     11-2215
     Mary Jo C. v. New York State and Local Retirement System et ano.



 1                        UNITED STATES COURT OF APPEALS

 2                            FOR THE SECOND CIRCUIT

 3                               August Term, 2011

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

 5                               Docket No. 11-2215

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

 7                                   MARY JO C.,

 8                              Plaintiff-Appellant,

 9                                       - v -

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

12                             Defendants-Appellees.

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

14   Before:     SACK, RAGGI, Circuit Judges, and SWAIN, District
15               Judge.*
16
17               Appeal by the plaintiff from a judgment of the United

18   States District Court for the Eastern District of New York

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

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

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

22   of the Americans with Disabilities Act does not require state

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

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



           *
            The Honorable Laura Taylor Swain, United States District
     Judge for the Southern District of New York, sitting by
     designation.
 1   discrimination.   Because we conclude that Title II does, in some

 2   circumstances, require reasonable departures from standards

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

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

 5   based principally on the structure of the Americans with

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

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

 8   dismissal of that claim.

 9             Affirmed in part; vacated and remanded in part.

10                              WILLIAM M. BROOKS, Mental Disability Law
11                              Clinic, Touro College, Jacob D.
12                              Fuchsberg Law Center, Central Islip, NY,
13                              for Plaintiff-Appellant.

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

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

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

35                              Jo Anne Simon, Jo Anne Simon P.C.,
36                              Brooklyn, NY, for Amici Curiae
37                              Disability Advocates, Inc., DRVT,
38                              National Disability Rights Network, and

                                       2
 1                              State of Connecticut Office of
 2                              Protection and Advocacy for Persons with
 3                              Disabilities.

 4   SACK, Circuit Judge:

 5               The plaintiff alleges that her job as a librarian at

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

 7   because of behavior symptomatic of her chronic mental illness.

 8   Although she alleges that she would have been eligible for

 9   disability retirement benefits under New York State law, her

10   mental illness interfered with her ability to comply with New

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

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

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

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

15   or extending the deadline by reclassifying her termination as a

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

17               Thereafter, the plaintiff instituted this lawsuit in

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

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

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

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

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

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

24   motion to dismiss because the court concluded principally that

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

26   modifications of mandatory requirements imposed by state laws,

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

                                       3
 1             For the reasons set forth below, the district court's

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

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

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

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

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

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

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

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

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

11   exercise supplemental jurisdiction over the plaintiff's state law

12   claims is vacated for reconsideration depending on the course of

13   the further proceedings contemplated by this opinion.

14                               BACKGROUND

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

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

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

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

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

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

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

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

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

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

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



                                      4
 1   into the complaint by reference, and matters of which a court may

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

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

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

 5   it relied in bringing the suit.").

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

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

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

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

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

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

12   working for the Library, her employment was terminated in

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

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

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

16   termination, "libraries in Suffolk County communicated among

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

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

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

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

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

22             In some circumstances, New York provides disability

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

24   or mentally incapacitated for the performance of gainful

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




                                        5
 1   (b)(3)(c).    According to the Complaint, the plaintiff would have

 2   been eligible for disability retirement benefits under New York

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

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

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

 6   illness."    Id. ¶ 20.

 7                During the three-month period following her

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

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

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

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

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

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

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

15   extended the time during which the plaintiff could file for

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

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

18                The plaintiff's condition improved in November 2007,

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

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

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

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

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

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




                                        6
 1              While awaiting the NYSLRS's response, the plaintiff's

 2   brother received notice that the plaintiff could appeal the

 3   denial of her disability retirement benefits application, and the

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

 5   hearing officer that state law prohibited it from waiving the

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

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

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

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

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

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

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

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

14   failing to "provide a requested reasonable accommodation" by

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

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

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

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

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

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

21   declaratory judgments, an injunction requiring the NYSLRS to

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

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

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




                                         7
 1               Both defendants moved to dismiss the complaint pursuant

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

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

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

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

 6   dismiss for lack of subject matter jurisdiction, concluding that

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

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

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

10   and that the court therefore need not determine whether Congress

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

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

13   essential eligibility requirement not subject to waiver under the

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

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

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

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

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

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

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

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

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

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

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

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




                                       8
 1   contention that the plaintiff had not exhausted her

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

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

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

 5   and dismissed the complaint.

 6              The plaintiff appeals.

 7                                 DISCUSSION

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

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

10   factual allegations as true and drawing all reasonable inferences

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

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

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

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

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

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

17   plaintiff pleads factual content that allows the court to draw

18   the reasonable inference that the defendant is liable for the

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

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

21   a declaration that the plaintiff's complaint and incorporated

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

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

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




                                         9
 1              I. ADA Title II Claims Against the NYSLRS

 2   A.   Sovereign Immunity

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

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

 5   Eleventh Amendment to the United States Constitution provides

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

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

 8   prosecuted against one of the United States by Citizens of

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

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

11   interpreted as also barring suits in federal court against a

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

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

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

15   recognized by the Eleventh Amendment extends beyond the states

16   themselves to 'state agents and state instrumentalities' that

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

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

19              "Congress may abrogate the states' Eleventh Amendment

20   immunity when acting pursuant to [Congressional] authority under

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

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

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

24   sovereign immunity from claims brought against them under Title

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




                                       10
 1   this abrogation depends on "whether Congress acted pursuant to a

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

 3   (internal quotation marks omitted).

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

 5   Supreme Court established a three-step process for analyzing

 6   whether Congress has validly abrogated a state's sovereign

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

 8               [A court must] determine . . . , on a
 9               claim-by-claim basis, (1) which aspects of
10               the State's alleged conduct violated Title
11               II; (2) to what extent such misconduct also
12               violated the Fourteenth Amendment; and (3)
13               insofar as such misconduct violated Title II
14               but did not violate the Fourteenth Amendment,
15               whether Congress's purported abrogation of
16               sovereign immunity as to that class of
17               conduct is nevertheless valid.

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

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

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

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

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

23   analysis.   The claim ends.").

24   B.   The "Reasonable Modification"
25        Requirement of Title II of the ADA

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

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

28   investigation into the need for comprehensive legislation to

29   address discrimination against persons with disabilities."   Lane,

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

31   disabilities continually encounter various forms of

                                      11
 1   discrimination, including outright intentional exclusion, the

 2   discriminatory effects of architectural, transportation, and

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

 4   failure to make modifications to existing facilities and

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

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

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

 8   national mandate for the elimination of discrimination against

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

10   forbids discrimination against persons with disabilities in three

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

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

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

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

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

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

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

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

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

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

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

22   reasonable accommodations in order to provide qualified


          1
            The ADA "defines 'public entity' to include 'any State or
     local government' and 'any department, agency, . . . or other
     instrumentality of a State.'" United States v. Georgia, 546 U.S.
     at 154 (quoting 42 U.S.C. § 12131(1)) (some internal quotation
     marks omitted).

                                       12
 1   individuals with an equal opportunity to receive benefits from or

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

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

 4   quotation marks omitted).

 5             To prove a violation of Title II, a party
 6             must therefore establish: (1) that he is a
 7             "qualified individual" with a disability; (2)
 8             that he was excluded from participation in a
 9             public entity's services, programs or
10             activities or was otherwise discriminated
11             against by a public entity; and (3) that such
12             exclusion or discrimination was due to his
13             disability.
14   Hargrave v. Vermont, 340 F.3d 27, 34–35 (2d Cir. 2003).

15             A "'qualified individual with a disability'"
16             is defined as "an individual with a
17             disability who, with or without reasonable
18             modifications to rules, policies, or
19             practices, the removal of architectural,
20             communication, or transportation barriers, or
21             the provision of auxiliary aids and services,
22             meets the essential eligibility requirements
23             for the receipt of services or the
24             participation in programs or activities
25             provided by a public entity."
26   United States v. Georgia, 546 U.S. at 153-54 (quoting 42 U.S.C.

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

28   modifications in policies, practices, or procedures when the

29   modifications are necessary to avoid discrimination on the basis

30   of disability, unless the public entity can demonstrate that

31   making the modifications would fundamentally alter the nature of

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

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

          2
            "We have previously made clear that 28 C.F.R.
     § 35.130(b)(7) was intended to implement 42 U.S.C. § 12131(2)."
     Hargrave, 340 F.3d at 38; see also infra note 5.

                                     13
 1   requested accommodation 'would fundamentally alter the nature of

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

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

 4   C.F.R. § 35.130(b)(7)).

 5              Typically, "the determination of whether a particular

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

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

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

 9   disability in question and the cost to the organization that

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

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

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

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

14   'reasonable modifications' which should be implemented, or

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

16   81 F.3d at 1485.

17   C.   The District Court's Decision as to Whether
18        the Plaintiff is a "Qualified Individual"

19              The district court began its analysis of whether the

20   plaintiff adequately alleged that she is a "qualified individual

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

22   interpreted a similar filing deadline provision as

23              a condition precedent to the ripening of any
24              rights" or entitlement to disability
25              benefits, and have [concluded] that the
26              statutory filing period may [not] be extended
27              or waived by the State agency, even where the
28              applicant claims that the disability giving
29              rise to his or her claim for disability
30              benefits also rendered him incapable of

                                     14
 1             asserting his or her claim in a timely
 2             manner.
 3   Mary Jo C., 2011 WL 1748572, at *8, 2011 U.S. Dist. LEXIS 49567,

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

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

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

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

 8   administration of the program for which the plaintiff is

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

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

11   that because the filing deadline is deemed a condition precedent

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

13   an essential eligibility requirement for receipt of disability

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

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

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

17   at *27.

18             The district court then concluded that, unlike

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

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

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

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

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

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

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

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



                                     15
 1   aff'd on other grounds, 37 F. App'x 17 (2d Cir. 2002) (summary

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

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

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

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

 6   without citation to authority, that

 7               [A] two- to three-week extension[,] . . .
 8               although not excessive in scope, is
 9               unreasonable simply because it would require
10               the Board of Elections to violate a state
11               statute requiring that signatures for
12               independent nominating petitions be gathered
13               and submitted within a certain time
14               frame. . . . The Board of Elections has no
15               statutory authority to waive the requirement.
16               It is the Court's opinion that an
17               accommodation that would require a defendant
18               to violate an otherwise constitutional state
19               law is inherently unreasonable.
20
21   Id. at *6, 2001 U.S. Dist. LEXIS 11801, at *18-*19 (footnote

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

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

24   a federal statutory age requirement "would essentially rewrite

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

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

27   D.   Analysis

28               1.   Whether the Filing Deadline is an Essential

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

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

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

32   concluded that so long as a mandatory eligibility requirement is

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

                                       16
 1   requirement," and any modification of it will work a "fundamental

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

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

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

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

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

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

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

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

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

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

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

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

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

15   plaintiffs are no less successful in gaining access to benefits

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

17   alternative reason for the plaintiffs' low rate of obtaining

18   benefits: systemic problems that create obstacles to access for

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

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

21   statutory command that "no qualified individual with a disability

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

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

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

25   see 331 F.3d at 277.



                                       17
 1               We concluded that the ADA "plainly define[s] benefits

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

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

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

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

 6   is qualified, but rather its formal legal eligibility

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

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

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

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

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

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

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

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

15   "essential eligibility requirements" in order to construe the

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

17   did not construe the phrase "essential eligibility requirement"

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

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

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

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

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

23   language in the first instance.

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

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

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

                                       18
 1   403, 406 (2d Cir. 2009) (internal quotation marks omitted).   At

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

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

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

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

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

 7   text defines a qualified individual as

 8              an individual with a disability who, with or
 9              without reasonable modifications to rules,
10              policies, or practices, the removal of
11              architectural, communication, or
12              transportation barriers, or the provision of
13              auxiliary aids and services, meets the
14              essential eligibility requirements for the
15              receipt of services or the participation in
16              programs or activities provided by a public
17              entity.

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

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

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

21   reasonable modification, and (2) essential eligibility

22   requirements, which are not.

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

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

25   contrasted this flexibility with the requirement that a qualified

26   individual meet the "essential eligibility requirements" of a

27   program within the same sentence suggests that Congress meant

28   these categories to have different meanings.   "Generally,

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

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


                                     19
 1   uses certain language in one part of the statute and different

 2   language in another, the court assumes different meanings were

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

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

 5                Courts have therefore reasoned that essential

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

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

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

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

10   (observing that when an individual cannot meet an eligibility

11   requirement determined to be essential, "the only possible

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

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

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

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

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

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

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

19   tournaments.").

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

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

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

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

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

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

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

                                       20
 1   statute." (internal quotation marks omitted)).   In light of the

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

 3   practices" and "essential eligibility requirements" as two

 4   distinct categories, the application of this canon of statutory

 5   construction presents a fundamental obstacle to construing

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

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

 8   NYSLRS would have us do too.

 9             The statute uses the phrase "essential eligibility

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

11   Congress intended "all formal legal eligibility requirements" to

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

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

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

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

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

17   eligibility requirements wholly by applicable legal requirements.

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

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

20   "essential eligibility requirements" meant "all formal legal

21   eligibility requirements," every eligibility requirement would be

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

23   "essential" superfluous.   Therefore, the term "essential




                                     21
1   eligibility requirements" does not refer to all formal legal

2   eligibility requirements.3

3             Cases interpreting the "essential eligibility

4   requirement" language indicate that whether an eligibility

5   requirement is essential is determined by consulting the

6   importance of the requirement to the program in question.    See,


         3
            NYSLRS argues that the "rules, policies, [and] practices"
    subject to reasonable modification under Title II do not include
    state statutes. See NYSLRS Br. 19 ("Title II . . . requires
    reasonable modification only of 'rules, policies, or
    practices' –- not state statutes."). Our decision in Hargrave
    indicates, however, that the phrase "rules, policies, or
    practices" is not to be read so narrowly. There, the district
    court had found a Vermont statute to facially discriminate
    against individuals with mental illnesses when it allowed medical
    professionals to petition courts to invalidate durable powers of
    attorney executed by the mentally ill. 340 F.3d at 31-32.
    Vermont argued that enjoining execution of the statute "would
    fundamentally alter programs of civil commitment in Vermont."
    Id. at 37 (internal quotation marks omitted).
              In rejecting this argument, we first observed that the
    relevant regulations required "'reasonable modifications in
    policies [or] practices' in order to avoid discrimination unless
    the modifications would constitute a fundamental alteration to
    the relevant 'service, program, or activity.'" Id. at 38
    (quoting 28 C.F.R. § 35.130(b)(7)). We noted that this language
    "mirrors" and "implement[s]" the definition of a "qualified
    individual with a disability" as "'an individual who, with or
    without reasonable modifications to rules, policies, or
    practices . . . meets the essential eligibility requirements
    for . . . participation in programs or activities provided by a
    public entity.'" Id. (quoting 42 U.S.C. § 12131(2)). We
    rejected Vermont's fundamental alteration argument because
    "Defendants have failed even to assert clearly, much less show,
    that the injunction issued by the District Court would
    fundamentally alter Vermont's program authorizing and enforcing
    [durable powers of attorney]." Id. By implication, the Hargrave
    court discussed the relevant injunction of the state statute as a
    "reasonable modification[] to rules, policies, or practices,"
    which did not constitute a "fundamental alteration" of the
    program. Id. Hargrave thus casts doubt on the state's argument
    that the phrase "rules, policies, and practices" never includes
    state statutes.

                                   22
 1   e.g., Pottgen, 40 F.3d at 930 ("[T]o determine whether [the

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

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

 4   essential eligibility requirement by reviewing the importance of

 5   the requirement to the interscholastic baseball program [at

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

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

 8   reduce the competitive advantage flowing to teams using older

 9   athletes; protects younger athletes from harm; discourages

10   student athletes from delaying their education to gain athletic

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

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

13   purposes are of immense importance in any interscholastic sports

14   program.").4


          4
            Pottgen's analysis of the importance of the age
     requirement is drawn from the Eighth Circuit's discussion of
     claims under section 504 of the Rehabilitation Act of 1973. "The
     Rehabilitation Act of 1973 establishes a comprehensive federal
     program aimed at improving the lot of the handicapped. Among its
     purposes are to 'promote and expand employment opportunities in
     the public and private sectors for handicapped individuals and
     place such individuals in employment.'" Consolidated Rail v.
     Darrone, 465 U.S. 624, 626 (1984) (quoting 29 U.S.C. § 701(8)),
     superseded by statute on other grounds as stated in DeVargas v.
     Mason & Hanger-Silas Mason Co., 911 F.2d 1377, 1383-84 (10th Cir.
     1990). Section 504 of the Rehabilitation Act provides that "[n]o
     otherwise qualified individual with a disability . . . shall,
     solely by reason of her or his disability, be excluded from the
     participation in, be denied the benefits of, or be subjected to
     discrimination under any program or activity receiving Federal
     financial assistance or under any program or activity conducted
     by any Executive agency . . . ." Rehabilitation Act § 504, 29
     U.S.C. § 794.

               Although the Eighth Circuit was discussing claims under
     section 504 of the Rehabilitation Act, the Pottgen court largely

                                    23
1                This reading is reenforced by the regulations

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

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

4   practices, or procedures when the modifications are necessary to

5   avoid discrimination on the basis of disability, unless the

6   public entity can demonstrate that making the modifications would

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

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

9   that "essential eligibility requirements" are those requirements




    adopted its reasoning as to the Rehabilitation Act claims when it
    analyzed the Title II claims in the case before it. See 40 F.3d
    at 930-31. Other courts have looked to Rehabilitation Act
    precedent in deciding cases under Title II of the ADA because
    Congress intended that the ADA mirror the requirements of the
    Rehabilitation Act. See Henrietta D., 331 F.3d at 272
    ("[A]lthough there are subtle differences between these
    disability acts, the standards adopted by Title II of the ADA for
    State and local government services are generally the same as
    those required under section 504 of [the Rehabilitation Act] of
    federally assisted programs and activities. Indeed, unless one
    of those subtle distinctions is pertinent to a particular case,
    we treat claims under the two statutes identically." (internal
    quotation marks, brackets, and citations omitted)).
         5
           "[T]he Attorney General, at the instruction of Congress,
    has issued an implementing regulation that outlines the duty of a
    public entity to accommodate reasonably the needs of the disabled
    [under Title II]." Wisconsin Cmty. Servs., Inc. v. City of
    Milwaukee, 465 F.3d 737, 750-51 (7th Cir. 2006) (en banc)
    (footnote omitted). "We have previously made clear that 28
    C.F.R. § 35.130(b)(7) was intended to implement 42 U.S.C. §
    12131(2)." Hargrave, 340 F.3d at 38. "The Supreme Court never
    has decided whether these regulations are entitled to the degree
    of deference described in Chevron, U.S.A. Inc. v. National
    Resource Defense Council, Inc., 467 U.S. 837, 844 (1984).
    Nevertheless, the Court has said that, '[b]ecause the Department
    of Justice is the agency directed by Congress to issue
    regulations implementing Title II[,] . . . its views warrant
    respect.'" Wisconsin Cmty. Servs., 465 F.3d at 751 n.10 (quoting
    Olmstead v. L.C., 527 U.S. 581, 597-98 (1999)).
                                      24
 1   without which the "nature" of the program would be "fundamentally

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

 3   that some relatively minor eligibility requirements, even if set

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

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

 6   nature.

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

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

 9   plaintiff in Martin was a professional golfer with a disability

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

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

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

13   under Title III of the ADA,6 and the PGA defended on the basis


          6
            Title III provides that "[n]o individual shall be
     discriminated against on the basis of disability in the full and
     equal enjoyment of the goods, services, facilities, privileges,
     advantages, or accommodations of any place of public
     accommodation by any person who owns . . . or operates a place of
     public accommodation." 42 U.S.C. § 12182(a). Courts have read
     the requirements of Title II and Title III as being consistent
     with each other:
                The House Committee on Education and Labor
                indicated that Title II's prohibitions are to
                be "identical to those set out in the
                applicable provisions of titles I and III of
                this legislation." H.R. Rep. No.
                101–485(II), at 84 (1990), reprinted in 1990
                U.S.C.C.A.N. 303, 367. More specifically,
                the House Report on the ADA states that the
                prohibitions of discrimination on the basis
                of association from Titles I and III should
                be incorporated in the regulations
                implementing Title II. Id.; H.R. Rep. No.
                485(III), at 51 (1990), reprinted in 1990
                U.S.C.C.A.N. 445, 474; see also Kinney v.
                Yerusalim, 9 F.3d 1067, 1073 n.6 (3d Cir.
                1993) (legislative history indicates that
                                      25
 1   that allowing use of the golf-cart would work a fundamental

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

 3             The Court began its analysis by observing two ways in

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

 5   the tournament:

 6             It might alter such an essential aspect of
 7             the game of golf that it would be
 8             unacceptable even if it affected all
 9             competitors equally; changing the diameter of
10             the hole from three to six inches might be
11             such a modification. Alternatively, a less
12             significant change that has only a peripheral
13             impact on the game itself might nevertheless
14             give a disabled player, in addition to access
15             to the competition as required by Title III,
16             an advantage over others and, for that
17             reason, fundamentally alter the character of
18             the competition.

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

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

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

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

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

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



               Titles II and III are to be read
               consistently).
     Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d
     37, 47 (2d Cir. 1997), recognized as superseded on other grounds
     by Zervos v. Verizon New York, Inc., 252 F.3d 163, 171 n.7 (2d
     Cir. 2001). "Congress clearly did not intend to give public
     entities more latitude than private parties to discriminate
     against the disabled." Theriault v. Flynn, 162 F.3d 46, 53 n.10
     (1st Cir. 1998); see also Bartlett v. New York State Bd. of Law
     Examiners, 226 F.3d 69, 78 n.2 (2d Cir. 2000) ("In the context of
     this case, title II and title III of the ADA impose largely the
     same requirements . . . ."). Therefore, relevant cases
     interpreting Title III, such as Martin, are instructive here.
                                    26
 1   therefore concluded that "the walking rule is at best peripheral

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

 3   be waived in individual cases without working a fundamental

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

 5   that provides an exception to a peripheral tournament rule

 6   without impairing its purpose cannot be said to 'fundamentally

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

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

 9   sacrosanct and cannot be modified under any circumstances [was

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

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

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

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

14   the rule before determining that no accommodation would be

15   tolerable."    Id. at 691.

16             Rather than simply deferring to the entity providing

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

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

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

20   service, the Martin Court undertook an independent analysis of

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

22   service's purpose to determine whether a requested modification

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

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

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

26   automatically to whatever "formal legal eligibility requirements"

                                      27
 1   may exist, no matter how unimportant for the program in question

 2   they may be.7

 3                  And, perhaps most fundamentally, reading "essential

 4   eligibility requirements" to mean all formal legal eligibility

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

 6   remedial purpose by allowing states to insist that whatever legal

 7   requirements they may set are never subject to reasonable

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

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

10   practices" subject to reasonable modification under Title II

11   would be vanishingly small, and nearly all eligibility

12   requirements for the receipt of public services would be non-

13   waivable "essential" eligibility requirements.

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

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

16   discrimination against disabled individuals in major areas of

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

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

19   to effectuate its purpose of providing a clear and comprehensive

20   national mandate for the elimination of discrimination against

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



            7
            Our citation to Martin should in no way be construed as
     conflating the status of the states' sovereign function of law-
     making with that of a private entity's rule-making. But Martin
     persuasively indicates, along with the other considerations
     discussed, that Title II should not be construed to require
     automatic deference to a program's formal legal eligibility
     requirements, however minor they may be.
                                         28
 1   Limousine Comm'n, 687 F.3d 63, 68 (2d Cir. 2012) (internal

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

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

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

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

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

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

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

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

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

11   for disability retirement benefits for certain classes of

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

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

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

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

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

17   itself waives the deadline in the enumerated circumstances

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

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

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

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

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

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

24   filing deadline is an essential eligibility requirement, and

25   therefore dismissal is inappropriate because it is not clear from

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

                                     29
 1   "insufficient as a matter of law to support a claim upon which

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

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

 4   established a broad rule defining when requirements imposed by a

 5   state or local government constitute 'essential eligibility

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

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

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

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

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

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

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

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

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

15   requirements" necessarily refers to each and every formal legal

16   eligibility requirement imposed for participation in a public

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

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

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

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

21                2.   Whether Waiving the Filing Deadline Would be a

22   Reasonable Modification.      The district court also concluded that

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

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

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

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

                                        30
 1   provided another ground upon which it granted the NYSLRS's motion

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

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

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

 5   require modification of state laws under certain circumstances,

 6   thereby preempting them, or whether it instead intended the

 7   reasonable modification provision to stop short of encroaching on

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

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

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

11             Under the United States Constitution's Supremacy

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

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

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

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

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

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

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

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

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

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

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

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

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

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



                                     31
 1             "Congress may manifest its intent to preempt
 2             state or local law explicitly, through the
 3             express language of a federal statute, or
 4             implicitly, through the scope, structure, and
 5             purpose of the federal law." [N.Y. SMSA Ltd.
 6             P'ship v. Town of] Clarkstown, 612 F.3d [97,
 7             104 (2d Cir. 2010)]. Thus, preemption "may
 8             be either express or implied, and is
 9             compelled whether Congress' command is
10             explicitly stated in the statute's language
11             or implicitly contained in its structure and
12             purpose." Shaw v. Delta Air Lines, Inc., 463
13             U.S. 85, 95 (1983) (internal quotation marks
14             omitted).

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

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

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

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

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

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

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

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

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

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

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

26             "An actual conflict between state and federal law

27   exists when compliance with both federal and state regulations is

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

29   accomplishment and execution of the full purposes and objectives

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

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

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


                                     32
 1   Levitin v. PaineWebber, Inc., 159 F.3d 698, 705 (2d. Cir. 1998)

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

 3              [W]hen the question is whether a Federal act
 4              overrides a state law, the entire scheme of
 5              the statute must of course be considered and
 6              that which needs must be implied is of no
 7              less force than that which is expressed. If
 8              the purpose of the act cannot otherwise be
 9              accomplished -- if its operation within its
10              chosen field else must be frustrated and its
11              provisions be refused their natural effect --
12              the state law must yield to the regulation of
13              Congress within the sphere of its delegated
14              power.

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

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

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

18   informed by examining the federal statute as a whole and

19   identifying its purpose and intended effects."   Id.

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

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

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

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

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

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

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

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

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

29   Congress intended to exclude modifications that require violation

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

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


                                       33
 1   unlikely that Congress would have hidden such a significant

 2   limitation in such an anodyne statutory phrase.   When Congress

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

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

 5   individuals from the definition of "qualified individual with a

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

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

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

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

10   forbid[] discrimination against disabled individuals in major

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

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

13   disabilities continually encounter various forms of

14   discrimination, including outright intentional exclusion, the

15   discriminatory effects of architectural, transportation, and

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

17   failure to make modifications to existing facilities and

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

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

20   provide a clear and comprehensive national mandate for the

21   elimination of discrimination against individuals with

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

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

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

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

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

                                     34
 1   instrumentality of a State,'" United States v. Georgia, 546 U.S.

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

 3   And although Congress did not include an express preemption

 4   provision, it did include a provision expressly abrogating the

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

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

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

 8   the foregoing observations, requires preemption of inconsistent

 9   state law when necessary to effectuate a required "reasonable

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

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

12   modification requirement solely because they were state laws,

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

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

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

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

17   elimination of discrimination against individuals with

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

19   powerless to work any reasonable modification in any requirement

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

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

22   the ADA's reasonable modification requirement contemplates

23   modification to state laws, thereby permitting preemption of




                                     35
 1   inconsistent state laws, when necessary to effectuate Title II's

 2   reasonable modification provision.8

 3             Our conclusion is further supported by Hargrave.

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

 5   facially discriminatory Vermont statute.    Vermont had argued that

 6   in the context of the statute and implementing regulation

 7   requiring states "to make 'reasonable modifications in policies

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

 9   modifications would constitute a fundamental alteration to the

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

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

12   fundamentally alter the program at issue.    Rejecting this

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

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

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

16   hold that Title II preempted facially nondiscriminatory state


          8
            The same result obtains when considering whether "federal
     law is in 'irreconcilable conflict' with state law." Levitin,
     159 F.3d at 705. As discussed supra Part I.D.1, the relevant
     provision of the ADA distinguishes between two categories of
     requirements: "rules, policies, [and] practices" which are
     subject to reasonable modification, and "essential eligibility
     requirements," which are not. 42 U.S.C. § 12131(2). As we have
     seen, not all formal legal eligibility requirements are
     "essential eligibility requirements," which raises the
     possibility that, in certain cases, a state law may fall into the
     category of the "rules, policies, [and] practices" subject to
     reasonable modification. And if indeed a modification of a state
     law was found in a particular case to be a "reasonable
     modification" to a "rule[], polic[y], or practice[]," but the
     state law in question did not provide for modification in those
     circumstances, there would be an "irreconcilable conflict"
     between the dictates of the ADA and state law, necessitating
     preemption. Levitin, 159 F.3d at 705.
                                     36
 1   laws or mandated waiver of such laws," NYSLRS Br. at 21, it

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

 3   discussed above, Title II would preempt facially discriminatory

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

 5   law when necessary to achieve a reasonable modification to

 6   accomplish the same broad goals.

 7                Last, we observe that the proposition that the ADA

 8   preempts inconsistent state law when appropriate and necessary to

 9   effectuate a reasonable accommodation under Title II is also

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

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

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

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

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

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

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

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

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

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

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

21   requires a different order of priority.    A discriminatory state

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

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

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

25   (similar).    As the Ninth Circuit explained:



                                       37
 1               The court's obligation under the ADA . . . is
 2               to ensure that the decision reached by the
 3               state authority is appropriate under the law
 4               and in light of proposed alternatives.
 5               Otherwise, any state could adopt requirements
 6               imposing unreasonable obstacles to the
 7               disabled, and when haled into court could
 8               evade the antidiscrimination mandate of the
 9               ADA merely by explaining that the state
10               authority considered possible modifications
11               and rejected them.

12               We are mindful of the general principle that
13               courts will not second-guess the public
14               health and safety decisions of state
15               legislatures acting within their traditional
16               police powers. However, [under federal]
17               antidiscrimination laws such as the ADA which
18               require reasonable modifications to public
19               health and safety policies, it is incumbent
20               upon the courts to insure that the mandate of
21               federal law is achieved.

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

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

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

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

26   Crowder, which contemplated the modification of a mandatory

27   Hawaii State administrative regulation rather than a state

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

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

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

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

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

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

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

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


                                      38
 1   promulgated regulation . . . has the force of law." (internal

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

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

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

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

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

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

 8   the ADA to prohibit reasonable modifications to state statutes

 9   when appropriate.

10             We have examined NYSLRS's other arguments regarding

11   Title II and find them unpersuasive.

12             We therefore conclude that the district court erred in

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

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

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

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

17   Because "the determination of what constitutes reasonable

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

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

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

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

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

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

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

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

26   individualized analysis of the disabled individual's

                                     39
 1   circumstances and the accommodations that might allow him to meet

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

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

 4   E.   The District Court's Decision as to Whether the
 5        Plaintiff Adequately Alleged that She is Disabled

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

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

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

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

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

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

12   physical or mental impairment that substantially limits one or

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

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

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

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

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

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

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

20   working."   42 U.S.C. § 12102(2).

21               Although neither defendant argued to the district court

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

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

24   considered the issue sua sponte.       It concluded:

25               The complaint does not sufficiently allege
26               that plaintiff has a "disability" within the
27               meaning of the ADA. Although plaintiff
28               alleges that she has suffered from an

                                       40
 1             unidentified mental illness since
 2             adolescence, she does not allege any
 3             additional facts plausibly suggesting that
 4             such mental illness substantially limited one
 5             or more of her major life activities.
 6             Accordingly, plaintiff's complaint does not
 7             state a cognizable claim under Title II of
 8             the ADA. See, e.g., Tylicki v. St. Onge, 297
 9             F. App'x 65, 67 (2d Cir. Oct. 28, 2008)
10             (finding that the plaintiff's complaint did
11             not adequately plead a disability under Title
12             II of the ADA where it contained no
13             allegations describing how his supposed
14             mental condition substantially limited a
15             major life activity).
16   Mary Jo C., 2011 WL 1748572, at *7, 2011 U.S. Dist. LEXIS 49567,

17   at *21.

18             Although the district court noted that it "would be

19   possible for plaintiff to amend her Title II claims to

20   sufficiently plead this element as against the Library unless

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

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

23   plaintiff this opportunity because it concluded that all of the

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

25   sufficient, independent grounds.

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

27   provide her with an opportunity to present evidence of disability

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

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

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

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

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

33   quotation marks omitted))).


                                    41
 1              Inasmuch as the district court thought that it "would

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

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

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

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

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

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

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

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

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

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

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

13   amend her complaint to plead adequate allegations of disability

14   if such a motion is made.

15   F.   Title II's Abrogation of Sovereign Immunity

16              NYSLRS argues that even if the plaintiff can state a

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

18   abrogate the State's sovereign immunity for the reasonable

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

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

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

22   adjudication of the Eleventh Amendment issue by permitting the

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

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

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

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

                                      42
 1   forth in Ex parte Young, 209 U.S. 123 (1908), . . . 'a plaintiff

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

 3   notwithstanding the Eleventh Amendment -- for prospective,

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

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

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

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

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

 9              Because of our well-settled policy of avoiding the

10   unnecessary adjudication of constitutional issues, see generally

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

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

13   "plaintiff could potentially seek injunctive relief from the

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

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

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

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

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

19              II. Title II Claim Against the Library

20   A.   The District Court's Decision

21              The plaintiff also asserted a claim against the Library

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

23   to reclassify her termination as an unpaid leave of absence

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

25   discrimination against persons with disabilities in three major

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

                                     43
 1   the statute; public services, programs, and activities, which are

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

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

 4   court dismissed this claim because it concluded that the

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

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

 7   II.

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

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

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

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

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

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

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

15   entities."9

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

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

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

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



           9
            The term "covered entity" is defined to include an
     "employer," 42 U.S.C. § 12111(2), which in turn is defined to
     include a "person engaged in an industry affecting commerce who
     has 15 or more employees." Id. § 12111(5)(A). The statute
     further defines "person" as including, see id. § 12111(7); id. §
     12111(5)(B), non-federal "governments, governmental agencies,
     [and] political subdivisions," id. § 2000e(a), and defines
     "industry affecting commerce as including "any governmental
     industry, business, or activity," id. § 2000e(h), see generally
     Zimmerman v. Oregon Dep't of Justice, 170 F.3d 1169, 1172 (9th
     Cir. 1999).
                                     44
 1   acknowledging that "courts are split" on the issue, id. at *11,

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

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

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

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

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

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

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

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

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

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

12   concluding that public employees' exclusive remedy against their

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

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

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

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

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

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

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

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

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

22   employment."   Id. at 1174.

23             First, employment by a public entity is not
24             commonly thought of as a "service, program,
25             or activity of a public entity." Second, the
26             "action" words in the sentence presuppose
27             that the public entity provides an output
28             that is generally available, and that an


                                     45
 1             individual seeks to participate in or receive
 2             the benefit of such an output.
 3             Consider, for example, how a Parks Department
 4             would answer the question, "What are the
 5             services, programs, and activities of the
 6             Parks Department?" It might answer, "We
 7             operate a swimming pool; we lead nature
 8             walks; we maintain playgrounds." It would
 9             not answer, "We buy lawnmowers and hire
10             people to operate them." The latter is a
11             means to deliver the services, programs, and
12             activities of the hypothetical Parks
13             Department, but it is not itself a service,
14             program, or activity of the Parks Department.
15             Similarly, consider how a member of the
16             public would answer the question, "What are
17             the services, programs, and activities of the
18             Parks Department in which you want to
19             participate, or whose benefits you seek to
20             receive?" The individual might answer, "I
21             want to participate in the Wednesday night
22             basketball league, or find out about the free
23             children's programs for the summer months."
24             The individual would not logically answer, "I
25             want to go to work for the Parks Department."
26   Id.

27             The Zimmerman court concluded that "when viewed as a

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

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

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

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

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

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

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

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

36   ("Extensive legislative commentary regarding the applicability of

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



                                     46
 1   history] . . . is so pervasive as to belie any contention that

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

 3              In addition to cases following Zimmerman's analysis,

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

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

 6   U.S. 356 (2001):

 7              [N]o party has briefed the question of
 8              whether Title II of the ADA . . . is
 9              available for claims of employment
10              discrimination when Title I of the ADA
11              expressly deals with that subject. See,
12              e.g., Russello v. United States, 464 U.S. 16,
13              23 (1983) ("[W]here Congress includes
14              particular language in one section of a
15              statute but omits it in another section of
16              the same Act, it is generally presumed that
17              Congress acts intentionally and purposely in
18              the disparate inclusion or exclusion"
19              (internal quotation marks omitted)).
20
21   Id. at 360 n.1.     Like the district court here, other district

22   courts in this Circuit have cited this language before reaching

23   the conclusion that Title II does not apply to employee claims

24   against a public employer.    See Fleming v. State Univ. of N.Y.,

25   502 F. Supp. 2d 324, 332 (E.D.N.Y. 2007).

26   B.   Analysis

27              "[S]tatutory analysis necessarily begins with the plain

28   meaning of the law's text, and, absent ambiguity, will generally

29   end there."     Dobrova v. Holder, 607 F.3d 297, 301 (2d Cir. 2010)

30   (internal quotation marks omitted).    "'Because our task is to

31   ascertain Congress's intent, we look first to the text and

32   structure of the statute' as the surest guide to congressional

33   intent."   Trustees of Local 138 Pension Trust Fund v. F.W.

                                       47
 1   Honerkamp Co., 692 F.3d 127, 134(2d Cir. 2012) (quoting Lindsay

 2   v. Ass'n of Prof'l Flight Attendants, 581 F.3d 47, 52 (2d Cir.

 3   2009)).   We are persuaded primarily by the structure of the ADA,

 4   including differences between Title I and Title II, that Congress

 5   did not intend to extend Title II to employment discrimination

 6   claims, at least not those that are covered by Title I, see infra

 7   note 12 and accompanying text.   See Allard K. Lowenstein Intern.

 8   Human Rights Project v. Dep't of Homeland Sec., 626 F.3d 678, 681

 9   (2d Cir. 2010) ("Beginning, as we must, with the plain meaning of

10   the statute's text and structure, we see no ambiguity.").

11              The ADA is divided into five separate titles:     Title

12   I, "Employment"; Title II, "Public Services"; Title III, "Public

13   Accommodations"; Title IV, "Telecommunications"; and Title V,

14   "Miscellaneous Provisions."   Americans with Disabilities Act of

15   1990, Pub. L. No. 101-336, 104 Stat. 327, 327-28 (1990).    "'[T]he

16   title of a statute and the heading[s] of [its] section[s]' are

17   'tools available for the resolution of a doubt' about the meaning

18   of a statute."   Almendarez-Torres v. United States, 523 U.S. 224,

19   234 (1998) (quoting Trainmen v. Baltimore & Ohio R. Co., 331 U.S.

20   519, 528-29 (1947)).   As the Supreme Court indicated in dicta in

21   Garrett, the fact that "Title I of the ADA expressly deals with

22   th[e] subject" of employment discrimination, whereas Title II

23   "deal[s] with the 'services, programs, or activities of a public

24   entity,'" 531 U.S. at 360 n.1 (quoting 42 U.S.C. § 12132),

25   suggests that Congress did not intend Title II to reach

26   employment discrimination, see id. (citing Russello, 464 U.S. at

                                      48
 1   23 ("[W]here Congress includes particular language in one section

 2   of a statute but omits it in another section of the same Act, it

 3   is generally presumed that Congress acts intentionally and

 4   purposely in the disparate inclusion or exclusion" (internal

 5   quotation marks omitted))).    And reflecting Congress's decision

 6   to separate the ADA into distinct titles covering different kinds

 7   of discrimination, the Supreme Court has described the ADA as

 8   "forbid[ding] discrimination against persons with disabilities in

 9   three major areas of public life: employment, which is covered by

10   Title I of the statute; public services, programs, and

11   activities, which are the subject of Title II; and public

12   accommodations, which are covered by Title III."    Lane, 541 U.S.

13   at 516-17.

14                The division between Titles I and II is further

15   illustrated by their differing definitions of a "qualified

16   individual."    Title I's definition speaks in terms of employment:

17   "As used in [Title I,] . . . 'qualified individual' means an

18   individual who, with or without reasonable accommodation, can

19   perform the essential functions of the employment position that

20   such individual holds or desires."     42 U.S.C. § 12111(8).   But

21   Title II defines the same term instead as an individual who

22   "meets the essential eligibility requirements for the receipt of

23   services or the participation in programs or activities provided

24   by a public entity."    Id. § 12131(2).

25                Moreover, Title I prohibits discrimination by a

26   "covered entity," which it defines as, inter alia, "an employer,"

                                       49
 1   id. § 12111(2), whereas Title II prohibits discrimination by a

 2   "public entity," which it defines as, inter alia, "any State or

 3   local government [or agency thereof]," id. § 12131(1).    Thus,

 4   "Title II does not include any definition relevant to

 5   employ[ment], [by contrast with] Title I[]."   Cormier v. City of

 6   Meriden, No. 03 Cv. 1819, 2004 WL 2377079, at *4, 2004 U.S. Dist.

 7   LEXIS 21104, at *15 (D. Conn. Sept. 30, 2004).

 8             Also, Congress delegated the authority to promulgate

 9   regulations under the two titles to two different agencies.

10   Title I gives the Equal Employment Opportunity Commission the

11   authority to promulgate regulations interpreting that title.      42

12   U.S.C. § 12116.   But Title II entrusts the Attorney General with

13   that responsibility.   42 U.S.C. § 12134(a).   See also Zimmerman,

14   170 F.3d at 1178.   And the fact that Congress included no

15   direction that the two agencies work together to avoid imposing

16   inconsistent standards governing employment discrimination suits

17   suggests "that it did not intend for the Attorney General to have

18   any power over employment under Title II; it never envisioned

19   that there could be a conflict."     Id.

20             Title I also imposes various limitations on suits

21   against an employer which are absent from Title II.   While Title

22   I caps the amount of compensatory damages a plaintiff may recover

23   depending on the number of employees employed by the defendant

24   employer, 42 U.S.C. § 1981a(b)(3), and disallows punitive damages

25   in suits against governmental employers, id. § 1981a(b)(1),

26   "Title II has no such limitations," Cormier, 2004 WL 2377079, at

                                     50
1   *7, 2004 U.S. Dist. LEXIS 21104, at *26.   And although plaintiffs

2   filing suit under Title I must first exhaust administrative

3   remedies,10 it appears that those filing suit under Title II need

4   not do so, although we find a conclusion on the point unnecessary

5   to decide this case.11   It is an "elementary canon of


         10
           Title I incorporates the exhaustion requirement imposed
    by Title VII of the Civil Rights Act of 1964.
              ADA Title I incorporates various provisions
              from Title VII of the landmark Civil Rights
              Act of 1964. . . . One of these
              provisions . . . requires a claimant to file
              a charge of employment discrimination with
              the EEOC within 180 days after the
              discriminatory act. See [42 U.S.C.]
              § 2000e-5(e)(1).
    McInerney v. Rensselaer Polytechnic Inst., 505 F.3d 135, 138 (2d
    Cir. 2007).
         11
           Title II adopts the "remedies, procedures, and rights set
    forth" in the Rehabilitation Act at 29 U.S.C. § 794a. 42 U.S.C.
    § 12133. Courts have construed that section of the
    Rehabilitation Act as not imposing any exhaustion requirement as
    to claims against a recipient of federal funding, but as imposing
    one as to claims against a federal employer. See, e.g., Ryan v.
    Shawnee Mission Unified Sch. Dist. No. 512, 437 F. Supp. 2d 1233,
    1253–54 (D. Kansas 2006). But "Title II of the ADA is not
    applicable to the federal government," Cellular Phone Taskforce
    v. F.C.C., 217 F.3d 72, 73 (2d Cir. 2000), so it would appear
    that Title II only incorporates the Rehabilitation Act's
    procedures applicable to recipients of federal funding, and thus
    does not impose an exhaustion requirement. Other courts have
    concluded that Title II contains no exhaustion requirement. See
    Bledsoe, 133 F.3d at 824 ("[T]he regulations . . . plainly state
    that exhaustion is not required." (citing 28 C.F.R. § 35.172,
    Appendix A ("At any time, the complainant may file a private suit
    pursuant to section 203 of the Act, 42 U.S.C. [§] 12133, whether
    or not the designated agency finds a violation."))).
              In Tsombanidis v. West Haven Fire Dept., 352 F.3d 565
    (2d Cir. 2003), we strongly suggested that Title II does not
    impose an exhaustion requirement.
              It may be that once the governmental entity
              denies . . . an accommodation, [Title II of]
              the ADA [does not] require a plaintiff to
                                     51
 1   construction that a statute should be interpreted so as not to

 2   render one part inoperative."   Mountain States Tel. & Tel. Co. v.

 3   Pueblo of Santa Ana, 472 U.S. 237, 249 (1985), (quoting Colautti

 4   v. Franklin, 439 U.S. 379, 392 (1979)).   "[A]pplying Title II to

 5   public employees would nullify these statutory limits for a

 6   significant category of employment discrimination plaintiffs."

 7   Cormier, 2004 WL 2377079, at *7, 2004 U.S. Dist. LEXIS 21104, at

 8   *26.   As the Seventh Circuit put it in a similar context -- while

 9   analyzing the Rehabilitation Act -- "it would make no sense for

10   Congress to provide . . . different sets of remedies, having

11   different exhaustion requirements, for the same wrong committed

12   by the same employer."   McGuinness v. U.S. Postal Serv., 744 F.2d

13   1318, 1321 (7th Cir. 1984).


                exhaust the state or local administrative
                procedures. But a plaintiff must first use
                the procedures available to notify the
                governmental entity that it seeks an
                exception or variance from the facially
                neutral laws when pursuing a reasonable
                accommodation claim.

                . . . .

                This is not an exhaustion requirement but
                merely a requirement that plaintiffs first
                use the proper procedure to seek an exception
                or variance. If denied this request, they do
                not need to exhaust the administrative appeal
                process.

     Id. at 579 & n.8 (emphasis in original); see also Cormier, 2004
     WL 2377079, at *6, 2004 U.S. Dist. LEXIS 21104, at *22-*23 ("The
     Second Circuit has not decided the issue, but has suggested that
     Title II may not require exhaustion."). However, out of an
     abundance of caution, and because plaintiff does not argue
     otherwise, we assume for present purposes but do not decide that
     Title II imposes no exhaustion requirement.
                                     52
 1                "[W]e are required to disfavor interpretations of

 2   statutes that render language superfluous."    Conn. ex rel.

 3   Blumenthal v. U.S. Dep't of the Interior, 228 F.3d 82, 88 (2d

 4   Cir. 2000) (internal quotation marks omitted); see also Corley,

 5   556 U.S. at 314 ("[O]ne of the most basic interpretive canons[

 6   is] that a statute should be construed so that effect is given to

 7   all its provisions, so that no part will be inoperative or

 8   superfluous, void or insignificant." (internal quotation marks

 9   and alteration omitted)); Duncan, 533 U.S. at 174 (similar).      If

10   a public employee were able to bring a suit against her employer

11   for wrongful discrimination under both Title I and Title II,

12   Title I would apparently become superfluous in the context of a

13   suit against a public employer employing more than fifteen

14   persons –- compare 42 U.S.C. § 12111(5)(A) (Title I does not

15   apply to an employer with fewer than 15 employees), with 42

16   U.S.C. § 12131(1)(Title II applies to all municipal entities

17   regardless of size) -- which is a construction we find highly

18   doubtful.    Even the plaintiff here concedes nearly as much.    See

19   Pl.'s Reply Br. 24 ("[T]he proffered interpretation of Title II

20   does not render Title I entirely redundant.") (emphasis in

21   original).

22                Accordingly, we conclude that the statute unambiguously

23   limits employment discrimination claims to Title I.    A public

24   employee may not bring a Title II claim against his or her




                                       53
 1   employer, at least when the defendant employer employs fifteen or

 2   more employees.12

 3             The plaintiff argues that we, like the Bledsoe court,

 4   should consult Title II's legislative history.    But, having found

 5   the relevant provisions of the statute unambiguous, we do not

 6   have warrant to do so.   See, e.g., Dep't of Hous. & Urban Dev. v.

 7   Rucker, 535 U.S. 125, 132 (2002) ("[R]eference to legislative

 8   history is inappropriate when the text of a statute is

 9   unambiguous."); Ratzlaf v. United States, 510 U.S. 135, 147-48

10   (1994) ("[W]e do not resort to legislative history to cloud a

11   statutory text that is clear.").

12             The plaintiff also argues that deference is due to the

13   Attorney General's regulations implementing Title II, which

14   contemplate employment discrimination claims.    See 28 C.F.R. §

15   35.140(a) ("No qualified individual with a disability shall, on

16   the basis of disability, be subjected to discrimination in

17   employment under any service, program, or activity conducted by a

18   public entity.").   But the Supreme Court has directed that before

19   deferring to an agency's regulations, a court must first employ

20   "'traditional tools of statutory construction' to determine

21   whether Congress has expressed its intent unambiguously on the

22   question before the court."   Zimmerman, 170 F.3d at 1173 (quoting

23   Chevron, 467 U.S. at 843 n.9).     "If the intent of Congress is


          12
            We need not, and do not, decide here whether a Title II
     claim may be brought against a public employer employing fewer
     than fifteen employees inasmuch as the Library has represented
     that it has fifteen or more.
                                      54
 1   clear, that is the end of the matter; for the court, as well as

 2   the agency, must give effect to the unambiguously expressed

 3   intent of Congress."   Chevron, 467 U.S. at 842-43.    "The

 4   judiciary is the final authority on issues of statutory

 5   construction and must reject administrative constructions which

 6   are contrary to clear congressional intent."   Id. at 843 n.9.

 7   Because we conclude that the statute is unambiguous, we do not

 8   consider the Attorney General's regulations for this purpose.

 9             The plaintiff also argues that our prior statement in

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

11   37 (2d Cir. 1997), recognized as superseded on other grounds by

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

13   2001), that the word "discrimination" in Title II is a "catch-all

14   phrase that prohibits all discrimination by a public entity,

15   regardless of the context," id. at 45, establishes that we have

16   already decided that Title II applies to employment.    But, in

17   relevant part, Innovative only addressed (and rejected) White

18   Plains' argument that Title II did not apply to its zoning

19   decisions because "it contend[ed] that zoning does not constitute

20   a 'service, program, or activity.'"   Id. at 44.   The question of

21   whether Title II applies to employment discrimination was not

22   before the Court.

23             And this statement must be considered in context.

24   Title II provides that "no qualified individual with a disability

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

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

                                     55
 1   programs, or activities of a public entity, or be subjected to

 2   discrimination by any such entity."    42 U.S.C. § 12132.    The

 3   Innovative court first rejected White Plains' argument on the

 4   ground that the word "activity" in the above quoted statutory

 5   text was broad enough to encompass municipal zoning decisions.

 6   117 F.3d at 44.    This reasoning was sufficient to reject

 7   completely White Plains' argument, and would have been sufficient

 8   to decide the issue before the Court.    But the Innovative Court

 9   then offered an alternative rationale for rejecting White Plains'

10   argument: that the statutory language "or be subjected to

11   discrimination by any such entity," 42 U.S.C. § 12132, was a

12   "catch-all phrase that prohibits all discrimination by a public

13   entity, regardless of the context," 117 F.3d at 45.    In any

14   event, then, the statement in Innovative "was not essential to

15   the Court's holding because it was offered in the alternative[,]

16   and therefore it is [a] dictum that is not binding on us."

17   Willis Mgmt. (VT.), Ltd. v. United States, 652 F.3d 236, 243 (2d

18   Cir. 2011).

19                For the foregoing reasons, we affirm the district

20   court's dismissal of the plaintiff's Title II claims against the

21   Library.13


          13
            After dismissing the plaintiff's Title II claim against
     the Library, the district court observed that "Plaintiff does not
     seek leave to amend her complaint to assert a Title I ADA claim,
     nor refute the Library's contention that she cannot state a valid
     Title I ADA claim because she failed to exhaust her
     administrative remedies with respect to any such claim as
     required by 42 U.S.C. § 12117(a)." Mary Jo C., 2011 WL 1748572,
     at *12 n.11, 2011 U.S. Dist. LEXIS 49567, at *39 n.11. We do not
                                       56
 1                                CONCLUSION

 2             For the foregoing reasons, the district court's

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

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

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

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

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

 8   the rule of Ex parte Young, 209 U.S. 123 (1908), and for further

 9   proceedings consistent with this opinion.   The district court's

10   judgment of dismissal is affirmed as to the plaintiff's Title II

11   claim against the Library.   The district court's decision to

12   decline to exercise supplemental jurisdiction over the

13   plaintiff's state law claims is vacated for reconsideration

14   depending on the course of the further proceedings contemplated

15   by this opinion.

16             Costs of the plaintiff on appeal to be paid by NYSLRS

17   to the plaintiff; the Library shall bear its own costs.




     express or mean to imply any opinion on our part as to whether
     the plaintiff should be allowed to amend her claims against the
     Library on remand.
                                      57
