                                In the

    United States Court of Appeals
                 For the Seventh Circuit

No. 11-2265

LINDA BRUMFIELD ,
                                                    Plaintiff-Appellant,

                                   v.

CITY OF CHICAGO ,
                                                   Defendant-Appellee.


            Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
           No. 10 C 4960 — Harry D. Leinenweber, Judge.



No. 11-3836
LINDA BRUMFIELD ,
                                                    Plaintiff-Appellant,

                                   v.

CITY OF CHICAGO ,
                                                   Defendant-Appellee.
2                                              Nos. 11-2265 & 11-3836



              Appeal from the United States District Court
          for the Northern District of Illinois, Eastern Division.
              No. 11 C 5371 — M atthew F. Kennelly, Judge.



    ARGUED SEPTEMBER 18, 2012 — DECIDED NOVEMBER 6, 2013



     Before FLAUM , SYKES, and TINDER, Circuit Judges.
    SYKES, Circuit Judge. These consolidated appeals raise a
question of first impression in this circuit: Does Title II of the
Americans with Disabilities Act (“ADA”) cover employment-
related disability discrimination? Title II provides that state
and local governments may not exclude eligible disabled
persons from “participation in” or “the benefits of” govern-
mental “services, programs, or activities” or otherwise
“subject[]” an eligible disabled person “to discrimination.” See
42 U.S.C. § 12132. Title I, in contrast, specifically prohibits
employment discrimination on the basis of disability. See id.
§ 12112(a).
   The circuits are split on whether Title II applies to disability
discrimination in public employment, supplementing the
remedy in Title I. Two circuits have squarely held that it does
not apply in this context, leaving Title I as the exclusive ADA
remedy for claims of disability discrimination in both public
and private employment. See Elwell v. Okla. ex rel. Bd. of Regents
of the Univ. of Okla., 693 F.3d 1303 (10th Cir. 2012);
Zimmerman v. Or. Dep’t. of Justice, 170 F.3d 1169 (9th Cir. 1999).
Nos. 11-2265 & 11-3836                                            3

One circuit has reached the opposite conclusion. See Bledsoe v.
Palm Beach Cnty. Soil & Water Conservation Dist., 133 F.3d 816
(11th Cir. 1998).
    The issue arises here in a flurry of lawsuits brought by
Linda Brumfield, who was a Chicago police officer from 1999
until she was fired in 2010. She alleges that in 2006 she began
to experience unspecified “psychological problems” and the
City required her to submit to periodic psychological evalua-
tions to determine whether she was capable of performing her
job. Each time she was found fit for duty. In the meantime,
however, the Chicago Police Board suspended her three times
and fired her in 2010.
    Brumfield sued the City of Chicago for employment
discrimination, splitting her claims across three lawsuits; only
the second and third are relevant here. The second suit alleged
claims under Title II of the ADA and Section 504 of the
Rehabilitation Act, 29 U.S.C. § 794(a), and the third suit alleged
a claim under Title I of the ADA. The district court held that
Title II applied in this context but dismissed the second suit for
failure to state a claim under either Title II or the Rehabilitation
Act. A different district judge dismissed the Title I claim in the
third suit as barred by res judicata.
    We affirm, though on somewhat different reasoning. We
join the Ninth and Tenth Circuits and hold that Title II of the
ADA does not cover disability discrimination in public
employment; this kind of claim must be brought under Title I.
The Rehabilitation Act claim fails because Brumfield has not
alleged that she was suspended or fired by reason of disability.
Finally, Brumfield does not argue that the district court’s res
4                                       Nos. 11-2265 & 11-3836

judicata ruling was mistaken but, rather, skips right to the
merits of her Title I claim. She has thus waived any challenge
to the dismissal of the Title I claim on preclusion grounds.


                        I. Background
    We take the following facts from Brumfield’s complaints,
accept them as true, and draw reasonable inferences in her
favor. See McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 885
(7th Cir. 2012). In 1999 the City of Chicago hired Brumfield as
a full-time, nonprobationary police officer. In 2006 she began
to experience unspecified “psychological problems” that
interfered with her ability to sleep, eat, and concentrate. The
City became aware of these difficulties and required her to
submit to psychological examinations on four separate
occasions between June 2006 and August 2007. Each time
Brumfield was found capable of continuing her work as a
police officer, though the examiners informed the City that she
was vulnerable to workplace stress.
    In April 2008 Brumfield filed a complaint in federal district
court in Northern Illinois alleging that subjecting her to
psychological examinations amounted to discrimination on
account of race, sex, and sexual orientation in violation of
federal and state antidiscrimination laws. The case was
assigned to Judge Harry Leinenweber. In August 2008 while
the case was still pending, the City suspended Brumfield
without pay pending discharge proceedings before the
Chicago Police Board. Brumfield alleges that this disciplinary
measure arose out of an “incident” in June 2006; the complaint
provides no factual detail. The Police Board rejected the City’s
Nos. 11-2265 & 11-3836                                         5

discharge recommendation but suspended Brumfield without
pay for 180 days.
   In March 2009—before the suspension expired—the City
again suspended Brumfield without pay pending discharge
proceedings. Brumfield informs us in her brief that this
suspension also related to an “incident” in June 2006, but again
her complaint contains no factual detail. The Police Board did
not discharge her but suspended her without pay for another
180 days.
    In September 2009—before the Police Board had issued its
second suspension order and before Brumfield returned to
work—the City again suspended her without pay pending a
third discharge proceeding. Brumfield’s complaint does not
specify the basis for this disciplinary measure, but in her brief
she states that it arose from an April 2007 incident in which she
told her captain that she was going to be injured on duty and
then fell to the ground, feigning injury. This time the Police
Board sustained the City’s disciplinary charge and terminated
Brumfield’s employment.
    In August 2010—with her earlier employment-
discrimination case still pending—Brumfield filed a second
lawsuit in the Northern District of Illinois focusing on her
suspensions and discharge, which she alleged violated Title II
of the ADA, 42 U.S.C. § 12132, and Section 504 of the Rehabili-
tation Act, 29 U.S.C. § 794(a). This second suit also included a
state-law claim for judicial review of the Police Board’s latest
suspension order and its decision to terminate her employ-
ment. The new case was also assigned to Judge Leinenweber.
Brumfield eventually voluntarily dismissed the first case; it has
6                                       Nos. 11-2265 & 11-3836

no further bearing on these appeals. The City then moved to
dismiss the second case pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, advancing three arguments:
(1) Title II of the ADA does not cover employment discrimina-
tion; (2) Title I, which does cover employment discrimination,
was not available because Brumfield failed to exhaust adminis-
trative preconditions to filing suit; and (3) Brumfield failed to
state a claim under either the ADA or the Rehabilitation Act. In
an oral ruling, the district court dismissed the federal claims
and relinquished supplemental jurisdiction over the state-law
claim. The judge held that Title II of the ADA applies to the
employment decisions of public entities like the City but that
Brumfield’s complaint failed to state a claim under either the
ADA or the Rehabilitation Act. Brumfield appealed; this is
Appeal No. 11-2265.
    In August 2011 while her appeal was pending, Brumfield
filed a third lawsuit against the City, this time alleging a
violation of Title I of the ADA. The complaint contained no
new factual allegations; the only difference was that Brumfield
now alleged a claim under Title I of the ADA and complied
with the administrative preconditions to suit. The new case
was assigned to Judge Matthew Kennelly, who dismissed it as
barred by res judicata. Brumfield appealed that judgment as
well; this is Appeal No. 11-3836. We ordered the appeals
consolidated.
Nos. 11-2265 & 11-3836                                                       7

                              II. Discussion
A. ADA Title II Claim
    The district court dismissed Brumfield’s Title II claim for
failure to state a plausible claim for relief. In the process,
however, the court held that Title II of the ADA prohibits
disability discrimination in state and local public employment,
supplementing the remedy provided in Title I. The City
disagrees and argues that Title II does not apply.
    Whether Title II applies to employment discrimination is an
open question in this circuit. Staats v. County of Sawyer, 220 F.3d
511, 518 (7th Cir. 2000). The Supreme Court has noted the
question but never directly addressed it. Bd. of Trs. of the Univ.
of Ala. v. Garrett, 531 U.S. 356, 360 n.1 (2001). Three of our sister
circuits, however, have directly decided the issue. The Ninth
and Tenth Circuits have held that Title II unambiguously does
not apply to employment-related disability discrimination. See
Elwell, 693 F.3d at 1313–14; Zimmerman, 170 F.3d at 1178.1 The

1
 The Second Circuit has held that Title II unambiguously does not apply to
the employment decisions of public entities large enough to be covered by
Title I but reserved the issue of whether Title II regulates the employment
decisions of smaller public entities. See Mary Jo C. v. N.Y. State & Local Ret.
Sys., 707 F.3d 144 (2d Cir. 2013). With a few inapplicable exceptions, Title I
defines “employer” to mean “a person engaged in an industry affecting
commerce who has 15 or more employees for each working day in each of
20 or more calendar weeks in the current or preceding calendar year, and
any agent of such person.” 42 U.S.C. § 12111(5). So long as a public entity
meets Title I’s definition of “em ployer,” its employment practices would
fall within the scope of the ADA’s employment-specific provisions. The
Second Circuit decided the question whether Title II addresses the
                                                               (continued...)
8                                              Nos. 11-2265 & 11-3836

Eleventh Circuit has reached the opposite conclusion. See
Bledsoe, 133 F.3d at 825.2


(...continued)
employment practices of public entities primarily by comparing Title II of
the ADA with Title I’s more specific provisions rather than by grappling
with the meaning of Title II itself. See Mary Jo C., 707 F.3d at 168–69 (“We
are persuaded primarily by the structure of the ADA, including differences
between Title I and Title II, that Congress did not intend to extend Title II
to employment discrimination claims, at least not those that are covered by
Title I … .”). The court therefore reserved the question whether Title II
addresses the employment practices of public entities not covered by Title I.
See id. at 171 n.12 (“We need not, and do not, decide here whether a Title II
claim may be brought against a public employer employing fewer than
fifteen employees … .”).

2
 Other circuits have addressed closely related issues. The Third Circuit, in
a case determining whether Title III of the ADA prohibits disability
discrimination in the employment context, has stated that “it is evident that
Congress sought to regulate disability discrimination in the area of
employment exclusively through Title I, notwithstanding the broad
language of Title III.” Menkowitz v. Pottstown Mem’l Med. Ctr., 154 F.3d 113,
118–19 (3d Cir. 1998). The Sixth Circuit faced the same issue and agreed that
Title I is the only part of the ADA governing employment practices. See
Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1014 (6th Cir. 1997) (“[T]he
statutory framework of the ADA expressly limits discrimination in
employm ent practices to Title I of the ADA … .”). The Fourth and Fifth
Circuits have implicitly assumed that employment-discrimination claims
are cognizable under Title II of the ADA, though neither court has directly
confronted the issue. See Holmes v. Tex. A&M Univ., 145 F.3d 681 (5th Cir.
1998) (engineering professor dismissed from university); Doe v. Univ. of Md.
Med. Sys. Corp., 50 F.3d 1261 (4th Cir. 1995) (doctor dismissed from
residency). Finally, the First Circuit has flagged the Title II issue as a
difficult one and noted that “[t]he words ‘public services, programs, or
                                                             (continued...)
Nos. 11-2265 & 11-3836                                               9

    We have considered whether it makes sense to leave the
question undecided here. After all, Brumfield brought a Title I
claim in her third suit, and there is no doubt that Title I
prohibits employment discrimination on the basis of disability.
See, e.g., Tennessee v. Lane, 541 U.S. 509, 516–17 (2004) (The ADA
“forbids discrimination against persons with disabilities in
three major areas of public life: employment, which is covered
by Title I of the statute; public services, programs, and activi-
ties, which are the subject of Title II; and public accommoda-
tions, which are covered by Title III.”). But we cannot sidestep
the issue of Title II’s scope by focusing on the Title I claim in
Brumfield’s third suit. Judge Kennelly dismissed that com-
plaint and entered judgment on res judicata grounds. Al-
though Brumfield argued against preclusion in the district
court, her appellate briefing is silent on res judicata so she has
waived the issue. See Local 15, Int’l Bhd. of Elec. Workers v. Exelon
Corp., 495 F.3d 779, 783 (7th Cir. 2007) (arguments raised in the
district court but not developed on appeal are waived).
Brumfield’s waiver is dispositive in Appeal No. 11-3836; with
the res judicata bar in place and unchallenged, the Title I claim
is precluded and the judgment is summarily affirmed. That
leaves only Appeal No. 11-2265 and Brumfield’s claims under
Title II and the Rehabilitation Act. So we cannot avoid the
Title II question and turn to it now.
   Title II of the ADA provides: “[N]o qualified person with a
disability shall, by reason of such disability, be excluded from


(...continued)
activities’ do not necessarily exclude employment.” Currie v. Grp. Ins.
Comm’n, 290 F.3d 1, 6–7 (1st Cir. 2002).
10                                           Nos. 11-2265 & 11-3836

participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to
discrimination by any such entity.” 42 U.S.C. § 12132. As used
in Title II, the term “qualified individual with a disability” has
its own special definition. It means:
        [A]n individual with a disability who, with or
        without reasonable modifications to rules, poli-
        cies, or practices, the removal of architectural,
        communication, or transportation barriers, or the
        provision of auxiliary aids and services, meets
        the essential eligibility requirements for the
        receipt of services or the participation in pro-
        grams or activities provided by a public entity.
Id. § 12131(2). A “public entity” includes “any State or local
government,” and “any department, agency, special purpose
district, or other instrumentality of a State or States or local
government.” Id. § 12131(1)(A)–(B).3
   The Attorney General has promulgated a regulation stating
that Title II applies to disability discrimination in public
employment: “No qualified individual with a disability shall,
on the basis of disability, be subjected to discrimination in
employment under any service, program, or activity conducted
by a public entity.” 28 C.F.R. § 35.140(a) (2012). Brumfield
argues that we should defer to the Attorney General’s interpre-


3
  Though not relevant here, Title II’s definition of “public entity” also
includes “the National Railroad Passenger Corporation, and any commuter
authority (as defined in section 24102(4) of Title 49).” 42 U .S.C.
§ 12131(1)(C).
Nos. 11-2265 & 11-3836                                             11

tation under Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984).
    Not so fast. An agency’s interpretation is entitled to Chevron
deference if Congress has authorized the agency to interpret
the statute through rules carrying the force of law and the
agency’s interpretation is both reasonable and promulgated
through the exercise of the authority given by Congress. See
United States v. Mead Corp., 533 U.S. 218, 227–29 (2001); see also
White v. Scibana, 390 F.3d 997, 1000 (7th Cir. 2004). But we do
not address the deference question unless the statute is silent
or ambiguous regarding the matter at hand. In other words,
Chevron analysis proceeds in two steps. See Emergency Servs.
Billing Corp. v. Allstate Ins. Co., 668 F.3d 459, 465 (7th Cir. 2012).
First, we determine whether the statute is silent or ambiguous
on the question at issue—here, whether Title II of the ADA
covers discrimination in public employment. If the statute is
unambiguous on the question, we give effect to the unambigu-
ous statutory language and the inquiry goes no further. Id. at
465–66. If the statute is silent or ambiguous, the second step is
to determine whether the agency has promulgated a reason-
able interpretation of the statute; if so, we defer to that inter-
pretation. Id.
    We conclude that Title II unambiguously does not apply to
the employment decisions of state and local governments. To
repeat: Title II provides that no eligible disabled person “shall,
by reason of such disability, be excluded from participation in
or be denied the benefits of the services, programs, or activities
of a public entity, or be subjected to discrimination” by a state
or local unit of government. 42 U.S.C. § 12132. Our sister
12                                              Nos. 11-2265 & 11-3836

circuits have helpfully divided § 12132 into two clauses for
purposes of analysis: no otherwise eligible individual with a
disability may be (1) “excluded from participation in or be
denied the benefits of the services, programs, or activities of a
public entity” by reason of such disability; or (2) “subjected to
discrimination by” a public entity by reason of disability. Id.;
accord Elwell, 693 F.3d at 1306; Zimmerman, 170 F.3d at 1174;
Bledsoe, 133 F.3d at 821. No circuit has held that the first clause
of § 12132 applies to public employment. See Elwell, 693 F.3d at
1306; Zimmerman, 170 F.3d at 1174; Bledsoe, 133 F.3d at 821–22.
This is for good reason: Under the first clause of the statute,
eligible disabled persons may not be excluded from “participa-
tion in” or denied “the benefits of” the “services, programs, or
activities” of state and local government; employment is not
ordinarily conceptualized as a “service, program, or activity”
of a public entity.4 See Elwell, 693 F.3d at 1306 (“[C]an


4
 It is true that “[t]here are two long-standing civil rights laws, Section 504
of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) (1994 & Supp. IV 1998)
and Title IX of the Education Amendments of 1972, 20 U.S.C. [§] 1681(a)
(1994), under which the phrase ‘program or activity’ has been held to cover
employment practices.” Currie, 290 F.3d at 7 n.4 (citing Consol. Rail Corp. v.
Darrone, 465 U .S. 624, 632–34 (1984); N. Haven Bd. of Educ. v. Bell, 456 U.S.
512, 520–35 (1982)). Even assuming that we could consider these uses of the
phrase “program or activity” at this step in the Chevron analysis, see
Emergency Servs. Billing Corp. v. Allstate Ins. Co., 668 F.3d 459, 465–66 (7th
Cir. 2012) (reserving the use of “comparative statutes” for the second step
of the Chevron analysis), this would not change our view that the phrase
“services, programs, and activities” in § 12132’s first clause unambiguously
does not refer to em ployment. Congress amended both Title IX and the
Rehabilitation Act to confirm the Supreme Court’s broad, early reading of
                                                              (continued...)
Nos. 11-2265 & 11-3836                                                         13

‘employment’ be described fairly as a service, program, or
activity of a public entity … ? We think not.”); Zimmerman,
170 F.3d at 1174 (“A common understanding of the first clause
shows that it applies only to the ‘outputs’ of a public agency,
not to ‘inputs’ such as employment.”). We join the emerging
consensus and hold that § 12132’s first clause unambiguously
does not address itself to disability discrimination in the
employment context.
     Unlike the first clause of § 12132, the second clause more
broadly prohibits disability-based “discrimination,” covering
all forms of discrimination by state and local governments in



(...continued)
those statutes. See Civil Rights Restoration Act of 1987, Pub. L. No. 100-259,
secs. 3(a), 4, 102 Stat. 28, 28–29 (1988) (codified at 20 U.S.C. § 1687, 29 U.S.C.
§ 794(b)) (providing that the phrase “program or activity” refers to “all of
the operations of” covered entities in both Title IX and the Rehabilitation
Act). Title II of the ADA— which was enacted after those amendments, see
ADA, Pub. L. No. 101-336, tit. II, 104 Stat. 327, 337 (1990)— contains no
similar broad definition for “services, programs, or activities” and thus no
basis for reading that phrase in a counterintuitive way.

   Perhaps our view would be different if the ADA didn’t already prohibit
disability discrimination in employment. But as we have noted and will
explain more fully later in this opinion, Title I of the ADA covers employ-
m ent comprehensively. W hile the Supreme Court may have found it
necessary to read Title IX and the Rehabilitation Act broadly in the 1980s in
order to effectuate their apparent purposes despite the absence of an
explicit reference to employment, there is no similar need to read Title II of
the ADA expansively because Title I already covers employment. Cf.
Darrone, 465 U.S. at 632 n.13 (“[I]t was unnecessary to extend Title VI [of the
Civil Rights Act of 1964] more generally to ban employment discrimination,
as Title VII [of that act] comprehensively regulates such discrimination.”).
14                                       Nos. 11-2265 & 11-3836

the provision of public services, programs, or activities, not just
the exclusion of disabled persons or the denial of benefits to
them. But does this admittedly broader language extend to
employment practices?
    In isolation the second clause of § 12132 might seem
ambiguous. But § 12132 does not exist in isolation and cannot
be read as if it did. Section 12132 protects only “qualified
individual[s] with a disability.” Recall that the phrase “quali-
fied individual with a disability” in Title II refers only to “an
individual with a disability who … meets the essential eligibility
requirements for the receipt of services or the participation in
programs or activities provided by a public entity.” 42 U.S.C.
§ 12131(2) (emphasis added). As the Ninth Circuit has noted,
“[o]btaining or retaining a job is not ‘the receipt of services,’
nor is employment a ‘program or activity provided by a public
entity.’ ” Zimmerman, 170 F.3d at 1176 (brackets omitted); see
also Elwell, 693 F.3d at 1306. Thus, the class of people who may
invoke § 12132’s protection is limited to those eligible to
receive or participate in the public entity’s outputs. This leaves
two interpretive options.
    One is to interpret § 12132’s second clause without regard
to this context and hold that § 12132 covers all forms of
discrimination in state and local governmental operations.
Under this approach Title II’s definition of “qualified individ-
ual with a disability” would have no bearing on the meaning
of “discrimination” in § 12132. Of course, the definition of
“qualified individual with a disability” would continue to limit
the class of disabled persons eligible to proceed under § 12132.
This would mean that the statute covers disabled employees
Nos. 11-2265 & 11-3836                                          15

who also happen to be eligible to receive or participate in their
respective employers’ services, programs, or activities. See
Elwell, 693 F.3d at 1308 (“[I]f the second clause of § 12132
expanded liability to all of a public entity’s operations, … it
would do so only for a limited class of disabled employees—for
those who happen to be eligible to participate in an agency’s
outputs.”); Zimmerman, 170 F.3d at 1175. That is a highly
unlikely interpretation even when Title II is viewed in isola-
tion, Elwell, 693 F.3d at 1308, and we reject it as unambiguously
incorrect.
    The second, and sensible, way to read Title II’s prohibition
against disability-based discrimination is to read it in context
and in conjunction with the applicable definition of “qualified
individual with a disability.” Since the only people who can
invoke the protection of Title II are those who are eligible to
receive or participate in the services, programs, or activities
offered by state and local governments, the statute’s prohibi-
tion against discrimination is properly read to cover all types
of disability discrimination in the “outputs” of state and local
government—their delivery of public services, programs, and
activities to eligible recipients. It does not also cover discrimi-
nation in employment relations, which are part of the internal
operations of state and local government.
    This reading is confirmed if we expand our focus and
consider Title II in light of the ADA as a whole. See Nat’l Ass’n
of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 666 (2007)
(“In making the threshold determination under Chevron, a
reviewing court should not confine itself to examining a
particular statutory provision in isolation. Rather, the
16                                           Nos. 11-2265 & 11-3836

meaning—or ambiguity—of certain words or phrases may
only become evident when placed in context. It is a fundamen-
tal canon of statutory construction that the words of a statute
must be read in their context and with a view to their place in
the overall statutory scheme.” (alteration marks, citations, and
internal quotation marks omitted)). The statute should be read
to perform a nonredundant role in the broader statutory
scheme. TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“It is a
cardinal principle of statutory construction that a statute ought,
upon the whole, to be so construed that, if it can be prevented,
no clause, sentence, or word shall be superfluous, void, or
insignificant.” (internal quotation marks omitted)). So read,
Title II is clearly inapplicable to employment discrimination
because Title I specifically, comprehensively, and exclusively
addresses disability discrimination in employment.
    Unlike Title II, Title I defines “qualified individual” as “an
individual who, with or without reasonable accommodation,
can perform the essential functions of the employment position that
such individual holds or desires.” 42 U.S.C. § 12111(8) (emphasis
added).5 And it protects these individuals against disability-
based discrimination “in regard to job application procedures,
the hiring, advancement or discharge of employees, employee
compensation, job training, and other terms, conditions, and
privileges of employment.” Id. § 12112(a). This provision in
Title I—and particularly the final catch-all phrase—covers the
waterfront of employment-related claims.


5
  Title I of the ADA was amended effective January 1, 2009. Because the
amendments do not affect our analysis of the case, we refer throughout to
the amended ADA.
Nos. 11-2265 & 11-3836                                                          17

    Furthermore, Title I provides employment-specific defini-
tions of terms such as “reasonable accommodation” and
“undue hardship,” id. § 12111(9)–(10), lists defenses specific to
employers, see id. § 12113, and requires the Equal Employment
Opportunity Commission—an agency that administers other
statutes relating specifically to employment discrimination—to
issue regulations carrying out Title I, see id. § 12116.6 The
presence of a comprehensive employment-specific regulatory
scheme sitting right next door in Title I confirms our reading




6
  The Ninth and Tenth Circuits have noted that Title I imposes administra-
tive preconditions to filing suit whereas Title II does not. See Elwell v. Okla.
ex rel. Bd. of Regents of the Univ. of Okla., 693 F.3d 1303, 1309 (10th Cir. 2012);
Zimmerman v. Or. Dep’t of Justice, 170 F.3d 1169, 1178 (9th Cir. 1999) (citing
Smith v. Barton, 914 F.2d 1330, 1338 (9th Cir. 1990)). This is another textual
indicator that Title II does not apply to employment because any other
reading would render Title I’s requirements a nullity for employees of
public entities that fall within its scope. See TRW Inc. v. Andrews, 534 U.S.
19, 31 (2001) (“It is a cardinal principle of statutory construction that a
statute ought, upon the whole, to be so construed that, if it can be pre-
vented, no clause, sentence, or word shall be superfluous, void, or
insignificant.” (internal quotation marks omitted)). We have not previously
addressed the question whether Title II imposes similar requirements, and
because the parties in this case seem to agree that it doesn’t, we do not
address the issue here. Cf. Mary Jo C., 707 F.3d at 170 n.11 (declining to
address the issue); Gibson v. West, 201 F.3d 990, 994 (7th Cir. 2000) (citing
with approval the “general pronouncement” in Charlie F. v. Board of
Education of Skokie School District 68, 98 F.3d 989, 991 (7th Cir. 1996), that
satisfying administrative preconditions in civil-rights cases is not a
jurisdictional requirement that we would have a duty to address sua
sponte).
18                                             Nos. 11-2265 & 11-3836

of Title II.7 See RadLAX Gateway Hotel, LLC v. Amalgamated Bank,
132 S. Ct. 2065, 2070–71 (2012) (noting that when Congress has
enacted a “comprehensive scheme and has deliberately
targeted specific problems with specific solutions,” that scheme
will govern over more general statutory language that could be
read to cover the same problems (internal quotation marks
omitted)); Russello v. United States, 464 U.S. 16, 23 (1983)
(“[W]here Congress includes particular language in one section
of a statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.” (alteration
in original) (internal quotation marks omitted)); see also Elwell,
693 F.3d at 1310 (explaining that Title I of the ADA should
govern over the less-specific Title II on the question of employ-
ment discrimination).
    The Eleventh Circuit arrived at a different conclusion in
Bledsoe. See 133 F.3d 816. Like the Ninth and Tenth Circuits, we
find its analysis unpersuasive. See Zimmerman, 170 F.3d at
1183–84; Elwell, 693 F.3d at 1314. The Eleventh Circuit never
considered the specific definition of “qualified individual with
a disability” found in Title II. Indeed, Bledsoe began its analysis
by dismissing Title II’s language as “brief,” noting only that


7
  We note as well that there is no requirement that Title I and Title II be
implemented in a coordinated fashion Cf. 42 U.S.C. § 12117(b) (requiring
the EEOC and the Attorney General to develop procedures ensuring that
administrative employment-discrimination complaints filed under Title I
and the Rehabilitation Act “are dealt with in a manner that avoids
duplication of effort and prevents imposition of inconsistent or conflicting
standards for the same requirements”).
Nos. 11-2265 & 11-3836                                          19

§ 12132’s last phrase prohibits “all discrimination” by a public
entity. 133 F.3d at 821–22. Without further discussion, the court
moved immediately to the statute’s legislative history where it
found several statements to support the view that Title II
prohibits public entities from engaging in employment
discrimination. In light of the legislative history, the court
found the Attorney General’s regulation worthy of Chevron
deference. Id. at 822–23. The Eleventh Circuit also relied
heavily on certain dicta in circuit precedent. See id. at 823
(“[W]ithout directly discussing the issue with which this court
is presently faced, our court has assumed that Title II covers
public employment discrimination.”). Indeed, one member of
the panel, “concur[ring] with reluctance,” suggested that the
court’s “precedent” had dictated the result. Id. at 825 (Hill, J.,
concurring specially). We are not similarly constrained.
    For the foregoing reasons, we join the Ninth and Tenth
Circuits and hold that Title II of the ADA does not cover
disability-based employment discrimination. Instead,
employment-discrimination claims must proceed under Title I
of the ADA, which addresses itself specifically to employment
discrimination and, among other things, requires the plaintiff
to satisfy certain administrative preconditions to filing suit. See
42 U.S.C. §§ 12117(a), 2000e-5. Brumfield’s Title II claim was
properly dismissed.


B. Rehabilitation Act Claim
   The Rehabilitation Act provides:
20                                        Nos. 11-2265 & 11-3836

       No otherwise qualified individual with a disabil-
       ity in the United States, as defined in section
       705(20) of this title, shall, solely by reason of her
       or his disability, be excluded from the participa-
       tion in, be denied the benefits of, or be subjected
       to discrimination under any program or activity
       receiving Federal financial assistance … .
29 U.S.C. § 794(a). Aside from the “solely by reason of”
standard of causation, which is unique to this statute and not
present in the ADA, see Washington v. Ind. High Sch. Athletic
Ass’n, 181 F.3d 840, 845 n.6 (7th Cir. 1999); see also Lewis v.
Humboldt Acquisition Corp., 681 F.3d 312, 317 (6th Cir. 2012) (en
banc), the Rehabilitation Act incorporates the standards
applicable to Title I of the ADA. 29 U.S.C. § 794(d); see also id.
§ 705(20)(B); Silk v. City of Chicago, 194 F.3d 788, 798 n.7 (7th
Cir. 1999). The ADA defines the term “discriminate against a
qualified individual on the basis of disability” to include not
only discharging an employee on the basis of disability, but
also failing to make “reasonable accommodations to the known
physical or mental limitations of an otherwise qualified
individual with a disability who is an applicant or employee,
unless [the employer] can demonstrate that the accommoda-
tion would impose an undue hardship on the operation of the
business of [the employer].” 42 U.S.C. § 12112(b)(5)(A); see
Gratzl v. Office of the Chief Judges of the 12th, 18th, 19th, & 22nd
Judicial Circuits, 601 F.3d 674, 678 & n.2 (7th Cir. 2010) (analyz-
ing a failure-to-accommodate claim under the Rehabilitation
Act by reference to the standards applicable to such claims
under the ADA).
Nos. 11-2265 & 11-3836                                        21

    We agree with the district court that Brumfield failed to
state a claim with respect to her disciplinary suspensions and
discharge. We note first that her complaint is vague on nearly
everything and provides few specifics on the nature of her
disability or the circumstances surrounding her suspensions
and discharge. Setting aside whether her allegations are
sufficiently nonconclusory to pass muster under Ashcroft v.
Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007), Brumfield never actually alleges that the
City suspended or fired her by reason of her alleged disability.
Indeed, she contends that her first and second suspensions
were based on “incidents” that had transpired in June 2006,
and that her third suspension and the decision to terminate her
employment were based at least in part on the April 2007
“feigned injury” incident.
    Brumfield argues that her conduct during the feigned-
injury incident was merely a manifestation of her psychological
problems and that she was therefore discharged because of her
disability. This does not save her claim, however. An employer
may fire an employee for engaging in unacceptable workplace
behavior without violating the ADA (or the Rehabilitation
Act), even if the behavior was precipitated by a mental illness.
See, e.g., Matthews v. Commonwealth Edison Co., 128 F.3d 1194,
1195 (7th Cir. 1997); Palmer v. Circuit Court of Cook Cnty.,
117 F.3d 351, 352 (7th Cir. 1997); McElwee v. County of Orange,
700 F.3d 635, 641 (2d Cir. 2012); Sista v. CDC Ixis N. Am., Inc.,
445 F.3d 161, 172 (2d Cir. 2006); Jones v. Am. Postal Workers
Union, 192 F.3d 417, 429 (4th Cir. 1999); Collings v. Longview
Fibre Co., 63 F.3d 828, 832 (9th Cir. 1995); cf. Raytheon Co. v.
Hernandez, 540 U.S. 44, 54 n.6 (2003). The Rehabilitation Act
22                                               Nos. 11-2265 & 11-3836

protects qualified employees from discrimination “solely by
reason of” disability, meaning that if an employer fires an
employee for any reason other than that she is disabled—“even
if the reason is the consequence of the disability”—there has
been no violation of the Rehabilitation Act.8 See Matthews,
128 F.3d at 1196 (stating a similar proposition in the context of
the ADA). Brumfield does not claim that the City’s reason for
terminating her employment was a pretext for disability
discrimination.
    Brumfield also argues that she adequately alleged a failure-
to-accommodate claim under the ADA (and, therefore, the
Rehabilitation Act), citing EEOC v. Sears, Roebuck & Co.,
417 F.3d 789 (7th Cir. 2005). In Sears we listed the following
elements of a failure-to-accommodate claim: (1) the plaintiff
must be a qualified individual with a disability; (2) the


8
  Brumfield alleged that she was qualified for her job and gives no
indication that engaging in misconduct was a frequent symptom of her
psychological condition. Where a disability so prevents an employee from
performing the essential functions of her job that no reasonable accommo-
dation could enable her to perform those functions, the employee is not
qualified for the position and therefore has no claim under the ADA (or the
Rehabilitation Act). See 42 U.S.C. § 12111(8) (defining “qualified individual”
to mean “an individual who, with or without reasonable accommodation,
can perform the essential functions of the employment position that such
individual holds or desires”); Garg v. Potter, 521 F.3d 731, 736 (7th Cir. 2008)
(“It is clear that a worker who cannot do the job even with a reasonable
accommodation has no claim under the ADA. This is true even if the
employee’s inability to perform the job is due entirely to a disability.”
(citations and internal quotation marks omitted)); see also Matthews v.
Commonwealth Edison Co., 128 F.3d 1194, 1195 (7th Cir. 1997); Palm er v.
Circuit Court of Cook Cnty., 117 F.3d 351, 352 (7th Cir. 1997).
Nos. 11-2265 & 11-3836                                             23

employer must be aware of the plaintiff’s disability; and (3) the
employer must have failed to reasonably accommodate the
disability. Id. at 797; see also Kotwica v. Rose Packing Co., 637 F.3d
744, 747–48 (7th Cir. 2011). While this formulation usually
captures the essence of a failure-to-accommodate claim under
the ADA and Rehabilitation Act, this case highlights a certain
imprecision in the first element.
    Subject to a few exceptions not relevant here, the ADA
defines the term “qualified individual” to mean “an individual
who, with or without reasonable accommodation, can perform
the essential functions of the employment position that such
individual holds or desires.” 42 U.S.C. § 12111(8) (emphasis
added). All persons who meet this definition fall within the
scope of the ADA’s general antidiscrimination provision. See id.
§ 12112(a). However, as explained in more detail below, only
individuals who possess “physical or mental limitations” but
are “otherwise qualified” for the job are eligible for reasonable
accommodations. See id. § 12112(b)(5)(A) (emphasis added).
The Sears formulation should not be understood to enable a
plaintiff to state a failure-to-accommodate claim against her
employer even though she was able to perform all essential
functions of her job without regard to her physical or mental
limitations.
    That’s the fundamental flaw in Brumfield’s failure-to-
accommodate argument. The ADA is designed to prohibit
discrimination against employees whose disabilities have no
bearing on their ability to perform a given job, but also to
ensure employment opportunities for “disabled persons who
are otherwise qualified for a job, but as a result of a disability
24                                       Nos. 11-2265 & 11-3836

are unable [to] perform the job’s essential functions without
reasonable accommodations.” Hammel v. Eau Galle Cheese
Factory, 407 F.3d 852, 862 (7th Cir. 2005) (emphasis omitted); see
also 42 U.S.C. §§ 12111(8), 12112(b)(5)(A). The ADA accom-
plishes the latter goal by providing that an employer engages
in unlawful disability discrimination when it fails to provide
reasonable accommodations for “the known physical or mental
limitations of an otherwise qualified individual.” 42 U.S.C.
§ 12112(b)(5)(A). But it is important to recognize that the
statute requires reasonable accommodation only in this
situation. Whereas the ADA’s other antidiscrimination provi-
sions protect all qualified individuals, the reasonable-
accommodation requirement applies only to the known
physical or mental limitations of otherwise qualified individu-
als.
    We have not specifically addressed the term “otherwise
qualified individual” as it appears in the reasonable-
accommodation provision. However, the meaning of the term
can be extrapolated from our two-part test for determining
whether an individual is “qualified” within the meaning of the
ADA, see Hammel, 407 F.3d at 862, a test that tracks the applica-
ble regulations, 29 C.F.R. § 1630.2(m); see also id. pt. 1630, app.
at 1630.2(m) (explaining that “[t]he determination of whether
an individual with a disability is ‘qualified’ should be made in
two steps”). First, the individual must meet the employer’s
“legitimate selection criteri[a].” Hammel, 407 F.3d at 862. This
means that the individual must be qualified on paper by, for
example, possessing “the requisite skill, experience, education
and other job-related requirements of the employment posi-
tion” at issue. 29 C.F.R. § 1630.2(m). Second, the individual
Nos. 11-2265 & 11-3836                                           25

must be “capable of performing the job’s ‘essential functions’
with or without reasonable accommodation from an em-
ployer.” Hammel, 407 F.3d at 862. This second part of the test
encompasses two categories of paper-qualified individuals
with disabilities: those who are able to perform the essential
functions of the job even without reasonable accommodation,
and those who could do so if the employer were to make an
accommodation for their physical or mental limitations. Since
members of the first category are qualified for the position in
every relevant respect, only the members of the latter category
are individuals who have “physical or mental limitations” but
are “otherwise qualified” for the position. 42 U.S.C.
§ 12112(b)(5)(A) (emphasis added). Thus, an employer’s
accommodation duty is triggered only in situations where an
individual who is qualified on paper requires an accommoda-
tion in order to be able to perform the essential functions of the
job. See id. §§ 12111(8), 12112(b)(5)(A); Hammel, 407 F.3d at 862.
    It follows that an employer need not accommodate a
disability that is irrelevant to an employee’s ability to perform
the essential functions of her job—not because such an accom-
modation might be unreasonable, but because the employee is
fully qualified for the job without accommodation and there-
fore is not entitled to an accommodation in the first place. See
Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928, 934 (7th Cir. 1995) (“If
the disability affects the employee’s work ability, the employer
must then consider if a ‘reasonable accommodation’ can be
made.”); Vande Zande v. Wis. Dep’t of Admin., 44 F.3d 538, 542
(7th Cir. 1995) (“To ‘accommodate’ a disability is to make some
change that will enable the disabled person to work.”); see also
U.S. Airways v. Barnett, 535 U.S. 391, 397 (2002) (“The [ADA]
26                                        Nos. 11-2265 & 11-3836

requires preferences in the form of ‘reasonable accommoda-
tions’ that are needed for those with disabilities to obtain the
same workplace opportunities that those without disabilities
automatically enjoy.” (emphasis altered)). A disabled employee
who is capable of performing the essential functions of a job in
spite of her physical or mental limitations is qualified for the
job, and the ADA prevents the employer from discriminating
against her on the basis of her irrelevant disability. But since
the employee’s limitations do not affect her ability to perform
those essential functions, the employer’s duty to accommodate
is not implicated. Cf. Hoffman v. Caterpillar, Inc., 256 F.3d 568,
577 (7th Cir. 2001) (“[N]othing in the [ADA] requires an
employer to accommodate the employee so that she may
perform any nonessential function [of the job at issue] that she
chooses.”).
    This explains why the EEOC defines “reasonable accommo-
dation” to refer to workplace adjustments “that enable an
individual with a disability who is qualified to perform the
essential functions of that position.” 29 C.F.R. § 1630.2(o)(1)(ii).
It also makes sense of the requirement that the employer
provide such accommodations in the first place. See JOHN
PARRY, DISABILITY DISCRIMINATION LAW , EVIDENCE AND
TESTIMONY 172 (2008) (“Reasonable accommodations are
intended to remove barriers that would prevent employees
with disabilities from properly performing their duties.”). This
is not to say that reasonable accommodations are available
only to individuals whose impairments substantially limit the
major life activity of working. Rather, to be entitled to an
accommodation, a disabled employee must have a physical or
mental limitation that prevents her from performing an
Nos. 11-2265 & 11-3836                                          27

essential function of the particular job at issue and “there must
be some causal connection between the major life activity that
is limited and the accommodation sought.” Squibb v. Mem’l
Med. Ctr., 497 F.3d 775, 785 (7th Cir. 2007) (citing Nuzum v.
Ozark Auto. Distribs., Inc., 432 F.3d 839, 848 (8th Cir. 2005))
(holding that an employer need not accommodate an em-
ployee’s back injuries simply because they substantially limited
the employee’s ability to engage in sexual relations).
    In sum, the ADA does not require an employer to accom-
modate disabilities that have no bearing on an employee’s
ability to perform the essential functions of her job. Thus, to
satisfy the first element of a failure-to-accommodate claim, the
plaintiff must show that she met the employer’s legitimate
selection criteria and needed an accommodation to perform the
essential functions of the job at issue (i.e., that she was “other-
wise qualified” under 42 U.S.C. § 12112(b)(5), not merely
“qualified” under § 12111(8)).
    Brumfield insists that the City owed her an accommoda-
tion, but nothing in her complaint suggests that her disability
affected her ability to do any aspect of her job. To state a
failure-to-accommodate claim against the City, Brumfield
needed to allege facts to support an inference that her “psy-
chological problems” prevented her from performing an
essential function of her job. Quite the opposite, Brumfield’s
four psychological examinations determined that she was fit
for duty as a police officer. The examiners apparently reported
that she was vulnerable to workplace stress, but Brumfield
doesn’t allege that this vulnerability prevented her from
performing an essential function of her job, rendering her
28                                   Nos. 11-2265 & 11-3836

disabled but “otherwise qualified” for it. The district court
properly dismissed Brumfield’s Rehabilitation Act claim.
                                                  AFFIRMED .
