                                                               [PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT

                          _________________________

                                 No. 96-5375
                          _________________________

                        District Court No. 94-8360CV-KLR

MARK BLEDSOE,

                                                           Plaintiff-Appellant,

      versus



PALM BEACH COUNTY SOIL AND WATER CONSERVATION DISTRICT,

                                                           Defendant-Appellee,



BOARD OF COUNTY COMMISSIONERS FOR PALM BEACH COUNTY,

                                                           Defendant.

                              ____________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                             _____________________

                                (January 22, 1998)

Before DUBINA and BARKETT, Circuit Judges, and HILL, Senior Circuit Judge.
DUBINA, Circuit Judge:



       Appellant, Mark Bledsoe (“Bledsoe”) appeals the district court’s grant of summary

judgment to the Palm Beach County Soil and Water Conservation District (“District”), on

Bledsoe’s claims under the Americans with Disabilities Act (“ADA”), 42 U.S.C. Section

12131 (“Title II”) and the Rehabilitation Act, 29 U.S.C. Section 701, et seq. This case

involves an issue of first impression in our circuit: whether Title II of the ADA encompasses

employment discrimination. We answer the question in the affirmative and, accordingly, we

reverse the district court’s grant of summary judgment and remand this case for further

proceedings consistent with this opinion.



                                   I. BACKGROUND

       Bledsoe was employed as a Resource Technician for the District from January 1988

until his termination in October of 1992. In his employment, Bledsoe had to spend a large

portion of his time walking, surveying, and performing manual labor in the fields. While

performing his duties, on February 26, 1990, Bledsoe sustained an injury to his knee for

which he made a claim for workers’ compensation benefits. Based on the advice of his

doctors that he should refrain from excessive walking and walking on uneven terrain,

Bledsoe requested some form of accommodation from his supervisor. In response, the

District offered Bledsoe the position of Resource Conservationist, but he rejected the offer.

In October 1992, the District terminated Bledsoe.

                                             2
       Subsequent to his termination, Bledsoe settled his workers’ compensation case with

Palm Beach County.1 The joint settlement agreement entered into by the parties contained

the following partial release provision:

              As further consideration for the aforementioned payment, the
       Employee/Claimant agrees and does hereby release, discharge, and surrender
       any and all claims, whether or not asserted, against the Employer/Carrier or
       Servicing Agent, or any of its officers, agents, servants, employees, directors,
       successors, assigns, and any other person or entity so connected to the
       Employer/Carrier or Servicing Agent, of any nature whatsoever, excepting
       only (1) future medical pursuant to other provisions of this agreement, or (2)
       penalties, interest or attorneys’ fees which might be due because of failure to
       pay order approving this Joint Petition within 30 days.

R1-34-Exh. A.

       Bledsoe filed suit on June 24, 1994, against the District and Palm Beach County

alleging that both of those entities were his “employer” within the meaning of Title I of the

ADA and the Rehabilitation Act and had violated his rights protected by those acts.

Specifically, Bledsoe alleged that he had a disability within the meaning of the law, that the

defendants had failed to accommodate his disability, and that the defendants discharged him

as a result of his disability. Palm Beach County filed a motion to dismiss arguing that it was

not Bledsoe’s “employer” for purposes of the claims and that it had been released from the

claims by virtue of Bledsoe’s partial release of his workers’ compensation benefits. After


       1
          At all relevant times, the District was Bledsoe’s employer; however, because the
District had no more than five employees at a time, it participated in Palm Beach County’s
insurance plans, including its workers’ compensation plan. For a fee, the County adjusted
workers’ compensation claims made against the District. Therefore, Palm Beach County was
the District’s workers’ compensation carrier and the party with whom Bledsoe settled his
workers’ compensation claim.

                                              3
consideration, the district court determined that Palm Beach County was not Bledsoe’s

employer and, therefore, summary judgment should be entered for it on all claims. Bledsoe

has not appealed the district court’s disposition that the County was not his employer.

       The litigation continued against the District. Because the District alone did not have

the requisite number of employees to effect coverage under Title I of the ADA,2 Bledsoe

sought leave to amend the complaint to bring his claim under Title II, and the district court

granted leave. The District filed a motion for summary judgment arguing first that Title II

of the ADA does not apply to discrimination in employment and, second, that the partial

release in Bledsoe’s joint settlement agreement with the County released his claims against

the District. Bledsoe opposed the motion. The district court entered summary judgment for

the District on both Bledsoe’s ADA and Rehabilitation Act claims. Bledsoe then perfected

this appeal.



                                    II. DISCUSSION

       Bledsoe raises two issues for our review: (1) whether the district court properly

concluded that the workers’ compensation release bars Bledsoe’s federal claims of

employment discrimination; and (2) whether the district court properly determined that Title

II of the ADA does not apply to discrimination in employment. We review the district



       2
          The term “employer” in Title I is defined as “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. . . .” 42 U.S.C. § 12111(5).

                                             4
court’s order granting summary judgment de novo. Parks v. City of Warner Robins, Ga., 43

F.3d 609, 612 (11th Cir. 1995). After conducting our review, we conclude that the district

court improperly found that the workers’ compensation release barred Bledsoe’s federal

claims of employment discrimination and that Title II does not encompass employment

discrimination.

       A. Workers’ Compensation Release

       In its determination that the workers’ compensation release barred Bledsoe’s ADA

and Rehabilitation Act claims, the district court relied on F.M. v. Palm Beach County, 912

F.Supp. 514 (S.D. Fla. 1995), aff’d F.M. v. County Comm’rs, 84 F.3d 438 (11th Cir.

1996)(Table). On appeal, Bledsoe contends that the district court erred in relying on F.M.

v. Palm Beach County. He argues that the issue should have been analyzed under this

circuit’s decision in Puentes v. United Parcel Service, Inc., 86 F.3d 196 (11th Cir. 1996).

Bledsoe is correct.

       The Supreme Court has stated that an employee can waive his “cause of action under

Title VII as part of a voluntary settlement agreement” if “the employee’s consent to the

settlement was voluntary and knowing.” Alexander v. Gardner-Denver Co., 415 U.S. 36, 52,

n.15 (1974). The same principles should be equally applicable to waiver of rights under Title

II of the ADA. See Rivera-Flores v. Bristol-Myers Squibb Caribbean, 112 F.3d 9 (1st Cir.

1997). The waiver of such remedial rights, however, “must be closely scrutinized,” and a

court must look to the totality of the circumstances to determine whether the release is

knowing and voluntary. Puentes v. United Parcel Service, 86 F.3d at 198.

                                             5
       In Puentes, the plaintiffs, at the time of their terminations, were offered substantial

severance packages and the ability to resign “for personal reasons” on the condition that they

execute unambiguous release agreements waiving all employment discrimination claims

arising out of their terminations. Both plaintiffs executed the agreements, but later filed suit

against UPS alleging racial and national origin discrimination. UPS moved for summary

judgment, which the district court granted. On appeal, this court reversed, concluding that

a jury should decide whether the releases were knowingly and voluntarily executed.

       The Puentes court explained that the following factors bear on whether a release is

knowing and voluntary:

       the plaintiff’s education and business experience; the amount of time the
       plaintiff considered the agreement before signing it; the clarity of the
       agreement; the plaintiff’s opportunity to consult with an attorney; the
       employer’s encouragement or discouragement of consultation with an
       attorney; and the consideration given in exchange for the waiver when
       compared with the benefits to which the employee was already entitled.

86 F.3d at 198 (quoting Beadle v. City of Tampa, 42 F.3d 633, 635 (11th Cir.), cert. denied,

515 U.S. 1152 (1995)). When reviewing these factors in Puentes, the court determined that

the plaintiffs did not have sufficient time to consider their release agreements and neither

plaintiff had consulted with an attorney. The court also noted that neither plaintiff had any

role in deciding the terms of the agreement; the plaintiffs were simply handed printed forms.

86 F.3d at 199. These factors raised a genuine issue of material fact as to whether plaintiffs

voluntarily and knowingly executed the release agreements. Accordingly, the issue could

not be resolved by summary judgment.


                                               6
         The factors set forth in Puentes should have been considered by the district court in

this case. The district court should not have summarily adopted a decision from another case,

even though it dealt with the exact same release form. Each factor should be independently

analyzed. In applying the Puentes factors, we conclude that a jury question exists about

whether Bledsoe voluntarily and knowingly released ADA and Rehabilitation Act claims.

The language of the release indicates that Bledsoe was only settling his claim for wage loss

benefits under the workers’ compensation law. There is nothing in the release that suggests

or mentions a waiver of federal discrimination claims. Additionally, there was no evidence

in the record of any consideration given to Bledsoe in exchange for his allegedly waiving his

rights under the ADA and the Rehabilitation Act. Moreover, Bledsoe and his counsel

provided affidavits to the district court stating that the only matters released were benefits

for wage loss available under the workers’ compensation law, thus creating an issue of fact

as to what was released. The district court erred in granting summary judgment on this

claim.

         B. Title II of the ADA

         The district court held that Title II of the ADA does not encompass employment

discrimination. Bledsoe3 urges this court to reverse and join several other courts which have




         3
        Joining Bledsoe’s position are the United States Department of Justice, the National
Employment Lawyers Association, and the American Civil Liberties Union, which all filed
amicus briefs with the court.

                                               7
held that Title II does encompass employment discrimination.4 Our circuit has not squarely

addressed the issue, but two of our recent decisions have assumed or implied that Title II

creates a cause of action for employment discrimination. See Holbrook v. City of Alpharetta,

Ga., 112 F.3d 1522, 1528-29 (11th Cir. 1997); McNely v. Ocala Star-Banner Corp., 99 F.3d

1068, 1073 (11th Cir. 1996), cert. denied, 117 S.Ct. 1819 (1997). Our review of the statutory

language of Title II, the Department of Justice’s (“DOJ”) regulations, our circuit’s reference

to the issue, and other courts’ resolution of the issue, persuade us that Title II of the ADA

does encompass public employment discrimination.

       1. The statutory language

       The ADA was implemented “to provide a clear and comprehensive national mandate

for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. §

12101(b)(1). In passing the ADA, Congress recognized that “society has tended to isolate

and segregate individuals with disabilities, and, despite some improvements, such forms of



       4
          See e.g., Doe v. University of Maryland Medical Sys. Corp., 50 F.3d 1261, 1264-65
  th
(4 Cir. 1995); Dominguez v. City of Council Bluffs, Iowa, 974 F.Supp. 732, 736-37 (S.D.
Iowa 1997); Hernandez v. City of Hartford, 959 F.Supp. 125, 133 (D.Conn. 1997); Davoll
v. Webb, 943 F.Supp. 1289, 1297 (D.Colo. 1996); Wagner v. Texas A & M Univ., 939
F.Supp. 1297, 1309 (S.D.Tex. 1996); Graboski v. Guiliani, 937 F.Supp. 258, 267-69
(S.D.N.Y. 1996); Silk v. City of Chicago, No. 95C0143, 312074, ( N.D.Ill., June 7, 1996);
Lundstedt v. City of Miami, 5 A.D. Cases 568 (S.D.Fla. Oct. 11, 1995); Bruton v.
Southeastern Pa. Transp. Authority, Civ.A.No. 94-CV-3111, (E.D.Pa. Aug. 19, 1994); Ethrie
v. State of Alabama, 847 F.Supp. 9905-06 (M.D.Ala. 1993); Eisfelder v. Michigan Dept. of
Natural Resources, 847 F.Supp. 78, 83 (W.D.Mich. 1993); Finley v. Giacobbe, 827 F.Supp.
215, 219-20 (S.D.N.Y. 1993); Petersen v. University of Wis. Bd. of Regents, 818 F.Supp.
1276, 1278 (W.D.Wis. 1993); Bell v. Retirement Bd. of Firemen’s Annuity & Benefit Fund,
( N.D.Ill., Oct. 6, 1993).up

                                              8
discrimination against individuals with disabilities continue to be a serious and pervasive

social problem.” 42 U.S.C. § 12101(a)(2). Congress further recognized that disabled

individuals face extraordinary barriers and discrimination by outright intentional segregation

and often have “no legal recourse to redress such discrimination.” 42 U.S.C. § 12101(a)(4)

and (5).   Moreover, in enacting the ADA, Congress hoped to increase employment

opportunities for disabled people through prevention of employment discrimination. 42

U.S.C. § 12101(a)(3), (8), and (9).

       The provision of Title II allegedly violated by the District in this action provides:

               Subject to the provisions of this [title], no qualified individual with a
       disability shall, by reason of such disability, be excluded from participation in
       or be denied the benefits of the services, programs, or activities of a public
       entity, or be subjected to discrimination by any such entity.

42 U.S.C. § 12132. “Public entity” is defined to include “(A) any State or local government;

[and] (B) any department, agency, special purpose district, or other instrumentality of a State

or States or local government; . . . .” 42 U.S.C. § 12131(1)(A) & (B).

       The statutory language used by Congress in the creation of Title II is brief. Extensive

legislative commentary regarding the applicability of Title II to employment discrimination,

however, is so pervasive as to belie any contention that Title II does not apply to employment

actions. The Report of the United States House of Representatives Judiciary Committee

stated, “[i]n the area of employment, title II incorporates the duty set forth in the regulations

for Sections 501, 503 and 504 of the Rehabilitation Act to provide a ‘reasonable

accommodation’ that does not constitute an ‘undue hardship.’” See H.R.Rep. No. 101-


                                               9
485(III), at 50 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 473. In explaining the forms of

discrimination prohibited by Title II, the Report noted that:

       The Committee intends, however, that the forms of discrimination prohibited
       by section 202 [codified as 42 U.S.C. § 12132] be identical to those set out in
       the applicable provisions of titles I and III of this legislation . . . . In addition,
       activities which do not fit into the employment or public accommodations
       context are governed by the analogous section 504 regulations.

H.R.Rep.No. 101- 485 (II), at 84 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 367. The

Report further notes: “The purpose of title II is to continue to break down barriers to the

integrated participation of people with disabilities in all aspects of community life. The

Committee intends that title II work in the same manner as Section 504.” 1990 U.S.C.C.A.N.

at 472-73.

       It is significant that Congress intended Title II to work in the same manner as Section

504 of the Rehabilitation Act, because Section 504 was so focused on employment

discrimination that Congress enacted subsequent legislation to clarify that Section 504

applied to other forms of discrimination in addition to employment discrimination. The first

Supreme Court case to consider Section 504, Consolidated Rail v. Darrone, 465 U.S. 624

(1984), was an employment discrimination case. The Court stated:

       Among [the] purposes [of the Rehabilitation Act] as originally stated, were to
       ‘promote and expand employment opportunities in the public and private
       sectors for handicapped individuals and to place such individuals in
       employment.’ 29 U.S.C. § 701(8). . . .¶ Section 504 neither refers explicitly
       to § 604 nor contains analogous limiting language; rather, that section
       prohibits discrimination against the handicapped under ‘any program or
       activity receiving Federal financial assistance.’ And it is unquestionable that
       the section was intended to reach employment discrimination.


                                                10
Id. at 626-632 (emphasis in original).

       Part of the language of Title II prohibits public entities from excluding disabled

individuals from “services, programs, or activities” or denying them the benefits of those

services, programs, or activities. The district court in this case focused on the meaning of

the words “services, programs, or activities.” Bledsoe v. Palm Beach Soil and Water

Conservation Dist., 942 F.Supp. 1439, 1443 (S.D.Fla. 1996). The district court found that

these words, “understood as a whole, focus [] on a public [] entity’s outputs rather than its

imputs [sic].” Id. The court characterized public employment as “an imput [sic]” that

enables a public entity “to produce desired outputs, such as parks and schools.” Id. at 1444.

The court’s analysis ignored the prohibition in the final clause of the section, which protects

qualified individuals with a disability from being “subjected to discrimination by any such

entity,” and is not tied directly to the “services, programs, or activities” of the public entity.

42 U.S.C. § 12132. As the Second Circuit found in Innovative Health Systems, Inc. v. City

of White Plains, 117 F.3d 37, 44-45 (2d Cir. 1997), “the language of Title II’s anti-

discrimination provision does not limit the ADA’s coverage to conduct that occurs in the

‘programs, services, or activities’ of [a public entity]. Rather, it is a catch-all phrase that

prohibits all discrimination by a public entity, regardless of the context, . . . .” Accordingly,

employment coverage is clear from the language and structure of Title II.

       2. DOJ regulations




                                               11
       The DOJ regulations also support the position that Title II encompasses public

employment discrimination.5

       Congress specifically provided in the ADA statute that the DOJ should write

regulations implementing Title II’s prohibition against discrimination. 42 U.S.C. § 12134.

The House Judiciary Committee Report provided:

              Unlike the other titles in this Act, title II does not list all of the forms
       of discrimination that the title is intended to prohibit. Thus, the purpose of this
       section is to direct the Attorney General to issue regulations setting forth the
       forms of discrimination prohibited.

H.R.Rep. 101-485(III), at 52 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 475.

       In promulgating regulations pertinent to Title II, the Attorney General created a

specific subpart in the Code of Federal Regulations (“CFR”) addressing employment

discrimination by public entities. These regulations state:

              (a) 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.

               (b)(1) For purposes of this part, the requirements of title I of the Act .
       . . apply to employment in any service, program, or activity conducted by a


       5
         The district court noted its familiarity with the principle that “considerable weight
should be accorded to an executive department’s construction of a statutory scheme it is
entrusted to administer.” Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 844 (1984). However, the district court found that the plain language of the
ADA, when read as a whole, does not support a cause of action for employment
discrimination under Title II, and, therefore, Chevron deference was not applicable in this
case. “[T]he Court does not believe that the conflicting legislative history sufficiently
obfuscates the statute to create a vacuum of meaning for the Justice Department to fill.”
Bledsoe, 942 F.Supp. at 1449. The court concluded that when the language of the statute is
plain, administrative interpretation of the statute is not entitled to deference. Id.

                                               12
       public entity if that public entity is also subject to the jurisdiction of title I [i.e.
       employs fifteen or more employees].

              (b)(2) For the purposes of this part, the requirements of section 504 of
       the Rehabilitation Act of 1973, as established by the regulations of the
       Department of Justice in 28 CFR part 41, as those requirements pertain to
       employment, apply to employment in any service, program, or activity
       conducted by a public entity if that public entity is not also subject to the
       jurisdiction of title I.

28 C.F.R. § 35.140.

       There has been no modification to the regulations promulgated by the Attorney

General. Rather, in 1997, the United States Senate unanimously gave its consent to the

printing in the Congressional Record of the Board of Directors, Office of Compliance

regulation adopting the Attorney General’s interpretation of Title II. See 143 Cong. Rec.

S30-31 (January 7, 1997).6 Also, as this court has stated, “[C]ongress is deemed to know the

executive and judicial gloss given to certain language and thus adopts the existing

interpretation unless it affirmatively acts to change the meaning.” Florida National Guard

v. Federal Labor Relations Authority, 699 F.2d 1082, 1087 (11th Cir. 1983).

       Under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.

837, 844 (1984), “considerable weight should be accorded to an executive department’s

construction of a statutory scheme,” unless the regulations are “arbitrary, capricious, or

manifestly contrary to the statute.” The DOJ regulations provide clearly that Title II



       6
             We note, however, that these regulations do not become effective until they
are approved by Congress and published in the Congressional Record. See 2 U.S.C.A. §
1384(d)(3).

                                                 13
encompasses employment actions against public entities. The regulations are neither

“arbitrary, capricious, [n]or manifestly contrary to the statute.” Id. at 844. Thus, we cannot

ignore the DOJ’s reasonable construction of statutory language.

       3. Our court’s reference to the issue

       In McNely v. Ocala Star-Banner Corp., 99 F.3d 1068 (11th Cir. 1996), cert. denied,

117 S.Ct. 1819 (1997), our court addressed the question whether a plaintiff suing under the

ADA can recover for discrimination without showing that his disability was the sole cause

for the adverse employment action taken against him. We answered the question in the

affirmative. In discussing the issue, we noted that “[t]he stated purpose of the ADA is ‘to

provide a clear and comprehensive national mandate for the elimination of discrimination

against individuals with disabilities.’ ” 99 F.3d at 1073, quoting 42 U.S.C. § 12101(b)(1).

We acknowledged that Title I of the ADA applies to the private sector and provides for the

elimination of disability-based discrimination. We then stated that “Title II of the ADA,

which applies to public sector employment, contains a parallel provision.” Id. (emphasis

added). Later, we again assumed that Title II covered employment: “Title II (the public

sector title).” Id. at 1074. Thus, without directly discussing the issue with which this court

is presently faced, our court has assumed that Title II covers public employment

discrimination.

       Additionally, in Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522 (11th Cir. 1997),

we addressed the question whether claims brought pursuant to Title II of the ADA involving

events that occurred prior to the effective date of Title I are actionable under the ADA or the

                                               14
Rehabilitation Act of 1973. In discussing this issue, we noted the language of Title II, the

federal regulations promulgated pursuant to the ADA, and the Equal Employment

Opportunity Commission (“EEOC”) guide. 112 F.3d at 1528-29. The court then determined

that “Title II thus incorporates by reference the substantive, detailed regulations prohibiting

discrimination against disabled individuals contained in Title I.” Id. at 1529. We further

noted:

         The above regulations suggest that the provisions of Title II extending the
         protections afforded to employees in the private sector under Title I to state
         and local government workers became effective only when Title I went into
         effect. As explicitly described in the EEOC manual, the Rehabilitation Act
         provided a remedy for discrimination in public employment prior to the
         effective date of Title I. We conclude that Title II of the ADA did not become
         effective until the date on which Title I became effective, July 26, 1992, and,
         prior to that date, a plaintiff’s remedy for discrimination under Title II of the
         ADA was the Rehabilitation Act of 1973.

Id. Thus, the court implicitly determined that Title II was the “new replacement” for the

Rehabilitation Act, which is what the legislative history indicates.

         Although not decisions of our court, Lundstedt v. City of Miami, 5 A.D. Cases 568

(S.D.Fla. Oct. 11, 1995), and Ethridge v. State of Alabama, 847 F.Supp. 903 (M.D.Ala.

1993), two district court decisions from within our circuit, held that Title II clearly

encompasses employment discrimination by public entities. 5 A.D. Cases at 572-74; 847

F.Supp. at 906. The district court in Ethridge found that although a plain reading of Title II

does not reveal whether it covers employment discrimination, the legislative history of and

regulations promulgated under Title II make clear that the section prohibits employment

discrimination by public entities on the basis of disability. The court noted that the primary

                                                15
purpose of Title II was to extend the reach of Section 504 of the Rehabilitation Act and that

Section 504 “clearly applies to employment discrimination.” 847 F.Supp. at 906, citing

Consolidated Rail Corp. v. Darrone, 465 U.S. 624 (1984). The Ethridge court also discussed

the House Report addressing Title II and the regulations implementing Title II to find that

Title II covers employment discrimination.

       Additionally, the Ethridge court noted the difference in the application of the

exhaustion requirement which is mandatory in Title I but not in Title II of the ADA.7

The court found that although Title I requires exhaustion, Title II does not because it

“incorporates the enforcement procedures of the Rehabilitation Act, . . . which do not require

exhaustion of administrative remedies for non-federal employees.” 847 F.Supp. at 907. “An



       7
         The district court in this case expressed great concern in the inconsistency in the
exhaustion requirement if the court found that Title II covered employment discrimination.
“Acceptance of the ‘no exhaustion rule,’ when coupled with the slighting of Title II’s plain
meaning and the redundancy of Titles I and II, renders the entire statutory framework a
monstrous distortion.” 942 F.Supp. at 1445. The court further stated that:

       The statute the majority of the district courts (and the Justice Department) give
       us is completely bewildering: Both Title I and Titles II apply to employment,
       although Title II says nothing at all on the subject and Title I lays out a
       comprehensive scheme to deal with employment issues; Title I says an
       employer must hire 15 employees to be sued for employment discrimination,
       but you can get around this under Title II if your employer is an arm of the
       State; Title I says you must exhaust administrative remedies, but you can
       ignore this requirement too if you are employed by the State. If this is really
       what Congress meant, then the ADA surely must rank as one of the great
       drafting debacles of recent times. Unwilling to impute such sheer ineptitude
       to Congress, the Court must part company with the current consensus.

Id. at 1445-46.

                                              16
analysis of Title II regulations further makes clear that, while resort to administrative

remedies is optional, it is not required.” Id. The court referenced the regulations, which

plainly state that exhaustion is not required. See 28 C.F.R. § 35.172, Appendix A. We agree

with this analysis and note that it is generally presumed that Congress acts intentionally and

purposely where “ ‘it includes particular language in one section of a statute but omits it in

another.’ ” See Russello v. United States, 464 U.S. 16, 23 (1983) (quoting United States v.

Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972).

       4. Other courts’ resolution of the issue

       The only other circuit to consider this issue did not really discuss it. The court

allowed a plaintiff to proceed against the employer/hospital under both the Rehabilitation Act

and Title II. See Doe v. University of Maryland Medical Sys. Corp., 50 F.3d 1261 (4th Cir.

1995). The court found that both Title II and the Rehabilitation Act “prohibit discrimination

against an otherwise qualified individual with a disability.” Id. at 1264. The court noted that

the parties did not dispute that the Medical System was “a ‘public entity’ subject to the

provisions of Title II of the ADA.” Id. n.8. Accordingly, Doe does not provide much

guidance on the issue before us for consideration.

       In Wagner v. Texas A & M University, 939 F.Supp. 1297 (S.D.Tex. 1996), the court

determined that a tenured professor could bring a Title II claim against the University when

he was not rehired to his same position following a medical disability leave. In so finding,

the court found that Title II obtains its remedies from the Rehabilitation Act, which does not

require exhaustion of administrative remedies before filing suit. The court relied upon

                                              17
Ethridge in making its conclusion. In its discussion, the court noted that Title II encompasses

employment actions. 939 F.Supp. at 1310. The court also discussed the policy anomaly

created when Title II does not require exhaustion of administrative remedies. The court

stated that Title I and Title II create “separate and distinct enforceable rights.” Id. “Title I

addresses primarily the rights of disabled individuals in workplaces, while Title II addresses

the rights of disabled citizens vis-a-vis the government.” Id. The court stated that this

inconsistency “is undesirable from a policy standpoint;” however, given the DOJ’s regulatory

posture, the court would “not fill the gaps in the ADA in an attempt to effectuate a purported

Congressional intent that is not entirely evident.” Id. See also Hernandez v. City of

Hartford, 959 F.Supp. 125 (D.Conn. 1997); Graboski v. Guiliani, 937 F.Supp. 258 (S.D.N.Y.

1996); Silk v. City of Chicago, No. 95C0143, (N.D.Ill. June 7, 1996).

       In Dertz v. City of Chicago, 912 F.Supp. 319 (N.D.Ill. 1995), the court discussed

whether plaintiffs must exhaust administrative remedies prior to bringing a claim under Title

II of the ADA. The plaintiffs in Dertz were former police officers for the City of Chicago

who had been placed on medical leave and were not allowed to return to their former

positions. The plaintiffs filed suit under the Rehabilitation Act and Titles I and II of the

ADA. The court relied on the district court’s decision in Petersen v. Univ. of Wisconsin Bd.

of Regents, 818 F.Supp. 1276 (W.D.Wis. 1993), to find that the procedural requirements of

Title I do not apply to Title II plaintiffs. Dertz, 912 F.Supp. at 324-25. Because the court

found that the plaintiffs were not required to exhaust their administrative remedies under



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Title II, their actions were allowed to proceed. Id. at 325. See also Finley v. Giacobbe, 827

F.Supp. 215, 219 (S.D.N.Y. 1993).

       The District cites other district court cases which have decided this issue as did the

district court in this case. See e.g., Decker v. University of Houston, 970 F.Supp. 575

(S.D.Tex. 1997); Iskander v. Rodeo Sanitary District, No. C-94-0479-SC, (N.D.Cal. Feb.7,

1995), aff’d, 121 F.3d 715 (9th Cir. 1997)(Table). However, in light of the foregoing

discussion, these cases are not persuasive. Even the district judge in this case noted that he

was “swimming against the current,” 942 F.Supp. at 1442, in deciding that Title II does not

encompass employment discrimination claims.

       In conclusion, we hold that Title II does state a cause of action for employment

discrimination and reverse the district court’s grant of summary judgment.

       REVERSED and REMANDED.




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