     06-1746-cv
     McInerney v. Rensselaer Polytechnic Inst.


 1                                UNITED STATES COURT OF APPEALS

 2                                        FOR THE SECOND CIRCUIT

 3                                                   --------

 4                                               August Term, 2007

 5

 6   (Argued: September 27, 2007                                Decided: October 15, 2007)

 7

 8                                         Docket No. 06-1746-cv

 9   -----------------------------------------------------------X
10   JOSEPH P. McINERNEY,
11
12                  Plaintiff-Appellant,
13             - v. -
14   RENSSELAER POLYTECHNIC INSTITUTE;
15   THE MECHANICAL AERONAUTICAL NUCLEAR
16   ENGINEERING DEPARTMENT OF RENSSELAER
17   POLYTECHNIC INSTITUTE (MANE);
18   MANE DEPARTMENT CHAIRMAN JOHN TICHY;
19   MANE GRADUATE COORDINATOR ANTOINETTE
20   MANIATTY; MANE PROFESSOR LEIK MYRABO;
21   MANE PROFESSOR KENNETH JANSEN,
22
23                  Defendants-Appellees,*
24   -----------------------------------------------------------X
25   Before:   McLAUGHLIN, RAGGI, Circuit Judges, and RAKOFF, DISTRICT
26             JUDGE.**
27




             *
               The Clerk of the Court is directed to amend the official
             caption as set forth above.
             **
               The Honorable Jed S. Rakoff of the United States District
             Court for the Southern District of New York, sitting by
             designation.
 1        Plaintiff appeals from the dismissal of his complaint by the

 2   United States District Court for the Northern District of New

 3   York (Hurd, J.) for failure to exhaust administrative remedies.

 4        VACATED AND REMANDED.

 5                                  JOSEPH P. McINERNEY, Lowell,
 6                                  Massachusetts, pro se, Plaintiff-
 7                                  Appellant.
 8
 9                                  MICHAEL E. GINSBERG, Pattison,
10                                  Sampson, Ginsberg & Griffin, P.C.,
11                                  Troy, New York, for Defendants-
12                                  Appellees.
13

14   PER CURIAM:

15        Joseph P. McInerney appeals from the dismissal of his

16   complaint by the United States District Court for the Northern

17   District of New York (Hurd, J.) for failure to exhaust

18   administrative remedies.   Because the district court erred in

19   concluding that McInerney had an obligation to present his claims

20   under Titles III and V of the Americans with Disabilities Act of

21   1990 (“ADA”), 42 U.S.C. § 12101 et seq., to the Equal Employment

22   Opportunity Commission (“EEOC”) prior to suit, we VACATE the

23   district court’s judgment of dismissal and REMAND.

24                                BACKGROUND

25         Joseph P. McInerney, pro se, who suffers from brain damage

26   and related symptoms as a result of a bacterial brain abscess, is

27   a Ph.D. candidate in the Mechanical Aeronautical Nuclear

28   Engineering (“MANE”) program at Rensselaer Polytechnic Institute


                                      2
 1   (“RPI”).   He alleges that RPI and various professors and

 2   administrators in the MANE program (collectively, “Defendants”)

 3   failed to accommodate his disability and unlawfully retaliated

 4   against him.

 5        McInerney alleges that Professor Leik Myrabo, who was

 6   McInerney’s thesis advisor, hired him as a research assistant in

 7   August 2001.   Although McInerney says that Myrabo promised

 8   several times to pay McInerney for his research assistance,

 9   Myrabo revealed in April 2002 that he was unable to compensate

10   McInerney even though he paid other graduate students who

11   performed research for him.   Myrabo proposed an alternative job

12   for McInerney in California with one of his former students.

13   McInerney turned it down, however, because his poor health would

14   not allow him to travel so far.       He alleges that Myrabo

15   retaliated by, among other things, delaying a letter of

16   recommendation and approval of a scholarship application.

17        Because of his difficulties with Professor Myrabo, McInerney

18   asked the MANE department to assign him a different thesis

19   advisor.   The MANE department assigned Professor Kenneth Jansen,

20   but told McInerney that Jansen would not be responsible for

21   funding McInerney’s research.   According to McInerney, Jansen

22   financially assisted other graduate students whom he advised.

23        In April 2003, McInerney failed his doctoral candidacy exam

24   because, he alleges, he was fatigued from his illness and was


                                       3
 1   asked “ill posed and unreasonable questions.”    When McInerney

 2   explained this to John Tichy, chairman of the MANE department,

 3   and asked him to speak with the professors who administered the

 4   exam, Tichy allegedly told McInerney to stop using his disability

 5   as an excuse.

 6        McInerney claims that he was denied further accommodations

 7   between September 2003 and June 2004 when Professor Jansen

 8   refused to provide McInerney with extra research assistance or

 9   help McInerney find a tutor.    In August 2004, the MANE department

10   also rejected McInerney’s request to be assigned another thesis

11   advisor.

12        In October 2005, McInerney brought this action, alleging

13   violations of Titles III and V of the ADA and Section 504 of the

14   Rehabilitation Act of 1973, 29 U.S.C. § 794.    On March 24, 2006,

15   the district court dismissed the complaint in its entirety for

16   lack of jurisdiction because McInerney failed to exhaust his

17   claims with the EEOC or an appropriate state or local agency

18   prior to suit.

19        McInerney now appeals.

20                                 DISCUSSION

21        Although the district court suggested it lacked jurisdiction

22   over the case, its dismissal for failure to exhaust

23   administrative remedies is more properly characterized as a

24   dismissal for failure to state a claim pursuant to Federal Rule


                                       4
 1   of Civil Procedure 12(b)(6).   See Fernandez v. Chertoff, 471 F.3d

 2   45, 58 (2d Cir. 2006).   “We review a district court’s dismissal

 3   of a complaint pursuant to [Rule 12(b)(6)] de novo, accepting all

 4   factual allegations in the complaint and drawing all reasonable

 5   inferences in the plaintiff’s favor.”       ATSI Commc’ns, Inc. v.

 6   Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007).      The need to

 7   draw all inferences in the plaintiff’s favor has heightened

 8   application when the plaintiff is proceeding pro se.         See Bertin

 9   v. United States, 478 F.3d 489, 491 (2d Cir. 2007).

10        Applying these standards, we agree with McInerney that the

11   district court erred in dismissing his complaint.      His ADA claims

12   did not require administrative exhaustion.

13        Whether an ADA claim must first be presented to an

14   administrative agency depends on which precise title of the ADA

15   the claim invokes.   Title I prohibits employers from

16   discriminating against disabled employees, see 42 U.S.C. §

17   12112(a), while Title III forbids discrimination “on the basis of

18   disability in the full and equal enjoyment of the goods,

19   services, facilities, privileges, advantages, or accommodations

20   of any place of public accommodation,” id. § 12182(a).        RPI, as a

21   “postgraduate private school,” is doubtless a place of public

22   accommodation.   See id. § 12181(7)(J).     Title V proscribes

23   retaliation because of a person’s opposition to any act or

24   practice that the ADA prohibits.       See id. § 12203(a).


                                        5
 1        ADA Title I incorporates various provisions from Title VII

 2   of the landmark Civil Rights Act of 1964.      See id. § 12117(a)

 3   (incorporating “[t]he powers, remedies, and procedures set forth

 4   in [42 U.S.C.] sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and

 5   2000e-9").   One of these provisions, section 2000e-5, requires a

 6   claimant to file a charge of employment discrimination with the

 7   EEOC within 180 days after the discriminatory act.      See id. §

 8   2000e-5(e)(1).    This administrative-exhaustion provision,

 9   however, is not found in ADA Title III.     Instead, ADA Title III

10   incorporates only § 2000a-3(a), see id. § 12188(a)(1), providing

11   for injunctive relief against certain discriminatory acts, see

12   id. § 2000a-3(a).    Title V retaliation claims in the employment

13   context require the same procedures as those under Title I, while

14   retaliation claims relating to public accommodations follow Title

15   III procedures.     See id. § 12203(c).   Thus, if Title III does not

16   require administrative exhaustion, Title V claims predicated on

17   asserting one’s rights under Title III require no exhaustion

18   either.

19        The language and structure of the ADA demonstrate that Title

20   III, unlike Title I, does not require administrative exhaustion.

21   “[I]t is a general principle of statutory construction that when

22   Congress includes particular language in one section of a statute

23   but omits it in another section of the same Act, it is . . .

24   presumed that Congress acts intentionally and purposefuly . . .


                                        6
 1   .”   Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452 (2002)

 2   (internal quotation marks omitted).   There is good reason to

 3   conclude that Congress intentionally omitted the exhaustion

 4   requirement for public-accommodations claims, as it would make

 5   little sense to require a plaintiff challenging discrimination in

 6   public accommodations to file a charge with the EEOC, an agency

 7   with responsibility for and expertise in matters of employment

 8   discrimination.   See 42 U.S.C. §§ 2000e-5(a)-(b).    Accordingly,

 9   we hold that there is no administrative-exhaustion requirement

10   for ADA Title III claims or Title V claims predicated on

11   asserting one’s rights under Title III.

12         In defending the judgment of dismissal, Defendants argue

13   that McInerney’s allegations concerning his work as a research

14   assistant arise under Title I.   However, we need not resolve

15   whether such work qualifies as “employment” for purposes of the

16   ADA—a question not addressed by the district court—because the

17   complaint contains ample Title III-based allegations.    For

18   example, McInerney alleges that Defendants failed: (1) to appoint

19   him an adequate thesis advisor, (2) to assist him with funding

20   for his research as they did for other students, (3) to provide

21   extra instruction or a tutor, and (4) to accommodate his

22   disability at or after his doctoral candidacy exam.    The district

23   court therefore erred by dismissing McInerney’s ADA claims for

24   failure to exhaust administrative remedies.


                                      7
 1         Finally, McInerney’s brief on appeal challenges only the

 2   dismissal of his ADA claims, making no mention of his claims

 3   under Section 504 of the Rehabilitation Act of 1973.

 4   Accordingly, we treat any possible challenge to the dismissal of

 5   the latter claims as waived.   See Norton v. Sam’s Club, 145 F.3d

 6   114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the

 7   briefs are considered waived and normally will not be addressed

 8   on appeal.”).

 9                               CONCLUSION

10        For the foregoing reasons, we VACATE the judgment of

11   dismissal and REMAND the case to the district court with

12   instructions to reinstate the complaint, limited to McInerney’s

13   ADA claims.   The parties’ motions to accept and to strike

14   McInerney’s supplemental exhibits are DENIED as moot.




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