaintiff requested various 20 declaratory judgments, an injunction requiring the NYSLRS to 21 waive the filing deadline (or, if the court determined that an 22 injunction was inappropriate under the ADA, damages), and 23 attorney's fees and costs. Id.at pp. 10-12. 248 Both defendants moved to dismiss the complaint pursuant 1 to Rule 12(b)(6); the NYSLRS also moved to dismiss pursuant to 2 Rule 12(b)(1), asserting that the plaintiff lacked standing and 3 that New York's sovereign immunity barred the plaintiff's claims. 4 On May 5, 2011, the district court denied the NYSLRS's motion to 5 dismiss for lack of subject matter jurisdiction, concluding that 6 the plaintiff had standing to bring her claims. But the court 7 granted the NYSLRS's motion to dismiss because it concluded that 8 the plaintiff could not state a claim under Title II of the ADA, 9 and that the court therefore need not determine whether Congress 10 validly abrogated New York's sovereign immunity when it enacted 11 Title II. The court reasoned that (1) the filing deadline was an 12 essential eligibility requirement not subject to waiver under the 13 ADA, (2) the plaintiff's request for an accommodation was not 14 "reasonable" under the ADA because it would require the NYSLRS to 15 violate state law, and (3) the plaintiff did not allege facts 16 sufficiently plausible on their face to demonstrate, if proven, 17 that she was disabled within the meaning of Title II of the ADA. 18 Mary Jo C. v. New York State and Local Ret. Sys. , 2011 WL 19 1748572, 2011 U.S. Dist. LEXIS 49567 (E.D.N.Y. May 5, 2011). As 20 for the Library's motion to dismiss, the court concluded that the 21 plaintiff's Title II claims against the library failed because 22 her exclusive remedy against the Library was a claim under Title 23 I of the ADA, id.at *12, 2011 U.S. Dist. LEXIS 49567, at *39, 24 further noting that the plaintiff did not refute the Library's 259 contention that the plaintiff had not exhausted her 1 administrative remedies under Title I. id. at *12 n.11, 2011 U.S. 2 Dist. LEXIS 49567, at *39 n.11. The district court then declined 3 to exercise supplemental jurisdiction over the state-law claims, 4 and dismissed the complaint. 5 The plaintiff appeals. 6

**DISCUSSION** 7 "We review de novo a district court's dismissal of a 8 complaint under Rule 12(b)(6), accepting all of the complaint's 9 factual allegations as true and drawing all reasonable inferences 10 in the plaintiffs' favor." Forest Park Pictures v. Universal 11 Television Network, Inc. , 683 F.3d 424, 429 (2d Cir. 2012) 12 (citing Interpharm, Inc. v. Wells Fargo Bank, Nat'l Ass'n , 655 13 F.3d 136, 141 (2d Cir. 2011)). The complaint must state a claim 14 that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 15 U.S. 544, 570 (2007). "A claim has facial plausibility when the 16 plaintiff pleads factual content that allows the court to draw 17 the reasonable inference that the defendant is liable for the 18 misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678 19 (2009). "[A] dismissal pursuant to Rule 12(b)(6) is, at bottom, 20 a declaration that the plaintiff's complaint and incorporated 21 materials are insufficient as a matter of law to support a claim 22 upon which relief may be granted." Halebian v. Berv , 644 F.3d 23 122, 130-31 (2d Cir. 2011). 2410 I. ADA Title II Claims Against the NYSLRS 1

A.Sovereign Immunity 2 The NYSLRS moved to dismiss on the basis of New York 3 State's and the NYSLRS's sovereign immunity from suit. The 4 Eleventh Amendment to the United States Constitution provides 5 that "[t]he Judicial power of the United States shall not be 6 construed to extend to any suit in law or equity, commenced or 7 prosecuted against one of the United States by Citizens of 8 another State, or by Citizens or Subjects of any Foreign State." 9
U.S. CONST . amend. XI. The Eleventh Amendment has been 10 interpreted as also barring suits in federal court against a 11 state brought by that state's own citizens. SeeWoods v. Rondout 12 Valley Cent. Sch. Dist. Bd. of Educ. , 466 F.3d 232, 236 (2d Cir. 13 2006). Although NYSLRS is not itself a state, "[t]he immunity 14 recognized by the Eleventh Amendment extends beyond the states 15 themselves to 'state agents and state instrumentalities' that 16 are, effectively, arms of a state." Id. (quoting Regents of the 17 Univ. of Cal. v. Doe , 519 U.S. 425, 429 (1997)). 18 "Congress may abrogate the states' Eleventh Amendment 19 immunity when acting pursuant to [Congressional] authority under 20 Section [five] of the Fourteenth Amendment." Id. (citing U.S. 21
CONST . amend. XIV, § 5; Tennessee v. Lane , 541 U.S. 509, 518 22 (2004)). Congress has purported to abrogate the states' 23 sovereign immunity from claims brought against them under Title 24 II of the ADA. See42 U.S.C. § 12202. However, the validity of 2511 this abrogation depends on "whether Congress acted pursuant to a 1 valid grant of constitutional authority." Lane , 541 U.S. at 517 2 (internal quotation marks omitted). 3 In United States v. Georgia , 546 U.S. 151 (2006), the 4 Supreme Court established a three-step process for analyzing 5 whether Congress has validly abrogated a state's sovereign 6 immunity from suit in the context of a particular Title II claim: 7 [A court must] determine . . . , on a 8 claim-by-claim basis, (1) which aspects of 9 the State's alleged conduct violated Title 10 II; (2) to what extent such misconduct also 11 violated the Fourteenth Amendment; and (3) 12 insofar as such misconduct violated Title II 13 but did not violate the Fourteenth Amendment, 14 whether Congress's purported abrogation of 15 sovereign immunity as to that class of 16 conduct is nevertheless valid. 17 Id.at 159. Thus, if a plaintiff cannot state a Title II claim, 18 the court's sovereign immunity inquiry is at an end. See 19 Buchanan v. Maine , 469 F.3d 158, 172–73 (1st Cir. 2006) ("If the 20 State's conduct does not violate Title II, the court does not 21 proceed to the next step in the [United States v. Georgia ] 22 analysis. The claim ends."). 23

B.The "Reasonable Modification" 24 Requirement of Title II of the ADA 25 "The ADA was passed by large majorities in both Houses 26 of Congress [in 1990] after decades of deliberation and 27 investigation into the need for comprehensive legislation to 28 address discrimination against persons with disabilities." Lane , 29 541 U.S. at 516. "Congress found that 'individuals with 30 disabilities continually encounter various forms of 311The 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 discrimination, including outright intentional exclusion, the 1 discriminatory effects of architectural, transportation, and 2 communication barriers, overprotective rules and policies, [and] 3 failure to make modifications to existing facilities and 4 practices . . . .'" Crowder v. Kitagawa , 81 F.3d 1480, 1483 (9th 5 Cir. 1996) (alteration in original) (quoting 42 U.S.C. § 6 12101(a)(5)). The ADA aims "to provide a clear and comprehensive 7 national mandate for the elimination of discrimination against 8 individuals with disabilities." 42 U.S.C. §§ 12101(b)(1). "It 9 forbids discrimination against persons with disabilities in three 10 major areas of public life: employment, which is covered by Title 11 I of the statute; public services, programs, and activities, 12 which are the subject of Title II; and public accommodations, 13 which are covered by Title III." Lane , 541 U.S. at 516-17. 14 "Title II of the ADA[,'Public Services,'] provides that 15 'no qualified individual with a disability shall, by reason of 16 such disability, be excluded from participation in or be denied 17 the benefits of the services, programs, or activities of a public 18 entity, [1]or be subjected to discrimination by any such entity.'" 19 United States v. Georgia , 546 U.S. at 153 (quoting 42 U.S.C. 20 § 12132). The statute "require[s] that covered entities make 21 reasonable accommodations in order to provide qualified 222"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 alsoinfranote 5.

13 individuals with an equal opportunity to receive benefits from or 1 to participate in programs run by such entities." Tsombanidis v. 2 West Haven Fire Dep't , 352 F.3d 565, 573 (2d Cir. 2003) (internal 3 quotation marks omitted). 4 To prove a violation of Title II, a party 5 must therefore establish: (1) that he is a 6 "qualified individual" with a disability; (2) 7 that he was excluded from participation in a 8 public entity's services, programs or 9 activities or was otherwise discriminated 10 against by a public entity; and (3) that such 11 exclusion or discrimination was due to his 12 disability. 13 Hargrave v. Vermont , 340 F.3d 27, 34–35 (2d Cir. 2003). 14 A "'qualified individual with a disability'" 15 is defined as "an individual with a 16 disability who, with or without reasonable 17 modifications to rules, policies, or 18 practices, the removal of architectural, 19 communication, or transportation barriers, or 20 the provision of auxiliary aids and services, 21 meets the essential eligibility requirements 22 for the receipt of services or the 23 participation in programs or activities 24 provided by a public entity." 25 United States v. Georgia , 546 U.S. at 153-54 (quoting 42 U.S.C. 26 § 12131(2)). "A public entity shall make reasonable 27 modifications in policies, practices, or procedures when the 28 modifications are necessary to avoid discrimination on the basis 29 of disability, unless the public entity can demonstrate that 30 making the modifications would fundamentally alter the nature of 31 the service, program, or activity." 28 C.F.R. § 35.130(b)(7). 2 32 "[A] defendant need not make an accommodation at all if the 3314 requested accommodation 'would fundamentally alter the nature of 1 the service, program, or activity.'" Powell v. National Bd. of 2 Medical Examiners , 364 F.3d 79, 88 (2d Cir. 2004) (quoting 28 3 C.F.R. § 35.130(b)(7)). 4 Typically, "the determination of whether a particular 5 modification is 'reasonable' involves a fact-specific, 6 case-by-case inquiry that considers, among other factors, the 7 effectiveness of the modification in light of the nature of the 8 disability in question and the cost to the organization that 9 would implement it." Staron v. McDonald's Corp. , 51 F.3d 353, 10 356 (2d Cir. 1995) (applying same standard in Title III case as 11 under Title II, seeinfranote 6). It is a factual issue 12 "whether [a] plaintiff['s] proposed modifications . . . amount to 13 'reasonable modifications' which should be implemented, or 14 'fundamental alterations,' which the state may reject." Crowder , 15 81 F.3d at 1485. 16
C.The District Court's Decision as to Whether 17 the Plaintiff is a "Qualified Individual" 18 The district court began its analysis of whether the 19 plaintiff adequately alleged that she is a "qualified individual 20 with a disability" by observing that New York State courts have 21 interpreted a similar filing deadline provision as 22 a condition precedent to the ripening of any 23 rights" or entitlement to disability 24 benefits, and have [concluded] that the 25 statutory filing period may [not] be extended 26 or waived by the State agency, even where the 27 applicant claims that the disability giving 28 rise to his or her claim for disability 29 benefits also rendered him incapable of 3015 asserting his or her claim in a timely 1 manner. 2 Mary Jo C. , 2011 WL 1748572, at *8, 2011 U.S. Dist. LEXIS 49567, 3 at *24-*25 (citations and parenthetical description of cited 4 cases omitted). Relying on our statement in Henrietta D. v. 5 Bloomberg , 331 F.3d 261 (2d Cir. 2003), that the ADA's "use of 6 the term 'qualified' suggests that [courts] must look not to the 7 administration of the program for which the plaintiff is 8 qualified, but rather its formal legal eligibility requirements," 9 id.at 277 (citing 42 U.S.C. §§ 12131–32), the court reasoned 10 that because the filing deadline is deemed a condition precedent 11 to eligibility under state law, the "plaintiff seeks a waiver of 12 an essential eligibility requirement for receipt of disability 13 benefits under [New York law], which the State courts have 14 determined the State defendant is without authority to grant." 15 Mary Jo C. , 2011 WL 1748572, at *9, 2011 U.S. Dist. LEXIS 49567, 16 at *27. 17 The district court then concluded that, unlike 18 requiring "reasonable modification of the State defendant's own 19 rules, policies or practices over which it has discretion," 20 "[r]equiring the State defendant to violate state law is not a 21 reasonable accommodation as a matter of law." Id. , 2011 U.S. 22 Dist. LEXIS 49567, at *27. For this proposition, the court 23 relied principally on Herschaft v. New York Board of Elections , 24 No. 00 CV 2748, 2001 WL 940923, 2001 U.S. Dist. LEXIS 11801 25 (E.D.N.Y. Aug. 13, 2001) (denominated "NOT FOR PUBLICATION"), 2616 aff'd on other grounds , 37 F. App'x 17 (2d Cir. 2002) (summary 1 order), in which the court rejected a pro se plaintiff's 2 requested modification of New York State's deadline for gathering 3 signatures for an election nominating petition. Id. at *1, 2001 4 U.S. Dist. LEXIS 11801, at *1. The Herschaftcourt opined, 5 without citation to authority, that 6 [A] two- to three-week extension[,] . . . 7 although not excessive in scope, is 8 unreasonable simply because it would require 9 the Board of Elections to violate a state 10 statute requiring that signatures for 11 independent nominating petitions be gathered 12 and submitted within a certain time 13 frame. . . . The Board of Elections has no 14 statutory authority to waive the requirement. 15 It is the Court's opinion that an 16 accommodation that would require a defendant 17 to violate an otherwise constitutional state 18 law is inherently unreasonable. 19 20 Id.at *6, 2001 U.S. Dist. LEXIS 11801, at *18-*19 (footnote 21 omitted). The district court also cited Aughe v. Shalala , 885 F. 22 Supp. 1428 (W.D. Wash. 1995), which reasoned that modification of 23 a federal statutory age requirement "would essentially rewrite 24 the statute, [so] it must be seen as a fundamental alteration in 25 the nature of the program," id.at 1432. 26

D.Analysis 27 1. Whether the Filing Deadline is an Essential 28 Eligibility Requirement.With respect to Title II's requirement 29 that a "qualified individual" meet the "essential eligibility 30 requirements" of a covered program, the district court apparently 31 concluded that so long as a mandatory eligibility requirement is 32 set by a state statute, it will be an "essential eligibility 3317 requirement," and any modification of it will work a "fundamental 1 alteration" of the program. On appeal, the NYSLRS argues that 2 "Title II does not require waiver of the essential eligibility 3 requirements for state programs or receipt of state benefits," 4 NYSLRS Br. 13-14, and construes our opinion in Henrietta D. as 5 deciding that "to state a reasonable modification claim under the 6 ADA, the plaintiff must meet the 'formal legal eligibility 7 requirements' for benefits or services," id. at 14 (quoting 8 Henrietta D. , 331 F.3d at 277). 9 At the outset, we note that the portion of Henrietta D. 10 cited by the district court and by NYSLRS arose in an entirely 11 different setting from that presented by this case. There, the 12 state defendant argued that it should be permitted to rebut the 13 plaintiffs' prima facie Title II claim by showing that "the 14 plaintiffs are no less successful in gaining access to benefits 15 than the non-disabled. Such a showing would suggest an 16 alternative reason for the plaintiffs' low rate of obtaining 17 benefits: systemic problems that create obstacles to access for 18 everyone." Henrietta D. , 331 F.3d at 277. The issue we 19 confronted was the meaning of the term "benefits" in the 20 statutory command that "no qualified individual with a disability 21 shall, by reason of such disability, be excluded from 22 participation in or be denied the benefits of the services, 23 programs, or activities of a public entity." 42 U.S.C. § 12132; 24

see331 F.3d at 277. 2518 We concluded that the ADA "plainly define[s] benefits 1 by reference to a plaintiff's facial legal entitlements." 2 Henrietta D. , 331 F.3d at 277. We reasoned further that "[t]he 3 statute's use of the term 'qualified' suggests that we must look 4 not to the administration of the program for which the plaintiff 5 is qualified, but rather its formal legal eligibility 6 requirements." Id.In context, these statements cannot properly 7 be read to define "essential eligibility requirements" as all 8 "formal legal eligibility requirements." That issue was not 9 before the Henrietta D.court. The only question there was 10 whether the term "benefits" referred to the public program as it 11 was in fact administered, or the program as it was intended to 12 operate by law. Seeid.Although it looked to the statute's use 13 of the term "qualified" and the regulations' use of the phrase 14 "essential eligibility requirements" in order to construe the 15 statutory term "benefits," id.at 277-78, the Henrietta D.Court 16 did not construe the phrase "essential eligibility requirement" 17 itself. We thus did not determine there that the phrase 18 "essential eligibility requirements" as it is used in 42 U.S.C. 19 § 12131(2) necessarily means a program's "formal legal 20 eligibility requirements." Because Henrietta D. did not resolve 21 the issue before us, we must construe the relevant statutory 22 language in the first instance. 23 Of course, "[s]tatutory analysis necessarily begins 24 with the plain meaning of a law's text and, absent ambiguity, 25 will generally end there." Bustamante v. Napolitano , 582 F.3d 2619 403, 406 (2d Cir. 2009) (internal quotation marks omitted). At 1 the outset, then, we "review the statutory text, considering the 2 ordinary or natural meaning of the words chosen by Congress, as 3 well as the placement and purpose of those words in the statutory 4 scheme." United States v. Aguilar , 585 F.3d 652, 657 (2d Cir. 5 2009) (internal quotation marks omitted). Here, the relevant 6 text defines a qualified individual as 7 an individual with a disability who, with or 8 without reasonable modifications to rules, 9 policies, or practices , the removal of 10 architectural, communication, or 11 transportation barriers, or the provision of 12 auxiliary aids and services, meets the 13 essential eligibility requirementsfor the 14 receipt of services or the participation in 15 programs or activities provided by a public 16 entity. 17 42 U.S.C. § 12131(2) (emphases added). The text thus 18 distinguishes between two categories of requirements: (1) rules, 19 policies, or practices, which are subject to the requirement of 20 reasonable modification, and (2) essential eligibility 21 requirements, which are not. 22 The fact that Congress provided that "rules, policies, 23 or practices" would be subject to reasonable modification, and 24 contrasted this flexibility with the requirement that a qualified 25 individual meet the "essential eligibility requirements" of a 26 program within the same sentence suggests that Congress meant 27 these categories to have different meanings. "Generally, 28 identical words used in different parts of the same statute are 29 presumed to have the same meaning. But where, as here, Congress 3020 uses certain language in one part of the statute and different 1 language in another, the court assumes different meanings were 2 intended." Cruz-Miguel v. Holder , 650 F.3d 189, 196 (2d Cir. 3 2011) (citations and internal quotation marks omitted). 4 Courts have therefore reasoned that essential 5 eligibility requirements, unlike "rules, policies, [and] 6 practices," 42 U.S.C. § 12131(2), are not subject to reasonable 7 modification or waiver. SeePottgen v. Missouri State High 8 School Activities Ass'n , 40 F.3d 926, 930 (8th Cir. 1994) 9 (observing that when an individual cannot meet an eligibility 10 requirement determined to be essential, "the only possible 11 accommodation is to waive the essential requirement itself. . . . 12 [But] [w]aiving an essential eligibility standard would 13 constitute a fundamental alteration in the nature of the . . . 14 program [at issue].") (footnote omitted); cf. PGA Tour, Inc. v. 15 Martin , 532 U.S. 661, 689 (2001) ("[T]he waiver of an essential 16 rule of [a golf] competition for anyone [under Title III of the 17 ADA] would fundamentally alter the nature of [the] 18 tournaments."). 19 "[O]ne of the most basic interpretive canons[ is] that 20 a statute should be construed so that effect is given to all its 21 provisions, so that no part will be inoperative or superfluous, 22 void or insignificant." Corley v. United States , 556 U.S. 303, 23 314 (2009) (internal quotation marks and alteration omitted); see 24 alsoDuncan v. Walker , 533 U.S. 167, 174 (2001) ("It is our duty 25 to give effect, if possible, to every clause and word of a 2621 statute." (internal quotation marks omitted)). In light of the 1 fact that Congress used the phrases "rules, policies, and 2 practices" and "essential eligibility requirements" as two 3 distinct categories, the application of this canon of statutory 4 construction presents a fundamental obstacle to construing 5 "essential eligibility requirements" to mean all "formal legal 6 eligibility requirements," as the district court did and as the 7 NYSLRS would have us do too. 8 The statute uses the phrase "essentialeligibility 9 requirements," not simply "eligibility requirements." Had 10 Congress intended "all formal legal eligibility requirements" to 11 be non-waivable, the phrase "eligibility requirements" would have 12 sufficed; it would have been unnecessary to use the phrase 13 "essentialeligibility requirements." Title II applies to the 14 "services, programs, or activities of a public entity," 42 U.S.C. 15 § 12132, which, being public, will typically define their 16 eligibility requirements wholly by applicable legal requirements. 17 That is the case here –- all the relevant eligibility 18 requirements for participation in the program are set by law. If 19 "essential eligibility requirements" meant "all formal legal 20 eligibility requirements," every eligibility requirement would be 21 "essential" and non-waivable, impermissibly rendering the word 22 "essential" superfluous. Therefore, the term "essential 233NYSLRS argues that the "rules, policies, [and] practices" subject to reasonable modification under Title II do not include state statutes. SeeNYSLRS 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.Hargravethus casts doubt on the state's argument that the phrase "rules, policies, and practices" never includes state statutes.
22 eligibility requirements" does not refer to all formal legal 1 eligibility requirements. 3 2 Cases interpreting the "essential eligibility 3 requirement" language indicate that whether an eligibility 4 requirement is essential is determined by consulting the 5 importance of the requirement to the program in question. See, 64Pottgen '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 inDeVargas 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 Pottgencourt largely
23 e.g. , Pottgen , 40 F.3d at 930 ("[T]o determine whether [the 1 plaintiff] is a 'qualified individual' under [Title II of] the 2 ADA, we must first determine whether the age limit is an 3 essential eligibility requirement by reviewing the importance of 4 the requirement to the interscholastic baseball program [at 5 issue]."); id.at 929 (deciding that high school baseball 6 program's age limit was essential because "[a]n age limit helps 7 reduce the competitive advantage flowing to teams using older 8 athletes; protects younger athletes from harm; discourages 9 student athletes from delaying their education to gain athletic 10 maturity; and prevents over-zealous coaches from engaging in 11 repeated red-shirting to gain a competitive advantage. These 12 purposes are of immense importance in any interscholastic sports 13 program."). 4 14adopted its reasoning as to the Rehabilitation Act claims when it analyzed the Title II claims in the case before it. See40 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. SeeHenrietta 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 This reading is reenforced by the regulations 1 implementing5the relevant section of the ADA, which require "[a] 2 public entity [to] make reasonable modifications in policies, 3 practices, or procedures when the modifications are necessary to 4 avoid discrimination on the basis of disability, unless the 5 public entity can demonstrate that making the modifications would 6 fundamentally alter the nature of the service, program, or 7 activity." 28 C.F.R. § 35.130(b)(7). The regulations indicate 8 that "essential eligibility requirements" are those requirements 96Title 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 in1990 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 in1990 U.S.C.C.A.N. 445, 474; see alsoKinney v. Yerusalim, 9 F.3d 1067, 1073 n.6 (3d Cir. 1993) (legislative history indicates that 25 without which the "nature" of the program would be "fundamentally 1 alter[ed]." Id.These terms seem to us clearly to contemplate 2 that some relatively minor eligibility requirements, even if set 3 by statute, will not be deemed essential because they will not be 4 necessary to prevent the fundamental alteration of the program's 5

nature. 6 The Supreme Court's decision in PGA Tour, Inc. v. 7 Martin , 532 U.S. 661 (2001), further illustrates the point. The 8 plaintiff in Martinwas a professional golfer with a disability 9 that prevented him from walking an 18-hole golf course. Id. at 10 668-69. He requested permission to use a golf-cart in 11 contravention of the PGA's rules as a reasonable accommodation 12 under Title III of the ADA, 6and the PGA defended on the basis 13Titles 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 byZervos 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 alsoBartlett 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 that allowing use of the golf-cart would work a fundamental 1 alteration in the nature of the tournament. Id. at 670-71. 2 The Court began its analysis by observing two ways in 3 which a modification of the PGA's rules might fundamentally alter 4 the tournament: 5 It might alter such an essential aspect of 6 the game of golf that it would be 7 unacceptable even if it affected all 8 competitors equally; changing the diameter of 9 the hole from three to six inches might be 10 such a modification. Alternatively, a less 11 significant change that has only a peripheral 12 impact on the game itself might nevertheless 13 give a disabled player, in addition to access 14 to the competition as required by Title III, 15 an advantage over others and, for that 16 reason, fundamentally alter the character of 17 the competition. 18 Id.at 682-83 (footnote omitted). 19 The Court reasoned that "the use of carts is not itself 20 inconsistent with the fundamental character of the game of golf" 21 because "the essence of the game [is] shotmaking –- using clubs 22 to cause a ball to progress from the teeing ground to a hole some 23 distance away with as few strokes as possible." Id. at 683. It 2427 therefore concluded that "the walking rule is at best peripheral 1 to the nature of [the PGA's] athletic events, and thus it might 2 be waived in individual cases without working a fundamental 3 alteration." Id.at 689; see alsoid.at 690 ("A modification 4 that provides an exception to a peripheral tournament rule 5 without impairing its purpose cannot be said to 'fundamentally 6 alter' the tournament."). The PGA's argument to the contrary 7 that "all the substantive rules for its . . . competitions are 8 sacrosanct and cannot be modified under any circumstances [was 9 for that reason] effectively a[n] [incorrect] contention that it 10 is exempt from Title III's reasonable modification requirement." 11 Id.at 689. But "Congress intended that an entity like the 12 PGA . . . carefully weigh the purpose, as well as the letter, of 13 the rule before determining that no accommodation would be 14 tolerable." Id.at 691. 15 Rather than simply deferring to the entity providing 16 the service in question, deeming the rules as set by that entity 17 as "sacrosanct," id. at 689, and construing any modification of 18 those rules as a fundamental alteration in the nature of the 19 service, the MartinCourt undertook an independent analysis of 20 the importance of a rule for the service in light of the 21 service's purpose to determine whether a requested modification 22 would fundamentally alter its nature. Similarly here, we read 23 the ADA to require us to analyze the importance of an eligibility 24 requirement for a public program or benefit, rather than to defer 25 automatically to whatever "formal legal eligibility requirements" 267Our citation to Martinshould in no way be construed asconflating 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 may exist, no matter how unimportant for the program in question 1 they may be. 7 2 And, perhaps most fundamentally, reading "essential 3 eligibility requirements" to mean all formal legal eligibility 4 requirements seems to us to run counter to the ADA's broad 5 remedial purpose by allowing states to insist that whatever legal 6 requirements they may set are never subject to reasonable 7 modification under Title II of the ADA. Were we to adopt such a 8 construction of the ADA, the class of "rules, policies, or 9 practices" subject to reasonable modification under Title II 10 would be vanishingly small, and nearly all eligibility 11 requirements for the receipt of public services would be non12 waivable "essential" eligibility requirements. 13 "In the ADA, Congress provided [a] broad mandate" to 14 "effectuate its sweeping purpose[ to] . . . forbid[] 15 discrimination against disabled individuals in major areas of 16 public life, [including] . . . public services . . . ." Id. at 17 675. "As a remedial statute, the ADA must be broadly construed 18 to effectuate its purpose of providing a clear and comprehensive 19 national mandate for the elimination of discrimination against 20 individuals with disabilities." Noel v. New York City Taxi and 2129 Limousine Comm'n , 687 F.3d 63, 68 (2d Cir. 2012) (internal 1 quotation marks omitted). To adopt the NYSLRS's construction 2 would be to render Title II effectively impotent, which would be 3 contrary to the broad remedial purpose of the ADA –- an act that 4 "has been described as 'a milestone on the path to a more decent, 5 tolerant, progressive society.'" Martin , 532 U.S. at 675 6 (quoting Bd. of Trustees of Univ. of Ala. v. Garrett , 531 U.S. 7 356, 375 (2001) (Kennedy, J., concurring)). 8 Finally, here, as the plaintiff and the amicipoint 9 out, New York State already waives or extends the filing deadline 10 for disability retirement benefits for certain classes of 11 individuals: For example, an NYSLRS member on unpaid medical 12 leave may file an application within a year after termination of 13 employment, seeN.Y. Ret. and Soc. Sec. Law § 605(b)(2), and an 14 NYSLRS member with "a qualifying World Trade Center condition" 15 faces no deadline whatsoever, seeid.The fact that the State 16 itself waives the deadline in the enumerated circumstances 17 strongly suggests that the filing deadline is not "essential." 18 Cf.Martin , 532 U.S. at 685 ("[T]he walking rule is not an 19 indispensable feature of tournament golf either. [The PGA] 20 permits golf carts to be used [by non-disabled golfers] in 21 [several of its tournaments other than the one in question]."). 22 At this stage, it cannot be said as a matter of law that the 23 filing deadline is an essential eligibility requirement, and 24 therefore dismissal is inappropriate because it is not clear from 25 the face of the complaint that the plaintiff's allegations are 2630 "insufficient as a matter of law to support a claim upon which 1 relief may be granted." Halebian , 644 F.3d at 131. 2 As the plaintiff points out, "[t]his Court has not yet 3 established a broad rule defining when requirements imposed by a 4 state or local government constitute 'essential eligibility 5 requirements' of a program [so] as to render an individual 6 eligible for protection under Title II of the ADA." Pl.'s Reply 7 Br. 4. Cf.Parker v. Universidad de Puerto Rico , 225 F.3d 1, 4 8 (1st Cir. 2000) ("Although Title II of the ADA took effect on 9 January 26, 1992, [as of August 2000,] there [was] sparse 10 case[]law interpreting its scope and limits." (footnote 11 omitted)). But we need not do so today. In the posture of this 12 appeal, it is sufficient to conclude that the district court's 13 view that the ADA's reference to "essential eligibility 14 requirements" necessarily refers to each and every formal legal 15 eligibility requirement imposed for participation in a public 16 program or benefit is mistaken. In the context of a motion to 17 dismiss, we ask only whether the complaint states a claim that is 18 in this regard plausible on its face. Twombly, 550 U.S. at 570. 19 For the foregoing reasons, we conclude that it does. 20 2. Whether Waiving the Filing Deadline Would be a 21 Reasonable Modification.The district court also concluded that 22 "[r]equiring the State defendant to violate state law is not a 23 reasonable accommodation as a matter of law." Mary Jo C. , 2011 24 WL 1748572, at *9, 2011 U.S. Dist. LEXIS 49567, at *27. The 25 court's construction of the term "reasonable modification" thus 2631 provided another ground upon which it granted the NYSLRS's motion 1 to dismiss. As a matter of both statutory construction and 2 federal preemption, we must inquire whether Congress, when it 3 enacted Title II's reasonable modification provision, intended to 4 require modification of state laws under certain circumstances, 5 thereby preempting them, or whether it instead intended the 6 reasonable modification provision to stop short of encroaching on 7 state laws. See, e.g. , DiFiore v. American Airlines, Inc. , 646 8 F.3d 81, 85 (1st Cir. 2011) ("[F]ederal preemption[] is a 9 question of statutory construction . . . ."). 10 Under the United States Constitution's Supremacy 11 Clause, the "Constitution, and the Laws of the United States 12 which shall be made in Pursuance thereof . . . shall be the 13 supreme Law of the Land; . . . any Thing in the Constitution or 14 Laws of any State to the Contrary notwithstanding." U.S. Const. 15 art. VI, cl. 2. "Under the doctrine of federal preemption, 16 'state laws that conflict with federal law are without effect.'" 17 Niagara Mohawk Power Corp. v. Hudson River-Black River Regulating 18 Dist. , 673 F.3d 84, 94 (2d Cir. 2012) (quoting Altria Grp. Inc. 19 v. Good , 555 U.S. 70, 76, (2008)). "[T]he purpose of Congress is 20 the ultimate touchstone of pre-emption analysis." Cipollone v. 21 Liggett Grp., Inc. , 505 U.S. 504, 516 (1992) (internal quotation 22 marks omitted). "Absent clear congressional intent to the 23 contrary, federal preemption of state law is not favored . . . ." 24 Marsh v. Rosenbloom, 499 F.3d 165, 177-78 (2d Cir. 2007). 2532 "Congress may manifest its intent to preempt 1 state or local law explicitly, through the 2 express language of a federal statute, or 3 implicitly, through the scope, structure, and 4 purpose of the federal law." [N.Y. SMSA Ltd. 5 P'ship v. Town of] Clarkstown , 612 F.3d [97, 6 104 (2d Cir. 2010)]. Thus, preemption "may 7 be either express or implied, and is 8 compelled whether Congress' command is 9 explicitly stated in the statute's language 10 or implicitly contained in its structure and 11 purpose." Shaw v. Delta Air Lines, Inc. , 463 12 U.S. 85, 95 (1983) (internal quotation marks 13 omitted). 14 Niagara Mohawk Power Corp. , 496 F.3d at 95. 15 "[T]he ADA does not contain an express preemption 16 provision . . . ." Rubietta v. National R.R. Passenger Corp. , 17 No. 08 Civ. 7117, 2012 WL 345909, at *4, 2012 U.S. Dist. LEXIS 18 12047, at *10 (N.D. Ill. Jan 30, 2012). "Courts have recognized 19 two types of implied preemption: (1) field preemption, where 20 Congress has manifested an intent to 'occupy the field' in a 21 certain area . . . ; and (2) conflict preemption, where state law 22 'actually conflicts with federal law.'" Niagara Mohawk Power 23 Corp. , 673 F.3d at 95 (quoting English v. Gen. Elec. Co. , 496 24 U.S. 72, 79 (1990)). 25 "An actual conflict between state and federal law 26 exists when compliance with both federal and state regulations is 27 a physical impossibility, or when state law is an obstacle to the 28 accomplishment and execution of the full purposes and objectives 29 of Congress." Marsh , 499 F.3d at 177 (internal quotation marks 30 and citations omitted). An actual conflict also exists "where 31 federal law is in 'irreconcilable conflict' with state law." 3233 Levitin v. PaineWebber, Inc. , 159 F.3d 698, 705 (2d. Cir. 1998) 1 (quoting Barnett Bank v. Nelson , 517 U.S. 25, 31 (1996)). 2 [W]hen the question is whether a Federal act 3 overrides a state law, the entire scheme of 4 the statute must of course be considered and 5 that which needs must be implied is of no 6 less force than that which is expressed. If 7 the purpose of the act cannot otherwise be 8 accomplished -- if its operation within its 9 chosen field else must be frustrated and its 10 provisions be refused their natural effect -- 11 the state law must yield to the regulation of 12 Congress within the sphere of its delegated 13 power. 14 Crosby v. National Foreign Trade Council , 530 U.S. 363, 373 15 (2000) (quoting Savage v. Jones , 225 U.S. 501, 533 (1912)). 16 "What is a sufficient obstacle is a matter of judgment, to be 17 informed by examining the federal statute as a whole and 18 identifying its purpose and intended effects." Id. 19 "Since preemption claims turn on Congress's intent, we 20 begin as we do in any exercise of statutory construction with the 21 text of the provision in question, and move on, as need be, to 22 the structure and purpose of the Act in which it occurs." 23 Metropolitan Taxicab Bd. of Trade v. City of New York , 615 F.3d 24 152, 156 (2d Cir. 2010) (quoting N.Y. State Conference of Blue 25 Cross & Blue Shield Plans v. Travelers Ins. Co. , 514 U.S. 645, 26 655 (1995)) (brackets omitted). At the outset, we find nothing 27 in the statutory phrase "reasonable modification" to suggest that 28 Congress intended to exclude modifications that require violation 29 or waiver of mandatory state statutes in some circumstances. In 30 light of the broad scope and purpose of the ADA, we think it 3134 unlikely that Congress would have hidden such a significant 1 limitation in such an anodyne statutory phrase. When Congress 2 did restrict the scope of the ADA, it did so explicitly. See, 3

e.g. , 42 U.S.C. §§ 12208, 12210 (explicitly excluding certain 4 individuals from the definition of "qualified individual with a 5 disability"); id.§ 12111(5)(A) (excluding employers having fewer 6 than fifteen employees from the coverage of Title I). 7 As noted above, "[i]n the ADA, Congress provided [a] 8 broad mandate" to "effectuate its sweeping purpose[ to] . . . 9 forbid[] discrimination against disabled individuals in major 10 areas of public life, [including] . . . public services . . . ." 11 Martin , 532 U.S. at 675. "Congress found that 'individuals with 12 disabilities continually encounter various forms of 13 discrimination, including outright intentional exclusion, the 14 discriminatory effects of architectural, transportation, and 15 communication barriers, overprotective rules and policies, [and] 16 failure to make modifications to existing facilities and 17 practices . . . .'" Crowder , 81 F.3d at 1483 (alteration in 18 original) (quoting 42 U.S.C. § 12101(a)(5)). The ADA aims "to 19 provide a clear and comprehensive national mandate for the 20 elimination of discrimination against individuals with 21 disabilities." 42 U.S.C. § 12101(b)(1). Title II of the ADA 22 represents Congress's attempt to apply this "clear and 23 comprehensive national mandate" to the "services, programs, or 24 activities," 42 U.S.C. § 12132, of "'any State or local 25 government' and 'any department, agency, . . . or other 2635 instrumentality of a State,'" United States v. Georgia , 546 U.S. 1 at 154 (omission in original) (quoting 42 U.S.C. § 12131(1)). 2 And although Congress did not include an express preemption 3 provision, it did include a provision expressly abrogating the 4 sovereign immunity of the states. See42 U.S.C. § 12202. 5 The "natural effect" of Title II's "reasonable 6 modification" requirement, Crosby, 530 U.S. at 373, in light of 7 the foregoing observations, requires preemption of inconsistent 8 state law when necessary to effectuate a required "reasonable 9 modification." Congress clearly meant Title II to sweep broadly. 10 If all state laws were insulated from Title II's reasonable 11 modification requirement solely because they were state laws, 12 "state law [would serve as] an obstacle to the accomplishment and 13 execution of the full purposes and objectives of Congress" in 14 enacting Title II. Marsh , 499 F.3d at 177. Far from 15 "provid[ing] a clear and comprehensive national mandate for the 16 elimination of discrimination against individuals with 17 disabilities," 42 U.S.C. § 12101(b)(1), the ADA would be 18 powerless to work any reasonable modification in any requirement 19 imposed by state law, no matter how trivial the requirement and 20 no matter how minimal the costs of doing so. We conclude that 21 the ADA's reasonable modification requirement contemplates 22 modification to state laws, thereby permitting preemption of 238The same result obtains when considering whether "federal law is in 'irreconcilable conflict' with state law." Levitin , 159 F.3d at 705. As discussed supraPart 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 inconsistent state laws, when necessary to effectuate Title II's 1 reasonable modification provision. 8 2 Our conclusion is further supported by Hargrave

. 3 There, as we have discussed, we upheld an injunction of a 4 facially discriminatory Vermont statute. Vermont had argued that 5 in the context of the statute and implementing regulation 6 requiring states "to make 'reasonable modifications in policies 7 [or] practices' in order to avoid discrimination unless the 8 modifications would constitute a fundamental alteration to the 9 relevant 'service, program, or activity,'" Hargrave , 340 F.3d at 10 38 (quoting 28 C.F.R. § 35.130(b)(7)), enjoining the law would 11 fundamentally alter the program at issue. Rejecting this 12 argument and upholding the injunction, we spoke of the "ADA's 13 preemptionof these statutory provisions." Id.at 38 n.10 14 (emphasis added). While the NYSLRS argues that Hargrave"did not 15 hold that Title II preempted facially nondiscriminatory state 1637 laws or mandated waiver of such laws," NYSLRS Br. at 21, it 1 provides no persuasive reason why, in light of the concerns 2 discussed above, Title II would preempt facially discriminatory 3 laws in pursuit of its broad purpose, but fail to preempt state 4 law when necessary to achieve a reasonable modification to 5 accomplish the same broad goals. 6 Last, we observe that the proposition that the ADA 7 preempts inconsistent state law when appropriate and necessary to 8 effectuate a reasonable accommodation under Title II is also 9 consistent with decisions from our sister Circuits. See,e.g. , 10 Barber v. Colorado Dep't of Revenue , 562 F.3d 1222, 1232-33 (10th 11 Cir. 2009) (ultimately concluding that there was no conflict 12 between state law and the ADA in the case before it, but 13 observing that the court "in no way affirm[ed] the district 14 court's conclusion that '[a]n accommodation that would have 15 required defendants to willfully ignore or violate the law is per 16

senot reasonable.'" (citation omitted)); Quinones v. City of 17 Evanston, Ill. , 58 F.3d 275, 277 (7th Cir. 1995) ("[The 18 defendant] believes that it is compelled to follow the directive 19 from the state, but the Supremacy Clause of the Constitution 20 requires a different order of priority. A discriminatory state 21 law is not a defenseto liability under federal law; it is a 22

sourceof liability under federal law." (emphasis in original)); 23 Williams v. Gen. Foods Corp. , 492 F.2d 399, 404 (7th Cir. 1974) 24 (similar). As the Ninth Circuit explained: 2538 The court's obligation under the ADA . . . is 1 to ensure that the decision reached by the 2 state authority is appropriate under the law 3 and in light of proposed alternatives. 4 Otherwise, any state could adopt requirements 5 imposing unreasonable obstacles to the 6 disabled, and when haled into court could 7 evade the antidiscrimination mandate of the 8 ADA merely by explaining that the state 9 authority considered possible modifications 10 and rejected them. 11 We are mindful of the general principle that 12 courts will not second-guess the public 13 health and safety decisions of state 14 legislatures acting within their traditional 15 police powers. However, [under federal] 16 antidiscrimination laws such as the ADA which 17 require reasonable modifications to public 18 health and safety policies, it is incumbent 19 upon the courts to insure that the mandate of 20 federal law is achieved. 21 Crowder , 81 F.3d at 1485 (citation omitted). 22 The NYSLRS argues that "Title II . . . requires 23 reasonable modification only of 'rules, policies, or practices' 24 –- not state statutes," NYSLRS Br. 19, and seeks to distinguish 25 Crowder , which contemplated the modification of a mandatory 26 Hawaii State administrative regulation rather than a state 27 statute, seeCrowder , 81 F.3d at 1481-85, on this ground, NYSLRS 28 Br. 21 n.6. But as a general rule, duly promulgated state 29 regulations have the force of law for these purposes as do 30 statutes. See, e.g. , State v. Kotis , 91 Hawai'i 319, 331, 984 31 P.2d 78, 90 (1999) (Under Hawaii law, "[a]dministrative rules, 32 like statutes, have the force and effect of law."); Allstate Ins. 33 Co. v. Rivera , 12 N.Y.3d 602, 608, 911 N.E.2d 817, 820, 883 34 N.Y.S.2d 755, 758 (2009) (under New York law, "[a] duly 3539 promulgated regulation . . . has the force of law." (internal 1 quotation marks omitted)). From the standpoint of the ADA's 2 preemptive force, we can discern no reason to distinguish between 3 the preemption of state statutes and state regulations. Cf. 4 Crosby, 530 U.S. at 372 n.6 (noting that "a variety of state laws 5 and regulations may conflict with a federal statute" and be 6 preempted). And for the reasons discussed above, we do not read 7 the ADA to prohibit reasonable modifications to state statutes 8 when appropriate. 9 We have examined NYSLRS's other arguments regarding 10 Title II and find them unpersuasive. 11 We therefore conclude that the district court erred in 12 dismissing the plaintiff's Title II claim against the NYSLRS on 13 the ground that "[r]equiring the State defendant to violate state 14 law is not a reasonable accommodation as a matter of law." Mary 15
Jo C. , 2011 WL 1748572, at *9, U.S. Dist. LEXIS 49567, at *27. 16 Because "the determination of what constitutes reasonable 17 modification is [a] highly fact-specific, . . . case-by-case 18 inquiry," "[w]hether the plaintiff['s] proposed alternative" to 19 New York's filing deadline "constitute[s] [a] reasonable 20 modification[] or [a] fundamental alteration[] cannot be 21 determined as a matter of law on the record before us." Crowder , 22 81 F.3d at 1485; see alsoMcGary v. City of Portland , 386 F.3d 23 1259, 1270 (9th Cir. 2004) ("[T]he question of what constitutes a 24 reasonable accommodation under the ADA 'requires a fact-specific, 25 individualized analysis of the disabled individual's 2640 circumstances and the accommodations that might allow him to meet 1 the program's standards.'" (quoting Wong v. Regents of Univ. of 2 Cal. , 192 F.3d 807, 818 (9th Cir. 1999)). 3

E.The District Court's Decision as to Whether the 4 Plaintiff Adequately Alleged that She is Disabled 5 Again: Title II of the ADA provides that "no qualified 6 individual with a disabilityshall, by reason of such disability, 7 be excluded from participation in or be denied the benefits of 8 the services, programs, or activities of a public entity, or be 9 subjected to discrimination by any such entity." 42 U.S.C. 10 § 12132 (emphasis added). A "disability" is defined as "(A) a 11 physical or mental impairment that substantially limits one or 12 more major life activities of such individual; (B) a record of 13 such an impairment; or (C) being regarded as having such an 14 impairment . . . ." 42 U.S.C. § 12102(1). "Major life 15 activities" are further defined to include "caring for oneself, 16 performing manual tasks, seeing, hearing, eating, sleeping, 17 walking, standing, lifting, bending, speaking, breathing, 18 learning, reading, concentrating, thinking, communicating, and 19 working." 42 U.S.C. § 12102(2). 20 Although neither defendant argued to the district court 21 that the plaintiff had failed to plead adequately that she was 22 "disabled" within the meaning of the ADA, the district court 23 considered the issue sua sponte . It concluded: 24 The complaint does not sufficiently allege 25 that plaintiff has a "disability" within the 26 meaning of the ADA. Although plaintiff 27 alleges that she has suffered from an 2841 unidentified mental illness since 1 adolescence, she does not allege any 2 additional facts plausibly suggesting that 3 such mental illness substantially limited one 4 or more of her major life activities. 5 Accordingly, plaintiff's complaint does not 6 state a cognizable claim under Title II of 7 the ADA. See, e.g. , Tylicki v. St. Onge , 297 8 F. App'x 65, 67 (2d Cir. Oct. 28, 2008) 9 (finding that the plaintiff's complaint did 10 not adequately plead a disability under Title 11 II of the ADA where it contained no 12 allegations describing how his supposed 13 mental condition substantially limited a 14 major life activity). 15 Mary Jo C. , 2011 WL 1748572, at *7, 2011 U.S. Dist. LEXIS 49567, 16 at *21. 17 Although the district court noted that it "would be 18 possible for plaintiff to amend her Title II claims to 19 sufficiently plead this element as against the Library unless 20 those claims would otherwise be futile," id. at *10 n.7, 2011 21 U.S. Dist. LEXIS 49567, at *33 n.7, it did not afford the 22 plaintiff this opportunity because it concluded that all of the 23 plaintiff's claims against both defendants were barred on other 24 sufficient, independent grounds. 25 On appeal, the plaintiff submits that "the failure to 26 provide her with an opportunity to present evidence of disability 27 can be cured by the usual practice of this Court to grant a party 28 leave to amend the complaint on a Rule 12(b)(6) motion." Pl.'s 29 Br. 17 (citing Bellikoff v. Eaton Vance Corp. , 481 F.3d 110, 118 30 (2d Cir. 2007) ("[W]hen a motion to dismiss is granted, the usual 31 practice is to grant leave to amend the complaint." (internal 32 quotation marks omitted))). 3342 Inasmuch as the district court thought that it "would 1 be possible" for the plaintiff to amend her allegations regarding 2 her disability such that at least some claims could go forward, 3 Mary Jo C. , 2011 WL 1748572, at *10 n.7, 2011 U.S. Dist. LEXIS 4 49567, at *33 n.7, in light of the fact that the plaintiff has 5 now requested leave to amend on appeal, and since our decision 6 today removes the futility the district court saw in allowing the 7 plaintiff to amend her complaint (at least as to claims against 8 the NYSLRS), we decline to pass on the sufficiency of the 9 plaintiff's allegations of disability on appeal. Instead, we 10 vacate the district court's decision in this regard, and remand 11 with instructions to grant the plaintiff's motion for leave to 12 amend her complaint to plead adequate allegations of disability 13 if such a motion is made. 14

F.Title II's Abrogation of Sovereign Immunity 15 NYSLRS argues that even if the plaintiff can state a 16 claim against it under Title II, Title II "fails to validly 17 abrogate the State's sovereign immunity for the reasonable 18 modification claim made here." NYSLRS Br. 22. The plaintiff 19 responds that, "[a]s appellant Mary Jo C. seeks injunctive relief 20 in connection with her claim against NYSLRS, this Court can avoid 21 adjudication of the Eleventh Amendment issue by permitting the 22 appellant to amend her complaint to" name a state official in his 23 official capacity as a defendant. Pl.'s Reply Br. 13. 24 "Under the well-known exception to [the Eleventh 25 Amendment's grant of sovereign immunity from suit] first set 2643 forth in Ex parte Young , 209 U.S. 123 (1908), . . . 'a plaintiff 1 may sue a state official acting in his official capacity -- 2 notwithstanding the Eleventh Amendment -- for prospective, 3 injunctive relief from violations of federal law.'" State 4 Employees Bargaining Agent Coalition v. Rowland , 494 F.3d 71, 95 5 (2d Cir. 2007) (quoting In re Deposit Ins. Agency, 482 F.3d 612, 6 617 (2d Cir. 2007)); see alsoHarris v. Mills , 572 F.3d 66, 72 7 (2d Cir. 2009) (similar). 8 Because of our well-settled policy of avoiding the 9 unnecessary adjudication of constitutional issues, see generally 10 Horne v. Coughlin , 191 F.3d 244, 246 (2d Cir.), cert. denied , 528 11 U.S. 1052 (1999), and because the NYSLRS concedes that the 12 "plaintiff could potentially seek injunctive relief from the 13 State Comptroller under Ex parte Young ," NYSLRS Supp. Br. 17, we 14 decline to address the constitutionality of Title II's abrogation 15 of the State's sovereign immunity, and remand with instructions 16 to the district court to allow the plaintiff leave to amend her 17 complaint in an attempt to invoke the doctrine of Ex parte Young

. 18 II. Title II Claim Against the Library 19

A.The District Court's Decision 20 The plaintiff also asserted a claim against the Library 21 alleging that its failure to file an application on her behalf or 22 to reclassify her termination as an unpaid leave of absence 23 violated Title II of the ADA. As noted, the ADA "forbids 24 discrimination against persons with disabilities in three major 25 areas of public life: employment, which is covered by Title I of 269The 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, seeid.§ 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 the statute; public services, programs, and activities, which are 1 the subject of Title II; and public accommodations, which are 2 covered by Title III." Lane , 541 U.S. at 516-17. The district 3 court dismissed this claim because it concluded that the 4 plaintiff, an employee of the Library, could bring a claim 5 against her employer under Title I of the ADA but not under Title 6

II. 7 Title I of the ADA, "employment," provides in pertinent 8 part that "[n]o covered entity shall discriminate against a 9 qualified individual on the basis of disability in regard to job 10 application procedures, the hiring, advancement, or discharge of 11 employees, employee compensation, job training, and other terms, 12 conditions, and privileges of employment." 42 U.S.C. § 12112(a). 13 Title I applies to government employers, which are "covered 14 entities." 9 15 Noting that the "Supreme Court" and "the Second Circuit 16 ha[ve] not expressly considered th[e] issue" of whether Title II 17 applies to employment discrimination, Mary Jo C. , 2011 WL 18 1748572, at *11-*12, 2011 U.S. Dist. LEXIS 49567, at *36, and 1945 acknowledging that "courts are split" on the issue, id. at *11, 1 2011 U.S. Dist. LEXIS 49567, at *35, the district court followed 2 what it described as the "well-reasoned decisions of the most 3 recent district court cases in this Circuit," to conclude that 4 "Title I of the ADA is the exclusive remedy for plaintiff's 5 claims of discrimination against the Library, all of which relate 6 to the 'terms, conditions, and privileges of [her] employment' 7 with that entity," id.at *12, 2011 U.S. Dist. LEXIS 49567, at 8 *39 (alteration in original) (quoting 42 U.S.C. § 12112(a)). 9 The district court also cited Zimmerman v. Oregon Dep't 10 of Justice , 170 F.3d 1169 (9th Cir. 1999), as the leading case 11 concluding that public employees' exclusive remedy against their 12 employers under the ADA is Title I. Zimmermanconcluded that 13 "Congress unambiguously expressed its intent for Title II not to 14 apply to employment." Id.at 1173. It reasoned that a "common 15 understanding" of the term "services, programs, or activities" in 16 Title II's command that "no qualified individual with a 17 disability shall, by reason of such disability, be excluded from 18 participation in or be denied the benefits of the services, 19 programs, or activities of a public entity," referred "only to 20 the 'outputs' of a public agency, not to 'inputs' such as 21 employment." Id.at 1174. 22 First, employment by a public entity is not 23 commonly thought of as a "service, program, 24 or activity of a public entity." Second, the 25 "action" words in the sentence presuppose 26 that the public entity provides an output 27 that is generally available, and that an 2846 individual seeks to participate in or receive 1 the benefit of such an output. 2 Consider, for example, how a Parks Department 3 would answer the question, "What are the 4 services, programs, and activities of the 5 Parks Department?" It might answer, "We 6 operate a swimming pool; we lead nature 7 walks; we maintain playgrounds." It would 8 not answer, "We buy lawnmowers and hire 9 people to operate them." The latter is a 10 means to deliver the services, programs, and 11 activities of the hypothetical Parks 12 Department, but it is not itself a service, 13 program, or activity of the Parks Department. 14 Similarly, consider how a member of the 15 public would answer the question, "What are 16 the services, programs, and activities of the 17 Parks Department in which you want to 18 participate, or whose benefits you seek to 19 receive?" The individual might answer, "I 20 want to participate in the Wednesday night 21 basketball league, or find out about the free 22 children's programs for the summer months." 23 The individual would not logically answer, "I 24 want to go to work for the Parks Department." 25 Id. 26 The Zimmermancourt concluded that "when viewed as a 27 whole, the text, context and structure of the ADA show 28 unambiguously that Congress did not intend for Title II to apply 29 to employment. Under these circumstances, we do not resort to 30 legislative history, and we do not defer to the Attorney 31 General's regulation," id.at 1178, which provides that Title II 32 does apply to employment actions against public employers, see28 33 C.F.R. § 35.140(a). ContraBledsoe v. Palm Beach County Soil & 34 Water Conservation Dist. , 133 F.3d 816, 821 (11th Cir. 1998) 35 ("Extensive legislative commentary regarding the applicability of 36 Title II to employment discrimination [in the ADA's legislative 3747 history] . . . is so pervasive as to belie any contention that 1 Title II does not apply to employment actions.") 2 In addition to cases following Zimmerman 's analysis, 3 the district court noted dicta from the Supreme Court's decision 4 in Board of Trustees of University of Alabama v. Garrett , 531 5 U.S. 356 (2001): 6 [N]o party has briefed the question of 7 whether Title II of the ADA . . . is 8 available for claims of employment 9 discrimination when Title I of the ADA 10 expressly deals with that subject. See, 11 e.g. , Russello v. United States , 464 U.S. 16, 12 23 (1983) ("[W]here Congress includes 13 particular language in one section of a 14 statute but omits it in another section of 15 the same Act, it is generally presumed that 16 Congress acts intentionally and purposely in 17 the disparate inclusion or exclusion" 18 (internal quotation marks omitted)). 19 20 Id.at 360 n.1. Like the district court here, other district 21 courts in this Circuit have cited this language before reaching 22 the conclusion that Title II does not apply to employee claims 23 against a public employer. SeeFleming v. State Univ. of N.Y. , 24 502 F. Supp. 2d 324, 332 (E.D.N.Y. 2007). 25

B.Analysis 26 "[S]tatutory analysis necessarily begins with the plain 27 meaning of the law's text, and, absent ambiguity, will generally 28 end there." Dobrova v. Holder , 607 F.3d 297, 301 (2d Cir. 2010) 29 (internal quotation marks omitted). "'Because our task is to 30 ascertain Congress's intent, we look first to the text and 31 structure of the statute' as the surest guide to congressional 32 intent." Trustees of Local 138 Pension Trust Fund v. F.W. 3348 Honerkamp Co. , 692 F.3d 127, 134(2d Cir. 2012) (quoting Lindsay 1 v. Ass'n of Prof'l Flight Attendants , 581 F.3d 47, 52 (2d Cir. 2 2009)). We are persuaded primarily by the structure of the ADA, 3 including differences between Title I and Title II, that Congress 4 did not intend to extend Title II to employment discrimination 5 claims, at least not those that are covered by Title I, seeinfra 6 note 12 and accompanying text. SeeAllard K. Lowenstein Intern. 7 Human Rights Project v. Dep't of Homeland Sec. , 626 F.3d 678, 681 8 (2d Cir. 2010) ("Beginning, as we must, with the plain meaning of 9 the statute's text and structure, we see no ambiguity."). 10 The ADA is divided into five separate titles: Title 11 I, "Employment"; Title II, "Public Services"; Title III, "Public 12 Accommodations"; Title IV, "Telecommunications"; and Title V, 13 "Miscellaneous Provisions." Americans with Disabilities Act of 14 1990, Pub. L. No. 101-336, 104 Stat. 327, 327-28 (1990). "'[T]he 15 title of a statute and the heading[s] of [its] section[s]' are 16 'tools available for the resolution of a doubt' about the meaning 17 of a statute." Almendarez-Torres v. United States , 523 U.S. 224, 18 234 (1998) (quoting Trainmen v. Baltimore & Ohio R. Co. , 331 U.S. 19 519, 528-29 (1947)). As the Supreme Court indicated in dictain 20
Garrett , the fact that "Title I of the ADA expressly deals with 21 th[e] subject" of employment discrimination, whereas Title II 22 "deal[s] with the 'services, programs, or activities of a public 23 entity,'" 531 U.S. at 360 n.1 (quoting 42 U.S.C. § 12132), 24 suggests that Congress did not intend Title II to reach 25 employment discrimination, seeid.(citing Russello , 464 U.S. at 2649 23 ("[W]here Congress includes particular language in one section 1 of a statute but omits it in another section of the same Act, it 2 is generally presumed that Congress acts intentionally and 3 purposely in the disparate inclusion or exclusion" (internal 4 quotation marks omitted))). And reflecting Congress's decision 5 to separate the ADA into distinct titles covering different kinds 6 of discrimination, the Supreme Court has described the ADA as 7 "forbid[ding] discrimination against persons with disabilities in 8 three major areas of public life: employment, which is covered by 9 Title I of the statute; public services, programs, and 10 activities, which are the subject of Title II; and public 11 accommodations, which are covered by Title III." Lane , 541 U.S. 12 at 516-17. 13 The division between Titles I and II is further 14 illustrated by their differing definitions of a "qualified 15 individual." Title I's definition speaks in terms of employment: 16 "As used in [Title I,] . . . 'qualified individual' means an 17 individual who, with or without reasonable accommodation, can 18 perform the essential functions of the employment position that 19 such individual holds or desires." 42 U.S.C. § 12111(8). But 20 Title II defines the same term instead as an individual who 21 "meets the essential eligibility requirements for the receipt of 22 services or the participation in programs or activities provided 23 by a public entity." Id.§ 12131(2). 24 Moreover, Title I prohibits discrimination by a 25 "covered entity," which it defines as, inter alia , "an employer," 2650 id.§ 12111(2), whereas Title II prohibits discrimination by a 1 "public entity," which it defines as, inter alia , "any State or 2 local government [or agency thereof]," id. § 12131(1). Thus, 3 "Title II does not include any definition relevant to 4 employ[ment], [by contrast with] Title I[]." Cormier v. City of 5 Meriden , No. 03 Cv. 1819, 2004 WL 2377079, at *4, 2004 U.S. Dist. 6 LEXIS 21104, at *15 (D. Conn. Sept. 30, 2004). 7 Also, Congress delegated the authority to promulgate 8 regulations under the two titles to two different agencies. 9 Title I gives the Equal Employment Opportunity Commission the 10 authority to promulgate regulations interpreting that title. 42 11 U.S.C. § 12116. But Title II entrusts the Attorney General with 12 that responsibility. 42 U.S.C. § 12134(a). See alsoZimmerman , 13 170 F.3d at 1178. And the fact that Congress included no 14 direction that the two agencies work together to avoid imposing 15 inconsistent standards governing employment discrimination suits 16 suggests "that it did not intend for the Attorney General to have 17 any power over employment under Title II; it never envisioned 18 that there could be a conflict." Id. 19 Title I also imposes various limitations on suits 20 against an employer which are absent from Title II. While Title 21 I caps the amount of compensatory damages a plaintiff may recover 22 depending on the number of employees employed by the defendant 23 employer, 42 U.S.C. § 1981a(b)(3), and disallows punitive damages 24 in suits against governmental employers, id. § 1981a(b)(1), 25 "Title II has no such limitations," Cormier , 2004 WL 2377079, at 2610Title 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).

11Title 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 *7, 2004 U.S. Dist. LEXIS 21104, at *26. And although plaintiffs 1 filing suit under Title I must first exhaust administrative 2 remedies, 10it appears that those filing suit under Title II need 3 not do so, although we find a conclusion on the point unnecessary 4 to decide this case. 11It is an "elementary canon of 5exhaustthe 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 alsoCormier , 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 construction that a statute should be interpreted so as not to 1 render one part inoperative." Mountain States Tel. & Tel. Co. v. 2 Pueblo of Santa Ana , 472 U.S. 237, 249 (1985), (quoting Colautti 3 v. Franklin , 439 U.S. 379, 392 (1979)). "[A]pplying Title II to 4 public employees would nullify these statutory limits for a 5 significant category of employment discrimination plaintiffs." 6 Cormier , 2004 WL 2377079, at *7, 2004 U.S. Dist. LEXIS 21104, at 7 *26. As the Seventh Circuit put it in a similar context -- while 8 analyzing the Rehabilitation Act -- "it would make no sense for 9 Congress to provide . . . different sets of remedies, having 10 different exhaustion requirements, for the same wrong committed 11 by the same employer." McGuinness v. U.S. Postal Serv. , 744 F.2d 12 1318, 1321 (7th Cir. 1984). 1353 "[W]e are required to disfavor interpretations of 1 statutes that render language superfluous." Conn. ex rel. 2 Blumenthal v. U.S. Dep't of the Interior , 228 F.3d 82, 88 (2d 3 Cir. 2000) (internal quotation marks omitted); see alsoCorley, 4 556 U.S. at 314 ("[O]ne of the most basic interpretive canons[ 5 is] that a statute should be construed so that effect is given to 6 all its provisions, so that no part will be inoperative or 7 superfluous, void or insignificant." (internal quotation marks 8 and alteration omitted)); Duncan , 533 U.S. at 174 (similar). If 9 a public employee were able to bring a suit against her employer 10 for wrongful discrimination under both Title I and Title II, 11 Title I would apparently become superfluous in the context of a 12 suit against a public employer employing more than fifteen 13

persons –- compare42 U.S.C. § 12111(5)(A) (Title I does not 14 apply to an employer with fewer than 15 employees), with42 15 U.S.C. § 12131(1)(Title II applies to all municipal entities 16 regardless of size) -- which is a construction we find highly 17 doubtful. Even the plaintiff here concedes nearly as much. See 18 Pl.'s Reply Br. 24 ("[T]he proffered interpretation of Title II 19 does not render Title I entirelyredundant.") (emphasis in 20 original). 21 Accordingly, we conclude that the statute unambiguously 22 limits employment discrimination claims to Title I. A public 23 employee may not bring a Title II claim against his or her 2412We 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 employer, at least when the defendant employer employs fifteen or 1 more employees. 12 2 The plaintiff argues that we, like the Bledsoecourt, 3 should consult Title II's legislative history. But, having found 4 the relevant provisions of the statute unambiguous, we do not 5 have warrant to do so. See, e.g. , Dep't of Hous. & Urban Dev. v. 6 Rucker , 535 U.S. 125, 132 (2002) ("[R]eference to legislative 7 history is inappropriate when the text of a statute is 8 unambiguous."); Ratzlaf v. United States , 510 U.S. 135, 147-48 9 (1994) ("[W]e do not resort to legislative history to cloud a 10 statutory text that is clear."). 11 The plaintiff also argues that deference is due to the 12 Attorney General's regulations implementing Title II, which 13 contemplate employment discrimination claims. See28 C.F.R. § 14 35.140(a) ("No qualified individual with a disability shall, on 15 the basis of disability, be subjected to discrimination in 16 employment under any service, program, or activity conducted by a 17 public entity."). But the Supreme Court has directed that before 18 deferring to an agency's regulations, a court must first employ 19 "'traditional tools of statutory construction' to determine 20 whether Congress has expressed its intent unambiguously on the 21 question before the court." Zimmerman , 170 F.3d at 1173 (quoting 22 Chevron , 467 U.S. at 843 n.9). "If the intent of Congress is 2355 clear, that is the end of the matter; for the court, as well as 1 the agency, must give effect to the unambiguously expressed 2 intent of Congress." Chevron , 467 U.S. at 842-43. "The 3 judiciary is the final authority on issues of statutory 4 construction and must reject administrative constructions which 5 are contrary to clear congressional intent." Id. at 843 n.9. 6 Because we conclude that the statute is unambiguous, we do not 7 consider the Attorney General's regulations for this purpose. 8 The plaintiff also argues that our prior statement in 9 Innovative Health Systems, Inc. v. City of White Plains , 117 F.3d 10 37 (2d Cir. 1997), recognized as superseded on other grounds by 11 Zervos v. Verizon New York, Inc. , 252 F.3d 163, 171 n.7 (2d Cir. 12 2001), that the word "discrimination" in Title II is a "catch-all 13 phrase that prohibits all discrimination by a public entity, 14 regardless of the context," id.at 45, establishes that we have 15 already decided that Title II applies to employment. But, in 16 relevant part, Innovativeonly addressed (and rejected) White 17 Plains' argument that Title II did not apply to its zoning 18 decisions because "it contend[ed] that zoning does not constitute 19 a 'service, program, or activity.'" Id. at 44. The question of 20 whether Title II applies to employment discrimination was not 21 before the Court. 22 And this statement must be considered in context. 23 Title II provides that "no qualified individual with a disability 24 shall, by reason of such disability, be excluded from 25 participation in or be denied the benefits of the services, 2613After 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 programs, or activities of a public entity, or be subjected to 1 discrimination by any such entity." 42 U.S.C. § 12132. The 2 Innovativecourt first rejected White Plains' argument on the 3 ground that the word "activity" in the above quoted statutory 4 text was broad enough to encompass municipal zoning decisions. 5 117 F.3d at 44. This reasoning was sufficient to reject 6 completely White Plains' argument, and would have been sufficient 7 to decide the issue before the Court. But the InnovativeCourt 8 then offered an alternative rationale for rejecting White Plains' 9 argument: that the statutory language "or be subjected to 10 discrimination by any such entity," 42 U.S.C. § 12132, was a 11 "catch-all phrase that prohibits all discrimination by a public 12 entity, regardless of the context," 117 F.3d at 45. In any 13 event, then, the statement in Innovative"was not essential to 14 the Court's holding because it was offered in the alternative[,] 15 and therefore it is [a] dictum that is not binding on us." 16 Willis Mgmt. (VT.), Ltd. v. United States , 652 F.3d 236, 243 (2d 17 Cir. 2011). 18 For the foregoing reasons, we affirm the district 19 court's dismissal of the plaintiff's Title II claims against the 20 Library. 13 21express 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 **CONCLUSION** 1 For the foregoing reasons, 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 for further 8 proceedings consistent with this opinion. The district court's 9 judgment of dismissal is affirmed as to the plaintiff's Title II 10 claim against the Library. The district court's decision to 11 decline to exercise supplemental jurisdiction over the 12 plaintiff's state law claims is vacated for reconsideration 13 depending on the course of the further proceedings contemplated 14 by this opinion. 15 Costs of the plaintiff on appeal to be paid by NYSLRS 16 to the plaintiff; the Library shall bear its own costs. 17