The Honorable Laura Taylor Swain, United States District Judge for the Southern… v. New York State

* The Honorable Laura Taylor Swain, United States District
Judge for the Southern District of New York, sitting by
designation.
11-2215
Mary Jo C. v. New York State and Local Retirement System et ano.
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2011 3
(Argued: May 3, 2012 Decided: January 29, 2013) 4
Docket No. 11-2215 5
------------------------------------- 6
MARY JO C., 7
Plaintiff-Appellant, 8
- v - 9
NEW YORK STATE AND LOCAL RETIREMENT SYSTEM, CENTRAL ISLIP PUBLIC 10
LIBRARY, 11
Defendants-Appellees. 12
------------------------------------- 13
Before: SACK, RAGGI, Circuit Judges, and SWAIN, District 14
Judge.*
15
16
Appeal by the plaintiff from a judgment of the United 17
States District Court for the Eastern District of New York 18
(Sandra J. Feuerstein, Judge) dismissing the plaintiff's claims 19
pursuant to Federal Rules of Civil Procedure 12(b)(1) and 20
12(b)(6). The district court concluded principally that Title II 21
of the Americans with Disabilities Act does not require state 22
actors to violate state laws as a "reasonable modification" under 23
the Act, and that Title II does not apply to employment 24

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2
discrimination. Because we conclude that Title II does, in some 1
circumstances, require reasonable departures from standards 2
established by state laws, we vacate the district court's 3
judgment of dismissal in that respect. Because we conclude, 4
based principally on the structure of the Americans with 5
Disabilities Act, that Title II does not apply to employment 6
discrimination, we affirm the district court's judgment of 7
dismissal of that claim. 8
Affirmed in part; vacated and remanded in part. 9
WILLIAM M. BROOKS, Mental Disability Law 10
Clinic, Touro College, Jacob D. 11
Fuchsberg Law Center, Central Islip, NY, 12
for Plaintiff-Appellant. 13
CECELIA C. CHANG, Deputy Solicitor 14
General, (Barbara D. Underwood, 15
Solicitor General, Laura R. Johnson, 16
Assistant Solicitor General, of counsel, 17
on the brief), for Eric T. Schneiderman, 18
Attorney General of the State of New 19
York, New York, NY, for Defendant- 20
Appellee New York State and Local 21
Retirement System. 22
LAURA L. SHOCKLEY, (William M. Savino, 23
Harris J. Zakarin, on the brief), Rivkin 24
Radler LLP, Uniondale, NY, for 25
Defendant-Appellee Central Islip Public 26
Library. 27
SASHA SAMBERG-CHAMPION, (Jessica Dunsay 28
Silver, on the brief), Department of 29
Justice, Civil Rights Division, 30
Appellate Section, for Thomas E. Perez, 31
Assistant Attorney General, Washington, 32
DC, for Amicus Curiae United States 33
Department of Justice. 34
Jo Anne Simon, Jo Anne Simon P.C., 35
Brooklyn, NY, for Amici Curiae 36
Disability Advocates, Inc., DRVT, 37
National Disability Rights Network, and 38

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3
State of Connecticut Office of 1
Protection and Advocacy for Persons with 2
Disabilities. 3
SACK, Circuit Judge: 4
The plaintiff alleges that her job as a librarian at 5
the Central Islip Public Library (the "Library") was terminated 6
because of behavior symptomatic of her chronic mental illness. 7
Although she alleges that she would have been eligible for 8
disability retirement benefits under New York State law, her 9
mental illness interfered with her ability to comply with New 10
York State law's strictly enforced filing deadline for those 11
benefits. When the New York State and Local Retirement System 12
(the "NYSLRS") rejected her request to waive the deadline, and 13
when the Library rejected her request to assist her in applying 14
or extending the deadline by reclassifying her termination as a 15
leave of absence, the plaintiff was denied those benefits. 16
Thereafter, the plaintiff instituted this lawsuit in 17
the United States District Court for the Eastern District of New 18
York against the NYSLRS and the Library alleging, inter alia, 19
that the defendants' actions violated Title II of the Americans 20
with Disabilities Act ("ADA"), Pub. L. No. 101-336, 104 Stat. 21
327, 327-28 (1990), 42 U.S.C. §§ 12131, et seq. The district 22
court (Sandra J. Feuerstein, Judge) granted the defendants' 23
motion to dismiss because the court concluded principally that 24
Title II of the Americans with Disabilities Act does not require 25
modifications of mandatory requirements imposed by state laws, 26
and that Title II does not apply to employment discrimination. 27

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4
For the reasons set forth below, the district court's 1
judgment of dismissal is vacated as to the plaintiff's Title II 2
claim against the NYSLRS. The case is remanded with instructions 3
to the district court to grant the plaintiff leave to amend her 4
complaint if she so wishes to allege facts supporting her claim 5
that she was disabled, and to attempt to state a claim invoking 6
the rule of Ex parte Young, 209 U.S. 123 (1908), and to conduct 7
further proceedings as warranted. The district court's judgment 8
of dismissal is affirmed as to the plaintiff's Title II claim 9
against the Library. The district court's decision to decline to 10
exercise supplemental jurisdiction over the plaintiff's state law 11
claims is vacated for reconsideration depending on the course of 12
the further proceedings contemplated by this opinion. 13
BACKGROUND 14
Because this is an appeal from the district court's 15
grant of the defendants' motion to dismiss, we state the facts as 16
drawn from the complaint of the plaintiff "Mary Jo C." -- 17
"accepting all well-pleaded allegations in the complaint as true 18
and drawing all reasonable inferences in the plaintiff's favor," 19
Bigio v. Coca–Cola Co., 675 F.3d 163, 169 (2d Cir. 2012) 20
(internal quotation marks and brackets omitted) –- and as drawn 21
from matters of which we may take judicial notice, see Tellabs, 22
Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) 23
("[C]ourts must consider the complaint in its entirety, as well 24
as other sources . . . , in particular, documents incorporated 25

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5
into the complaint by reference, and matters of which a court may 1
take judicial notice."); ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 2
493 F.3d 87, 98 (2d Cir. 2007) ("[W]e may consider . . . 3
documents possessed by or known to the plaintiff and upon which 4
it relied in bringing the suit."). 5
The plaintiff is a "57[-]year-old individual who has 6
suffered from mental illness since adolescence." Complaint ¶ 12, 7
Mary Jo C. v. New York State and Local Ret. Sys., No. 09 Cv. 5635 8
(E.D.N.Y. Dec. 23, 2009) ("Compl."). She was employed by various 9
Long Island libraries between 1986 and November 2006, becoming a 10
member of defendant NYSLRS in January 1988. Id. ¶¶ 13-14. While 11
working for the Library, her employment was terminated in 12
November 2006 "[a]s a result of behaviors that were symptomatic 13
of her mental illness." Id. ¶ 16. Her last day of work at the 14
Library was on or about November 12, 2006. Id. ¶ 17. After her 15
termination, "libraries in Suffolk County communicated among 16
themselves and agreed that [the plaintiff] should not be hired as 17
a librarian." Id. ¶ 40. The plaintiff asserts that because the 18
libraries "blackballed [her] from working in the public library 19
system in Suffolk County," "it is a virtual certainty that [she] 20
will never work again." Id. ¶¶ 40-41. 21
In some circumstances, New York provides disability 22
retirement benefits for members of the NYSLRS who are "physically 23
or mentally incapacitated for the performance of gainful 24
employment." See N.Y. Ret. and Soc. Sec. Law § 605(b)(1), 25

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6
(b)(3)(c). According to the Complaint, the plaintiff would have 1
been eligible for disability retirement benefits under New York 2
law had she filed an application with the NYSLRS within three 3
months of her last day of employment. Compl. ¶¶ 18-19. But she 4
"failed to recognize" the filing deadline "because of her mental 5
illness." Id. ¶ 20. 6
During the three-month period following her 7
termination, the plaintiff's brother spoke to an NYSLRS official, 8
who informed him that the Library could file an application on 9
the plaintiff's behalf. Id. ¶¶ 21-24. On or about February 11, 10
2007, the plaintiff's brother asked the Library to do so, but the 11
Library denied the request. Id. ¶¶ 25-26. The plaintiff's 12
brother then asked the Library to reclassify the plaintiff's 13
termination as an unpaid leave of absence, which would have 14
extended the time during which the plaintiff could file for 15
benefits, see N.Y. Ret. and Soc. Sec. Law § 605(b)(2), but the 16
Library refused to do that too. Compl. ¶¶ 27-29. 17
The plaintiff's condition improved in November 2007, 18
and she applied for disability retirement benefits. Id. ¶ 30. 19
The NYSLRS denied the application because it was not filed within 20
three months of the plaintiff's last day of work. Id. ¶ 31. On 21
or about July 23, 2008, the plaintiff requested that the NYSLRS 22
waive the filing deadline as an accommodation under the ADA. The 23
NYSLRS did not respond. Id. ¶¶ 32-33. 24

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7
While awaiting the NYSLRS's response, the plaintiff's 1
brother received notice that the plaintiff could appeal the 2
denial of her disability retirement benefits application, and the 3
plaintiff did so. Id. ¶¶ 34-35. The NYSLRS argued before the 4
hearing officer that state law prohibited it from waiving the 5
filing deadline for any reason. Id. ¶ 36. The hearing officer 6
agreed, denying the plaintiff's appeal because there was no 7
"provision for an extension of the filing deadline" under the 8
applicable state statutes and regulations. Id. ¶¶ 37-38. 9
Thereafter, on December 23, 2009, the plaintiff brought 10
the instant action in the United States District Court for the 11
Eastern District of New York against the NYSLRS and the Library. 12
The complaint alleges that (1) the NYSLRS violated the ADA by 13
failing to "provide a requested reasonable accommodation" by 14
waiving the filing deadline, (2) the Library violated the ADA and 15
New York Executive Law section 296 by failing to file an 16
application on the plaintiff's behalf, and (3) the Library 17
violated the ADA and New York Executive Law section 296 by 18
failing to reclassify the plaintiff's termination as a leave of 19
absence. Id. ¶¶ 43-52. The plaintiff requested various 20
declaratory judgments, an injunction requiring the NYSLRS to 21
waive the filing deadline (or, if the court determined that an 22
injunction was inappropriate under the ADA, damages), and 23
attorney's fees and costs. Id. at pp. 10-12. 24

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8
Both defendants moved to dismiss the complaint pursuant 1
to Rule 12(b)(6); the NYSLRS also moved to dismiss pursuant to 2
Rule 12(b)(1), asserting that the plaintiff lacked standing and 3
that New York's sovereign immunity barred the plaintiff's claims. 4
On May 5, 2011, the district court denied the NYSLRS's motion to 5
dismiss for lack of subject matter jurisdiction, concluding that 6
the plaintiff had standing to bring her claims. But the court 7
granted the NYSLRS's motion to dismiss because it concluded that 8
the plaintiff could not state a claim under Title II of the ADA, 9
and that the court therefore need not determine whether Congress 10
validly abrogated New York's sovereign immunity when it enacted 11
Title II. The court reasoned that (1) the filing deadline was an 12
essential eligibility requirement not subject to waiver under the 13
ADA, (2) the plaintiff's request for an accommodation was not 14
"reasonable" under the ADA because it would require the NYSLRS to 15
violate state law, and (3) the plaintiff did not allege facts 16
sufficiently plausible on their face to demonstrate, if proven, 17
that she was disabled within the meaning of Title II of the ADA. 18
Mary Jo C. v. New York State and Local Ret. Sys., 2011 WL 19
1748572, 2011 U.S. Dist. LEXIS 49567 (E.D.N.Y. May 5, 2011). As 20
for the Library's motion to dismiss, the court concluded that the 21
plaintiff's Title II claims against the library failed because 22
her exclusive remedy against the Library was a claim under Title 23
I of the ADA, id. at *12, 2011 U.S. Dist. LEXIS 49567, at *39, 24
further noting that the plaintiff did not refute the Library's 25

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9
contention that the plaintiff had not exhausted her 1
administrative remedies under Title I. id. at *12 n.11, 2011 U.S. 2
Dist. LEXIS 49567, at *39 n.11. The district court then declined 3
to exercise supplemental jurisdiction over the state-law claims, 4
and dismissed the complaint. 5
The plaintiff appeals. 6
DISCUSSION 7
"We review de novo a district court's dismissal of a 8
complaint under Rule 12(b)(6), accepting all of the complaint's 9
factual allegations as true and drawing all reasonable inferences 10
in the plaintiffs' favor." Forest Park Pictures v. Universal 11
Television Network, Inc., 683 F.3d 424, 429 (2d Cir. 2012) 12
(citing Interpharm, Inc. v. Wells Fargo Bank, Nat'l Ass'n, 655 13
F.3d 136, 141 (2d Cir. 2011)). The complaint must state a claim 14
that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 15
U.S. 544, 570 (2007). "A claim has facial plausibility when the 16
plaintiff pleads factual content that allows the court to draw 17
the reasonable inference that the defendant is liable for the 18
misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 19
(2009). "[A] dismissal pursuant to Rule 12(b)(6) is, at bottom, 20
a declaration that the plaintiff's complaint and incorporated 21
materials are insufficient as a matter of law to support a claim 22
upon which relief may be granted." Halebian v. Berv, 644 F.3d 23
122, 130-31 (2d Cir. 2011). 24

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10
I. ADA Title II Claims Against the NYSLRS 1
A. Sovereign Immunity 2
The NYSLRS moved to dismiss on the basis of New York 3
State's and the NYSLRS's sovereign immunity from suit. The 4
Eleventh Amendment to the United States Constitution provides 5
that "[t]he Judicial power of the United States shall not be 6
construed to extend to any suit in law or equity, commenced or 7
prosecuted against one of the United States by Citizens of 8
another State, or by Citizens or Subjects of any Foreign State." 9
U.S. CONST . amend. XI. The Eleventh Amendment has been 10
interpreted as also barring suits in federal court against a 11
state brought by that state's own citizens. See Woods v. Rondout 12
Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 13
2006). Although NYSLRS is not itself a state, "[t]he immunity 14
recognized by the Eleventh Amendment extends beyond the states 15
themselves to 'state agents and state instrumentalities' that 16
are, effectively, arms of a state." Id. (quoting Regents of the 17
Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997)). 18
"Congress may abrogate the states' Eleventh Amendment 19
immunity when acting pursuant to [Congressional] authority under 20
Section [five] of the Fourteenth Amendment." Id. (citing U.S. 21
CONST . amend. XIV, § 5; Tennessee v. Lane, 541 U.S. 509, 518 22
(2004)). Congress has purported to abrogate the states' 23
sovereign immunity from claims brought against them under Title 24
II of the ADA. See 42 U.S.C. § 12202. However, the validity of 25

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11
this abrogation depends on "whether Congress acted pursuant to a 1
valid grant of constitutional authority." Lane, 541 U.S. at 517 2
(internal quotation marks omitted). 3
In United States v. Georgia, 546 U.S. 151 (2006), the 4
Supreme Court established a three-step process for analyzing 5
whether Congress has validly abrogated a state's sovereign 6
immunity from suit in the context of a particular Title II claim: 7
[A court must] determine . . . , on a 8
claim-by-claim basis, (1) which aspects of 9
the State's alleged conduct violated Title 10
II; (2) to what extent such misconduct also 11
violated the Fourteenth Amendment; and (3) 12
insofar as such misconduct violated Title II 13
but did not violate the Fourteenth Amendment, 14
whether Congress's purported abrogation of 15
sovereign immunity as to that class of 16
conduct is nevertheless valid. 17
Id. at 159. Thus, if a plaintiff cannot state a Title II claim, 18
the court's sovereign immunity inquiry is at an end. See 19
Buchanan v. Maine, 469 F.3d 158, 172–73 (1st Cir. 2006) ("If the 20
State's conduct does not violate Title II, the court does not 21
proceed to the next step in the [United States v. Georgia] 22
analysis. The claim ends."). 23
B. The "Reasonable Modification" 24
Requirement of Title II of the ADA 25
"The ADA was passed by large majorities in both Houses 26
of Congress [in 1990] after decades of deliberation and 27
investigation into the need for comprehensive legislation to 28
address discrimination against persons with disabilities." Lane, 29
541 U.S. at 516. "Congress found that 'individuals with 30
disabilities continually encounter various forms of 31

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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
discrimination, including outright intentional exclusion, the 1
discriminatory effects of architectural, transportation, and 2
communication barriers, overprotective rules and policies, [and] 3
failure to make modifications to existing facilities and 4
practices . . . .'" Crowder v. Kitagawa, 81 F.3d 1480, 1483 (9th 5
Cir. 1996) (alteration in original) (quoting 42 U.S.C. § 6
12101(a)(5)). The ADA aims "to provide a clear and comprehensive 7
national mandate for the elimination of discrimination against 8
individuals with disabilities." 42 U.S.C. §§ 12101(b)(1). "It 9
forbids discrimination against persons with disabilities in three 10
major areas of public life: employment, which is covered by Title 11
I of the statute; public services, programs, and activities, 12
which are the subject of Title II; and public accommodations, 13
which are covered by Title III." Lane, 541 U.S. at 516-17. 14
"Title II of the ADA[,'Public Services,'] provides that 15
'no qualified individual with a disability shall, by reason of 16
such disability, be excluded from participation in or be denied 17
the benefits of the services, programs, or activities of a public 18
entity, [1] or be subjected to discrimination by any such entity.'" 19
United States v. Georgia, 546 U.S. at 153 (quoting 42 U.S.C. 20
§ 12132). The statute "require[s] that covered entities make 21
reasonable accommodations in order to provide qualified 22

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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
individuals with an equal opportunity to receive benefits from or 1
to participate in programs run by such entities." Tsombanidis v. 2
West Haven Fire Dep't, 352 F.3d 565, 573 (2d Cir. 2003) (internal 3
quotation marks omitted). 4
To prove a violation of Title II, a party 5
must therefore establish: (1) that he is a 6
"qualified individual" with a disability; (2) 7
that he was excluded from participation in a 8
public entity's services, programs or 9
activities or was otherwise discriminated 10
against by a public entity; and (3) that such 11
exclusion or discrimination was due to his 12
disability. 13
Hargrave v. Vermont, 340 F.3d 27, 34–35 (2d Cir. 2003). 14
A "'qualified individual with a disability'" 15
is defined as "an individual with a 16
disability who, with or without reasonable 17
modifications to rules, policies, or 18
practices, the removal of architectural, 19
communication, or transportation barriers, or 20
the provision of auxiliary aids and services, 21
meets the essential eligibility requirements 22
for the receipt of services or the 23
participation in programs or activities 24
provided by a public entity." 25
United States v. Georgia, 546 U.S. at 153-54 (quoting 42 U.S.C. 26
§ 12131(2)). "A public entity shall make reasonable 27
modifications in policies, practices, or procedures when the 28
modifications are necessary to avoid discrimination on the basis 29
of disability, unless the public entity can demonstrate that 30
making the modifications would fundamentally alter the nature of 31
the service, program, or activity." 28 C.F.R. § 35.130(b)(7). 2
32
"[A] defendant need not make an accommodation at all if the 33

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14
requested accommodation 'would fundamentally alter the nature of 1
the service, program, or activity.'" Powell v. National Bd. of 2
Medical Examiners, 364 F.3d 79, 88 (2d Cir. 2004) (quoting 28 3
C.F.R. § 35.130(b)(7)). 4
Typically, "the determination of whether a particular 5
modification is 'reasonable' involves a fact-specific, 6
case-by-case inquiry that considers, among other factors, the 7
effectiveness of the modification in light of the nature of the 8
disability in question and the cost to the organization that 9
would implement it." Staron v. McDonald's Corp., 51 F.3d 353, 10
356 (2d Cir. 1995) (applying same standard in Title III case as 11
under Title II, see infra note 6). It is a factual issue 12
"whether [a] plaintiff['s] proposed modifications . . . amount to 13
'reasonable modifications' which should be implemented, or 14
'fundamental alterations,' which the state may reject." Crowder, 15
81 F.3d at 1485. 16
C. The District Court's Decision as to Whether 17
the Plaintiff is a "Qualified Individual" 18
The district court began its analysis of whether the 19
plaintiff adequately alleged that she is a "qualified individual 20
with a disability" by observing that New York State courts have 21
interpreted a similar filing deadline provision as 22
a condition precedent to the ripening of any 23
rights" or entitlement to disability 24
benefits, and have [concluded] that the 25
statutory filing period may [not] be extended 26
or waived by the State agency, even where the 27
applicant claims that the disability giving 28
rise to his or her claim for disability 29
benefits also rendered him incapable of 30

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15
asserting his or her claim in a timely 1
manner. 2
Mary Jo C., 2011 WL 1748572, at *8, 2011 U.S. Dist. LEXIS 49567, 3
at *24-*25 (citations and parenthetical description of cited 4
cases omitted). Relying on our statement in Henrietta D. v. 5
Bloomberg, 331 F.3d 261 (2d Cir. 2003), that the ADA's "use of 6
the term 'qualified' suggests that [courts] must look not to the 7
administration of the program for which the plaintiff is 8
qualified, but rather its formal legal eligibility requirements," 9
id. at 277 (citing 42 U.S.C. §§ 12131–32), the court reasoned 10
that because the filing deadline is deemed a condition precedent 11
to eligibility under state law, the "plaintiff seeks a waiver of 12
an essential eligibility requirement for receipt of disability 13
benefits under [New York law], which the State courts have 14
determined the State defendant is without authority to grant." 15
Mary Jo C., 2011 WL 1748572, at *9, 2011 U.S. Dist. LEXIS 49567, 16
at *27. 17
The district court then concluded that, unlike 18
requiring "reasonable modification of the State defendant's own 19
rules, policies or practices over which it has discretion," 20
"[r]equiring the State defendant to violate state law is not a 21
reasonable accommodation as a matter of law." Id., 2011 U.S. 22
Dist. LEXIS 49567, at *27. For this proposition, the court 23
relied principally on Herschaft v. New York Board of Elections, 24
No. 00 CV 2748, 2001 WL 940923, 2001 U.S. Dist. LEXIS 11801 25
(E.D.N.Y. Aug. 13, 2001) (denominated "NOT FOR PUBLICATION"), 26

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16
aff'd on other grounds, 37 F. App'x 17 (2d Cir. 2002) (summary 1
order), in which the court rejected a pro se plaintiff's 2
requested modification of New York State's deadline for gathering 3
signatures for an election nominating petition. Id. at *1, 2001 4
U.S. Dist. LEXIS 11801, at *1. The Herschaft court opined, 5
without citation to authority, that 6
[A] two- to three-week extension[,] . . . 7
although not excessive in scope, is 8
unreasonable simply because it would require 9
the Board of Elections to violate a state 10
statute requiring that signatures for 11
independent nominating petitions be gathered 12
and submitted within a certain time 13
frame. . . . The Board of Elections has no 14
statutory authority to waive the requirement. 15
It is the Court's opinion that an 16
accommodation that would require a defendant 17
to violate an otherwise constitutional state 18
law is inherently unreasonable. 19
20
Id. at *6, 2001 U.S. Dist. LEXIS 11801, at *18-*19 (footnote 21
omitted). The district court also cited Aughe v. Shalala, 885 F. 22
Supp. 1428 (W.D. Wash. 1995), which reasoned that modification of 23
a federal statutory age requirement "would essentially rewrite 24
the statute, [so] it must be seen as a fundamental alteration in 25
the nature of the program," id. at 1432. 26
D. Analysis 27
1. Whether the Filing Deadline is an Essential 28
Eligibility Requirement. With respect to Title II's requirement 29
that a "qualified individual" meet the "essential eligibility 30
requirements" of a covered program, the district court apparently 31
concluded that so long as a mandatory eligibility requirement is 32
set by a state statute, it will be an "essential eligibility 33

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17
requirement," and any modification of it will work a "fundamental 1
alteration" of the program. On appeal, the NYSLRS argues that 2
"Title II does not require waiver of the essential eligibility 3
requirements for state programs or receipt of state benefits," 4
NYSLRS Br. 13-14, and construes our opinion in Henrietta D. as 5
deciding that "to state a reasonable modification claim under the 6
ADA, the plaintiff must meet the 'formal legal eligibility 7
requirements' for benefits or services," id. at 14 (quoting 8
Henrietta D., 331 F.3d at 277). 9
At the outset, we note that the portion of Henrietta D. 10
cited by the district court and by NYSLRS arose in an entirely 11
different setting from that presented by this case. There, the 12
state defendant argued that it should be permitted to rebut the 13
plaintiffs' prima facie Title II claim by showing that "the 14
plaintiffs are no less successful in gaining access to benefits 15
than the non-disabled. Such a showing would suggest an 16
alternative reason for the plaintiffs' low rate of obtaining 17
benefits: systemic problems that create obstacles to access for 18
everyone." Henrietta D., 331 F.3d at 277. The issue we 19
confronted was the meaning of the term "benefits" in the 20
statutory command that "no qualified individual with a disability 21
shall, by reason of such disability, be excluded from 22
participation in or be denied the benefits of the services, 23
programs, or activities of a public entity." 42 U.S.C. § 12132; 24
see 331 F.3d at 277. 25

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18
We concluded that the ADA "plainly define[s] benefits 1
by reference to a plaintiff's facial legal entitlements." 2
Henrietta D., 331 F.3d at 277. We reasoned further that "[t]he 3
statute's use of the term 'qualified' suggests that we must look 4
not to the administration of the program for which the plaintiff 5
is qualified, but rather its formal legal eligibility 6
requirements." Id. In context, these statements cannot properly 7
be read to define "essential eligibility requirements" as all 8
"formal legal eligibility requirements." That issue was not 9
before the Henrietta D. court. The only question there was 10
whether the term "benefits" referred to the public program as it 11
was in fact administered, or the program as it was intended to 12
operate by law. See id. Although it looked to the statute's use 13
of the term "qualified" and the regulations' use of the phrase 14
"essential eligibility requirements" in order to construe the 15
statutory term "benefits," id. at 277-78, the Henrietta D. Court 16
did not construe the phrase "essential eligibility requirement" 17
itself. We thus did not determine there that the phrase 18
"essential eligibility requirements" as it is used in 42 U.S.C. 19
§ 12131(2) necessarily means a program's "formal legal 20
eligibility requirements." Because Henrietta D. did not resolve 21
the issue before us, we must construe the relevant statutory 22
language in the first instance. 23
Of course, "[s]tatutory analysis necessarily begins 24
with the plain meaning of a law's text and, absent ambiguity, 25
will generally end there." Bustamante v. Napolitano, 582 F.3d 26

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19
403, 406 (2d Cir. 2009) (internal quotation marks omitted). At 1
the outset, then, we "review the statutory text, considering the 2
ordinary or natural meaning of the words chosen by Congress, as 3
well as the placement and purpose of those words in the statutory 4
scheme." United States v. Aguilar, 585 F.3d 652, 657 (2d Cir. 5
2009) (internal quotation marks omitted). Here, the relevant 6
text defines a qualified individual as 7
an individual with a disability who, with or 8
without reasonable modifications to rules, 9
policies, or practices, the removal of 10
architectural, communication, or 11
transportation barriers, or the provision of 12
auxiliary aids and services, meets the 13
essential eligibility requirements for the 14
receipt of services or the participation in 15
programs or activities provided by a public 16
entity. 17
42 U.S.C. § 12131(2) (emphases added). The text thus 18
distinguishes between two categories of requirements: (1) rules, 19
policies, or practices, which are subject to the requirement of 20
reasonable modification, and (2) essential eligibility 21
requirements, which are not. 22
The fact that Congress provided that "rules, policies, 23
or practices" would be subject to reasonable modification, and 24
contrasted this flexibility with the requirement that a qualified 25
individual meet the "essential eligibility requirements" of a 26
program within the same sentence suggests that Congress meant 27
these categories to have different meanings. "Generally, 28
identical words used in different parts of the same statute are 29
presumed to have the same meaning. But where, as here, Congress 30

-- 19 of 57 --

20
uses certain language in one part of the statute and different 1
language in another, the court assumes different meanings were 2
intended." Cruz-Miguel v. Holder, 650 F.3d 189, 196 (2d Cir. 3
2011) (citations and internal quotation marks omitted). 4
Courts have therefore reasoned that essential 5
eligibility requirements, unlike "rules, policies, [and] 6
practices," 42 U.S.C. § 12131(2), are not subject to reasonable 7
modification or waiver. See Pottgen v. Missouri State High 8
School Activities Ass'n, 40 F.3d 926, 930 (8th Cir. 1994) 9
(observing that when an individual cannot meet an eligibility 10
requirement determined to be essential, "the only possible 11
accommodation is to waive the essential requirement itself. . . . 12
[But] [w]aiving an essential eligibility standard would 13
constitute a fundamental alteration in the nature of the . . . 14
program [at issue].") (footnote omitted); cf. PGA Tour, Inc. v. 15
Martin, 532 U.S. 661, 689 (2001) ("[T]he waiver of an essential 16
rule of [a golf] competition for anyone [under Title III of the 17
ADA] would fundamentally alter the nature of [the] 18
tournaments."). 19
"[O]ne of the most basic interpretive canons[ is] that 20
a statute should be construed so that effect is given to all its 21
provisions, so that no part will be inoperative or superfluous, 22
void or insignificant." Corley v. United States, 556 U.S. 303, 23
314 (2009) (internal quotation marks and alteration omitted); see 24
also Duncan v. Walker, 533 U.S. 167, 174 (2001) ("It is our duty 25
to give effect, if possible, to every clause and word of a 26

-- 20 of 57 --

21
statute." (internal quotation marks omitted)). In light of the 1
fact that Congress used the phrases "rules, policies, and 2
practices" and "essential eligibility requirements" as two 3
distinct categories, the application of this canon of statutory 4
construction presents a fundamental obstacle to construing 5
"essential eligibility requirements" to mean all "formal legal 6
eligibility requirements," as the district court did and as the 7
NYSLRS would have us do too. 8
The statute uses the phrase "essential eligibility 9
requirements," not simply "eligibility requirements." Had 10
Congress intended "all formal legal eligibility requirements" to 11
be non-waivable, the phrase "eligibility requirements" would have 12
sufficed; it would have been unnecessary to use the phrase 13
"essential eligibility requirements." Title II applies to the 14
"services, programs, or activities of a public entity," 42 U.S.C. 15
§ 12132, which, being public, will typically define their 16
eligibility requirements wholly by applicable legal requirements. 17
That is the case here –- all the relevant eligibility 18
requirements for participation in the program are set by law. If 19
"essential eligibility requirements" meant "all formal legal 20
eligibility requirements," every eligibility requirement would be 21
"essential" and non-waivable, impermissibly rendering the word 22
"essential" superfluous. Therefore, the term "essential 23

-- 21 of 57 --

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
eligibility requirements" does not refer to all formal legal 1
eligibility requirements. 3
2
Cases interpreting the "essential eligibility 3
requirement" language indicate that whether an eligibility 4
requirement is essential is determined by consulting the 5
importance of the requirement to the program in question. See, 6

-- 22 of 57 --

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
e.g., Pottgen, 40 F.3d at 930 ("[T]o determine whether [the 1
plaintiff] is a 'qualified individual' under [Title II of] the 2
ADA, we must first determine whether the age limit is an 3
essential eligibility requirement by reviewing the importance of 4
the requirement to the interscholastic baseball program [at 5
issue]."); id. at 929 (deciding that high school baseball 6
program's age limit was essential because "[a]n age limit helps 7
reduce the competitive advantage flowing to teams using older 8
athletes; protects younger athletes from harm; discourages 9
student athletes from delaying their education to gain athletic 10
maturity; and prevents over-zealous coaches from engaging in 11
repeated red-shirting to gain a competitive advantage. These 12
purposes are of immense importance in any interscholastic sports 13
program."). 4
14

-- 23 of 57 --

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
This reading is reenforced by the regulations 1
implementing 5 the relevant section of the ADA, which require "[a] 2
public entity [to] make reasonable modifications in policies, 3
practices, or procedures when the modifications are necessary to 4
avoid discrimination on the basis of disability, unless the 5
public entity can demonstrate that making the modifications would 6
fundamentally alter the nature of the service, program, or 7
activity." 28 C.F.R. § 35.130(b)(7). The regulations indicate 8
that "essential eligibility requirements" are those requirements 9

-- 24 of 57 --

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
without which the "nature" of the program would be "fundamentally 1
alter[ed]." Id. These terms seem to us clearly to contemplate 2
that some relatively minor eligibility requirements, even if set 3
by statute, will not be deemed essential because they will not be 4
necessary to prevent the fundamental alteration of the program's 5
nature. 6
The Supreme Court's decision in PGA Tour, Inc. v. 7
Martin, 532 U.S. 661 (2001), further illustrates the point. The 8
plaintiff in Martin was a professional golfer with a disability 9
that prevented him from walking an 18-hole golf course. Id. at 10
668-69. He requested permission to use a golf-cart in 11
contravention of the PGA's rules as a reasonable accommodation 12
under Title III of the ADA, 6 and the PGA defended on the basis 13

-- 25 of 57 --

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
that allowing use of the golf-cart would work a fundamental 1
alteration in the nature of the tournament. Id. at 670-71. 2
The Court began its analysis by observing two ways in 3
which a modification of the PGA's rules might fundamentally alter 4
the tournament: 5
It might alter such an essential aspect of 6
the game of golf that it would be 7
unacceptable even if it affected all 8
competitors equally; changing the diameter of 9
the hole from three to six inches might be 10
such a modification. Alternatively, a less 11
significant change that has only a peripheral 12
impact on the game itself might nevertheless 13
give a disabled player, in addition to access 14
to the competition as required by Title III, 15
an advantage over others and, for that 16
reason, fundamentally alter the character of 17
the competition. 18
Id. at 682-83 (footnote omitted). 19
The Court reasoned that "the use of carts is not itself 20
inconsistent with the fundamental character of the game of golf" 21
because "the essence of the game [is] shotmaking –- using clubs 22
to cause a ball to progress from the teeing ground to a hole some 23
distance away with as few strokes as possible." Id. at 683. It 24

-- 26 of 57 --

27
therefore concluded that "the walking rule is at best peripheral 1
to the nature of [the PGA's] athletic events, and thus it might 2
be waived in individual cases without working a fundamental 3
alteration." Id. at 689; see also id. at 690 ("A modification 4
that provides an exception to a peripheral tournament rule 5
without impairing its purpose cannot be said to 'fundamentally 6
alter' the tournament."). The PGA's argument to the contrary 7
that "all the substantive rules for its . . . competitions are 8
sacrosanct and cannot be modified under any circumstances [was 9
for that reason] effectively a[n] [incorrect] contention that it 10
is exempt from Title III's reasonable modification requirement." 11
Id. at 689. But "Congress intended that an entity like the 12
PGA . . . carefully weigh the purpose, as well as the letter, of 13
the rule before determining that no accommodation would be 14
tolerable." Id. at 691. 15
Rather than simply deferring to the entity providing 16
the service in question, deeming the rules as set by that entity 17
as "sacrosanct," id. at 689, and construing any modification of 18
those rules as a fundamental alteration in the nature of the 19
service, the Martin Court undertook an independent analysis of 20
the importance of a rule for the service in light of the 21
service's purpose to determine whether a requested modification 22
would fundamentally alter its nature. Similarly here, we read 23
the ADA to require us to analyze the importance of an eligibility 24
requirement for a public program or benefit, rather than to defer 25
automatically to whatever "formal legal eligibility requirements" 26

-- 27 of 57 --

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
may exist, no matter how unimportant for the program in question 1
they may be. 7
2
And, perhaps most fundamentally, reading "essential 3
eligibility requirements" to mean all formal legal eligibility 4
requirements seems to us to run counter to the ADA's broad 5
remedial purpose by allowing states to insist that whatever legal 6
requirements they may set are never subject to reasonable 7
modification under Title II of the ADA. Were we to adopt such a 8
construction of the ADA, the class of "rules, policies, or 9
practices" subject to reasonable modification under Title II 10
would be vanishingly small, and nearly all eligibility 11
requirements for the receipt of public services would be non- 12
waivable "essential" eligibility requirements. 13
"In the ADA, Congress provided [a] broad mandate" to 14
"effectuate its sweeping purpose[ to] . . . forbid[] 15
discrimination against disabled individuals in major areas of 16
public life, [including] . . . public services . . . ." Id. at 17
675. "As a remedial statute, the ADA must be broadly construed 18
to effectuate its purpose of providing a clear and comprehensive 19
national mandate for the elimination of discrimination against 20
individuals with disabilities." Noel v. New York City Taxi and 21

-- 28 of 57 --

29
Limousine Comm'n, 687 F.3d 63, 68 (2d Cir. 2012) (internal 1
quotation marks omitted). To adopt the NYSLRS's construction 2
would be to render Title II effectively impotent, which would be 3
contrary to the broad remedial purpose of the ADA –- an act that 4
"has been described as 'a milestone on the path to a more decent, 5
tolerant, progressive society.'" Martin, 532 U.S. at 675 6
(quoting Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 7
356, 375 (2001) (Kennedy, J., concurring)). 8
Finally, here, as the plaintiff and the amici point 9
out, New York State already waives or extends the filing deadline 10
for disability retirement benefits for certain classes of 11
individuals: For example, an NYSLRS member on unpaid medical 12
leave may file an application within a year after termination of 13
employment, see N.Y. Ret. and Soc. Sec. Law § 605(b)(2), and an 14
NYSLRS member with "a qualifying World Trade Center condition" 15
faces no deadline whatsoever, see id. The fact that the State 16
itself waives the deadline in the enumerated circumstances 17
strongly suggests that the filing deadline is not "essential." 18
Cf. Martin, 532 U.S. at 685 ("[T]he walking rule is not an 19
indispensable feature of tournament golf either. [The PGA] 20
permits golf carts to be used [by non-disabled golfers] in 21
[several of its tournaments other than the one in question]."). 22
At this stage, it cannot be said as a matter of law that the 23
filing deadline is an essential eligibility requirement, and 24
therefore dismissal is inappropriate because it is not clear from 25
the face of the complaint that the plaintiff's allegations are 26

-- 29 of 57 --

30
"insufficient as a matter of law to support a claim upon which 1
relief may be granted." Halebian, 644 F.3d at 131. 2
As the plaintiff points out, "[t]his Court has not yet 3
established a broad rule defining when requirements imposed by a 4
state or local government constitute 'essential eligibility 5
requirements' of a program [so] as to render an individual 6
eligible for protection under Title II of the ADA." Pl.'s Reply 7
Br. 4. Cf. Parker v. Universidad de Puerto Rico, 225 F.3d 1, 4 8
(1st Cir. 2000) ("Although Title II of the ADA took effect on 9
January 26, 1992, [as of August 2000,] there [was] sparse 10
case[]law interpreting its scope and limits." (footnote 11
omitted)). But we need not do so today. In the posture of this 12
appeal, it is sufficient to conclude that the district court's 13
view that the ADA's reference to "essential eligibility 14
requirements" necessarily refers to each and every formal legal 15
eligibility requirement imposed for participation in a public 16
program or benefit is mistaken. In the context of a motion to 17
dismiss, we ask only whether the complaint states a claim that is 18
in this regard plausible on its face. Twombly, 550 U.S. at 570. 19
For the foregoing reasons, we conclude that it does. 20
2. Whether Waiving the Filing Deadline Would be a 21
Reasonable Modification. The district court also concluded that 22
"[r]equiring the State defendant to violate state law is not a 23
reasonable accommodation as a matter of law." Mary Jo C., 2011 24
WL 1748572, at *9, 2011 U.S. Dist. LEXIS 49567, at *27. The 25
court's construction of the term "reasonable modification" thus 26

-- 30 of 57 --

31
provided another ground upon which it granted the NYSLRS's motion 1
to dismiss. As a matter of both statutory construction and 2
federal preemption, we must inquire whether Congress, when it 3
enacted Title II's reasonable modification provision, intended to 4
require modification of state laws under certain circumstances, 5
thereby preempting them, or whether it instead intended the 6
reasonable modification provision to stop short of encroaching on 7
state laws. See, e.g., DiFiore v. American Airlines, Inc., 646 8
F.3d 81, 85 (1st Cir. 2011) ("[F]ederal preemption[] is a 9
question of statutory construction . . . ."). 10
Under the United States Constitution's Supremacy 11
Clause, the "Constitution, and the Laws of the United States 12
which shall be made in Pursuance thereof . . . shall be the 13
supreme Law of the Land; . . . any Thing in the Constitution or 14
Laws of any State to the Contrary notwithstanding." U.S. Const. 15
art. VI, cl. 2. "Under the doctrine of federal preemption, 16
'state laws that conflict with federal law are without effect.'" 17
Niagara Mohawk Power Corp. v. Hudson River-Black River Regulating 18
Dist., 673 F.3d 84, 94 (2d Cir. 2012) (quoting Altria Grp. Inc. 19
v. Good, 555 U.S. 70, 76, (2008)). "[T]he purpose of Congress is 20
the ultimate touchstone of pre-emption analysis." Cipollone v. 21
Liggett Grp., Inc., 505 U.S. 504, 516 (1992) (internal quotation 22
marks omitted). "Absent clear congressional intent to the 23
contrary, federal preemption of state law is not favored . . . ." 24
Marsh v. Rosenbloom, 499 F.3d 165, 177-78 (2d Cir. 2007). 25

-- 31 of 57 --

32
"Congress may manifest its intent to preempt 1
state or local law explicitly, through the 2
express language of a federal statute, or 3
implicitly, through the scope, structure, and 4
purpose of the federal law." [N.Y. SMSA Ltd. 5
P'ship v. Town of] Clarkstown, 612 F.3d [97, 6
104 (2d Cir. 2010)]. Thus, preemption "may 7
be either express or implied, and is 8
compelled whether Congress' command is 9
explicitly stated in the statute's language 10
or implicitly contained in its structure and 11
purpose." Shaw v. Delta Air Lines, Inc., 463 12
U.S. 85, 95 (1983) (internal quotation marks 13
omitted). 14
Niagara Mohawk Power Corp., 496 F.3d at 95. 15
"[T]he ADA does not contain an express preemption 16
provision . . . ." Rubietta v. National R.R. Passenger Corp., 17
No. 08 Civ. 7117, 2012 WL 345909, at *4, 2012 U.S. Dist. LEXIS 18
12047, at *10 (N.D. Ill. Jan 30, 2012). "Courts have recognized 19
two types of implied preemption: (1) field preemption, where 20
Congress has manifested an intent to 'occupy the field' in a 21
certain area . . . ; and (2) conflict preemption, where state law 22
'actually conflicts with federal law.'" Niagara Mohawk Power 23
Corp., 673 F.3d at 95 (quoting English v. Gen. Elec. Co., 496 24
U.S. 72, 79 (1990)). 25
"An actual conflict between state and federal law 26
exists when compliance with both federal and state regulations is 27
a physical impossibility, or when state law is an obstacle to the 28
accomplishment and execution of the full purposes and objectives 29
of Congress." Marsh, 499 F.3d at 177 (internal quotation marks 30
and citations omitted). An actual conflict also exists "where 31
federal law is in 'irreconcilable conflict' with state law." 32

-- 32 of 57 --

33
Levitin v. PaineWebber, Inc., 159 F.3d 698, 705 (2d. Cir. 1998) 1
(quoting Barnett Bank v. Nelson, 517 U.S. 25, 31 (1996)). 2
[W]hen the question is whether a Federal act 3
overrides a state law, the entire scheme of 4
the statute must of course be considered and 5
that which needs must be implied is of no 6
less force than that which is expressed. If 7
the purpose of the act cannot otherwise be 8
accomplished -- if its operation within its 9
chosen field else must be frustrated and its 10
provisions be refused their natural effect -- 11
the state law must yield to the regulation of 12
Congress within the sphere of its delegated 13
power. 14
Crosby v. National Foreign Trade Council, 530 U.S. 363, 373 15
(2000) (quoting Savage v. Jones, 225 U.S. 501, 533 (1912)). 16
"What is a sufficient obstacle is a matter of judgment, to be 17
informed by examining the federal statute as a whole and 18
identifying its purpose and intended effects." Id. 19
"Since preemption claims turn on Congress's intent, we 20
begin as we do in any exercise of statutory construction with the 21
text of the provision in question, and move on, as need be, to 22
the structure and purpose of the Act in which it occurs." 23
Metropolitan Taxicab Bd. of Trade v. City of New York, 615 F.3d 24
152, 156 (2d Cir. 2010) (quoting N.Y. State Conference of Blue 25
Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 26
655 (1995)) (brackets omitted). At the outset, we find nothing 27
in the statutory phrase "reasonable modification" to suggest that 28
Congress intended to exclude modifications that require violation 29
or waiver of mandatory state statutes in some circumstances. In 30
light of the broad scope and purpose of the ADA, we think it 31

-- 33 of 57 --

34
unlikely that Congress would have hidden such a significant 1
limitation in such an anodyne statutory phrase. When Congress 2
did restrict the scope of the ADA, it did so explicitly. See, 3
e.g., 42 U.S.C. §§ 12208, 12210 (explicitly excluding certain 4
individuals from the definition of "qualified individual with a 5
disability"); id. § 12111(5)(A) (excluding employers having fewer 6
than fifteen employees from the coverage of Title I). 7
As noted above, "[i]n the ADA, Congress provided [a] 8
broad mandate" to "effectuate its sweeping purpose[ to] . . . 9
forbid[] discrimination against disabled individuals in major 10
areas of public life, [including] . . . public services . . . ." 11
Martin, 532 U.S. at 675. "Congress found that 'individuals with 12
disabilities continually encounter various forms of 13
discrimination, including outright intentional exclusion, the 14
discriminatory effects of architectural, transportation, and 15
communication barriers, overprotective rules and policies, [and] 16
failure to make modifications to existing facilities and 17
practices . . . .'" Crowder, 81 F.3d at 1483 (alteration in 18
original) (quoting 42 U.S.C. § 12101(a)(5)). The ADA aims "to 19
provide a clear and comprehensive national mandate for the 20
elimination of discrimination against individuals with 21
disabilities." 42 U.S.C. § 12101(b)(1). Title II of the ADA 22
represents Congress's attempt to apply this "clear and 23
comprehensive national mandate" to the "services, programs, or 24
activities," 42 U.S.C. § 12132, of "'any State or local 25
government' and 'any department, agency, . . . or other 26

-- 34 of 57 --

35
instrumentality of a State,'" United States v. Georgia, 546 U.S. 1
at 154 (omission in original) (quoting 42 U.S.C. § 12131(1)). 2
And although Congress did not include an express preemption 3
provision, it did include a provision expressly abrogating the 4
sovereign immunity of the states. See 42 U.S.C. § 12202. 5
The "natural effect" of Title II's "reasonable 6
modification" requirement, Crosby, 530 U.S. at 373, in light of 7
the foregoing observations, requires preemption of inconsistent 8
state law when necessary to effectuate a required "reasonable 9
modification." Congress clearly meant Title II to sweep broadly. 10
If all state laws were insulated from Title II's reasonable 11
modification requirement solely because they were state laws, 12
"state law [would serve as] an obstacle to the accomplishment and 13
execution of the full purposes and objectives of Congress" in 14
enacting Title II. Marsh, 499 F.3d at 177. Far from 15
"provid[ing] a clear and comprehensive national mandate for the 16
elimination of discrimination against individuals with 17
disabilities," 42 U.S.C. § 12101(b)(1), the ADA would be 18
powerless to work any reasonable modification in any requirement 19
imposed by state law, no matter how trivial the requirement and 20
no matter how minimal the costs of doing so. We conclude that 21
the ADA's reasonable modification requirement contemplates 22
modification to state laws, thereby permitting preemption of 23

-- 35 of 57 --

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
inconsistent state laws, when necessary to effectuate Title II's 1
reasonable modification provision. 8
2
Our conclusion is further supported by Hargrave. 3
There, as we have discussed, we upheld an injunction of a 4
facially discriminatory Vermont statute. Vermont had argued that 5
in the context of the statute and implementing regulation 6
requiring states "to make 'reasonable modifications in policies 7
[or] practices' in order to avoid discrimination unless the 8
modifications would constitute a fundamental alteration to the 9
relevant 'service, program, or activity,'" Hargrave, 340 F.3d at 10
38 (quoting 28 C.F.R. § 35.130(b)(7)), enjoining the law would 11
fundamentally alter the program at issue. Rejecting this 12
argument and upholding the injunction, we spoke of the "ADA's 13
preemption of these statutory provisions." Id. at 38 n.10 14
(emphasis added). While the NYSLRS argues that Hargrave "did not 15
hold that Title II preempted facially nondiscriminatory state 16

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37
laws or mandated waiver of such laws," NYSLRS Br. at 21, it 1
provides no persuasive reason why, in light of the concerns 2
discussed above, Title II would preempt facially discriminatory 3
laws in pursuit of its broad purpose, but fail to preempt state 4
law when necessary to achieve a reasonable modification to 5
accomplish the same broad goals. 6
Last, we observe that the proposition that the ADA 7
preempts inconsistent state law when appropriate and necessary to 8
effectuate a reasonable accommodation under Title II is also 9
consistent with decisions from our sister Circuits. See, e.g., 10
Barber v. Colorado Dep't of Revenue, 562 F.3d 1222, 1232-33 (10th 11
Cir. 2009) (ultimately concluding that there was no conflict 12
between state law and the ADA in the case before it, but 13
observing that the court "in no way affirm[ed] the district 14
court's conclusion that '[a]n accommodation that would have 15
required defendants to willfully ignore or violate the law is per 16
se not reasonable.'" (citation omitted)); Quinones v. City of 17
Evanston, Ill., 58 F.3d 275, 277 (7th Cir. 1995) ("[The 18
defendant] believes that it is compelled to follow the directive 19
from the state, but the Supremacy Clause of the Constitution 20
requires a different order of priority. A discriminatory state 21
law is not a defense to liability under federal law; it is a 22
source of liability under federal law." (emphasis in original)); 23
Williams v. Gen. Foods Corp., 492 F.2d 399, 404 (7th Cir. 1974) 24
(similar). As the Ninth Circuit explained: 25

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38
The court's obligation under the ADA . . . is 1
to ensure that the decision reached by the 2
state authority is appropriate under the law 3
and in light of proposed alternatives. 4
Otherwise, any state could adopt requirements 5
imposing unreasonable obstacles to the 6
disabled, and when haled into court could 7
evade the antidiscrimination mandate of the 8
ADA merely by explaining that the state 9
authority considered possible modifications 10
and rejected them. 11
We are mindful of the general principle that 12
courts will not second-guess the public 13
health and safety decisions of state 14
legislatures acting within their traditional 15
police powers. However, [under federal] 16
antidiscrimination laws such as the ADA which 17
require reasonable modifications to public 18
health and safety policies, it is incumbent 19
upon the courts to insure that the mandate of 20
federal law is achieved. 21
Crowder, 81 F.3d at 1485 (citation omitted). 22
The NYSLRS argues that "Title II . . . requires 23
reasonable modification only of 'rules, policies, or practices' 24
–- not state statutes," NYSLRS Br. 19, and seeks to distinguish 25
Crowder, which contemplated the modification of a mandatory 26
Hawaii State administrative regulation rather than a state 27
statute, see Crowder, 81 F.3d at 1481-85, on this ground, NYSLRS 28
Br. 21 n.6. But as a general rule, duly promulgated state 29
regulations have the force of law for these purposes as do 30
statutes. See, e.g., State v. Kotis, 91 Hawai'i 319, 331, 984 31
P.2d 78, 90 (1999) (Under Hawaii law, "[a]dministrative rules, 32
like statutes, have the force and effect of law."); Allstate Ins. 33
Co. v. Rivera, 12 N.Y.3d 602, 608, 911 N.E.2d 817, 820, 883 34
N.Y.S.2d 755, 758 (2009) (under New York law, "[a] duly 35

-- 38 of 57 --

39
promulgated regulation . . . has the force of law." (internal 1
quotation marks omitted)). From the standpoint of the ADA's 2
preemptive force, we can discern no reason to distinguish between 3
the preemption of state statutes and state regulations. Cf. 4
Crosby, 530 U.S. at 372 n.6 (noting that "a variety of state laws 5
and regulations may conflict with a federal statute" and be 6
preempted). And for the reasons discussed above, we do not read 7
the ADA to prohibit reasonable modifications to state statutes 8
when appropriate. 9
We have examined NYSLRS's other arguments regarding 10
Title II and find them unpersuasive. 11
We therefore conclude that the district court erred in 12
dismissing the plaintiff's Title II claim against the NYSLRS on 13
the ground that "[r]equiring the State defendant to violate state 14
law is not a reasonable accommodation as a matter of law." Mary 15
Jo C., 2011 WL 1748572, at *9, U.S. Dist. LEXIS 49567, at *27. 16
Because "the determination of what constitutes reasonable 17
modification is [a] highly fact-specific, . . . case-by-case 18
inquiry," "[w]hether the plaintiff['s] proposed alternative" to 19
New York's filing deadline "constitute[s] [a] reasonable 20
modification[] or [a] fundamental alteration[] cannot be 21
determined as a matter of law on the record before us." Crowder, 22
81 F.3d at 1485; see also McGary v. City of Portland, 386 F.3d 23
1259, 1270 (9th Cir. 2004) ("[T]he question of what constitutes a 24
reasonable accommodation under the ADA 'requires a fact-specific, 25
individualized analysis of the disabled individual's 26

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40
circumstances and the accommodations that might allow him to meet 1
the program's standards.'" (quoting Wong v. Regents of Univ. of 2
Cal., 192 F.3d 807, 818 (9th Cir. 1999)). 3
E. The District Court's Decision as to Whether the 4
Plaintiff Adequately Alleged that She is Disabled 5
Again: Title II of the ADA provides that "no qualified 6
individual with a disability shall, by reason of such disability, 7
be excluded from participation in or be denied the benefits of 8
the services, programs, or activities of a public entity, or be 9
subjected to discrimination by any such entity." 42 U.S.C. 10
§ 12132 (emphasis added). A "disability" is defined as "(A) a 11
physical or mental impairment that substantially limits one or 12
more major life activities of such individual; (B) a record of 13
such an impairment; or (C) being regarded as having such an 14
impairment . . . ." 42 U.S.C. § 12102(1). "Major life 15
activities" are further defined to include "caring for oneself, 16
performing manual tasks, seeing, hearing, eating, sleeping, 17
walking, standing, lifting, bending, speaking, breathing, 18
learning, reading, concentrating, thinking, communicating, and 19
working." 42 U.S.C. § 12102(2). 20
Although neither defendant argued to the district court 21
that the plaintiff had failed to plead adequately that she was 22
"disabled" within the meaning of the ADA, the district court 23
considered the issue sua sponte. It concluded: 24
The complaint does not sufficiently allege 25
that plaintiff has a "disability" within the 26
meaning of the ADA. Although plaintiff 27
alleges that she has suffered from an 28

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41
unidentified mental illness since 1
adolescence, she does not allege any 2
additional facts plausibly suggesting that 3
such mental illness substantially limited one 4
or more of her major life activities. 5
Accordingly, plaintiff's complaint does not 6
state a cognizable claim under Title II of 7
the ADA. See, e.g., Tylicki v. St. Onge, 297 8
F. App'x 65, 67 (2d Cir. Oct. 28, 2008) 9
(finding that the plaintiff's complaint did 10
not adequately plead a disability under Title 11
II of the ADA where it contained no 12
allegations describing how his supposed 13
mental condition substantially limited a 14
major life activity). 15
Mary Jo C., 2011 WL 1748572, at *7, 2011 U.S. Dist. LEXIS 49567, 16
at *21. 17
Although the district court noted that it "would be 18
possible for plaintiff to amend her Title II claims to 19
sufficiently plead this element as against the Library unless 20
those claims would otherwise be futile," id. at *10 n.7, 2011 21
U.S. Dist. LEXIS 49567, at *33 n.7, it did not afford the 22
plaintiff this opportunity because it concluded that all of the 23
plaintiff's claims against both defendants were barred on other 24
sufficient, independent grounds. 25
On appeal, the plaintiff submits that "the failure to 26
provide her with an opportunity to present evidence of disability 27
can be cured by the usual practice of this Court to grant a party 28
leave to amend the complaint on a Rule 12(b)(6) motion." Pl.'s 29
Br. 17 (citing Bellikoff v. Eaton Vance Corp., 481 F.3d 110, 118 30
(2d Cir. 2007) ("[W]hen a motion to dismiss is granted, the usual 31
practice is to grant leave to amend the complaint." (internal 32
quotation marks omitted))). 33

-- 41 of 57 --

42
Inasmuch as the district court thought that it "would 1
be possible" for the plaintiff to amend her allegations regarding 2
her disability such that at least some claims could go forward, 3
Mary Jo C., 2011 WL 1748572, at *10 n.7, 2011 U.S. Dist. LEXIS 4
49567, at *33 n.7, in light of the fact that the plaintiff has 5
now requested leave to amend on appeal, and since our decision 6
today removes the futility the district court saw in allowing the 7
plaintiff to amend her complaint (at least as to claims against 8
the NYSLRS), we decline to pass on the sufficiency of the 9
plaintiff's allegations of disability on appeal. Instead, we 10
vacate the district court's decision in this regard, and remand 11
with instructions to grant the plaintiff's motion for leave to 12
amend her complaint to plead adequate allegations of disability 13
if such a motion is made. 14
F. Title II's Abrogation of Sovereign Immunity 15
NYSLRS argues that even if the plaintiff can state a 16
claim against it under Title II, Title II "fails to validly 17
abrogate the State's sovereign immunity for the reasonable 18
modification claim made here." NYSLRS Br. 22. The plaintiff 19
responds that, "[a]s appellant Mary Jo C. seeks injunctive relief 20
in connection with her claim against NYSLRS, this Court can avoid 21
adjudication of the Eleventh Amendment issue by permitting the 22
appellant to amend her complaint to" name a state official in his 23
official capacity as a defendant. Pl.'s Reply Br. 13. 24
"Under the well-known exception to [the Eleventh 25
Amendment's grant of sovereign immunity from suit] first set 26

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43
forth in Ex parte Young, 209 U.S. 123 (1908), . . . 'a plaintiff 1
may sue a state official acting in his official capacity -- 2
notwithstanding the Eleventh Amendment -- for prospective, 3
injunctive relief from violations of federal law.'" State 4
Employees Bargaining Agent Coalition v. Rowland, 494 F.3d 71, 95 5
(2d Cir. 2007) (quoting In re Deposit Ins. Agency, 482 F.3d 612, 6
617 (2d Cir. 2007)); see also Harris v. Mills, 572 F.3d 66, 72 7
(2d Cir. 2009) (similar). 8
Because of our well-settled policy of avoiding the 9
unnecessary adjudication of constitutional issues, see generally 10
Horne v. Coughlin, 191 F.3d 244, 246 (2d Cir.), cert. denied, 528 11
U.S. 1052 (1999), and because the NYSLRS concedes that the 12
"plaintiff could potentially seek injunctive relief from the 13
State Comptroller under Ex parte Young," NYSLRS Supp. Br. 17, we 14
decline to address the constitutionality of Title II's abrogation 15
of the State's sovereign immunity, and remand with instructions 16
to the district court to allow the plaintiff leave to amend her 17
complaint in an attempt to invoke the doctrine of Ex parte Young. 18
II. Title II Claim Against the Library 19
A. The District Court's Decision 20
The plaintiff also asserted a claim against the Library 21
alleging that its failure to file an application on her behalf or 22
to reclassify her termination as an unpaid leave of absence 23
violated Title II of the ADA. As noted, the ADA "forbids 24
discrimination against persons with disabilities in three major 25
areas of public life: employment, which is covered by Title I of 26

-- 43 of 57 --

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
the statute; public services, programs, and activities, which are 1
the subject of Title II; and public accommodations, which are 2
covered by Title III." Lane, 541 U.S. at 516-17. The district 3
court dismissed this claim because it concluded that the 4
plaintiff, an employee of the Library, could bring a claim 5
against her employer under Title I of the ADA but not under Title 6
II. 7
Title I of the ADA, "employment," provides in pertinent 8
part that "[n]o covered entity shall discriminate against a 9
qualified individual on the basis of disability in regard to job 10
application procedures, the hiring, advancement, or discharge of 11
employees, employee compensation, job training, and other terms, 12
conditions, and privileges of employment." 42 U.S.C. § 12112(a). 13
Title I applies to government employers, which are "covered 14
entities." 9
15
Noting that the "Supreme Court" and "the Second Circuit 16
ha[ve] not expressly considered th[e] issue" of whether Title II 17
applies to employment discrimination, Mary Jo C., 2011 WL 18
1748572, at *11-*12, 2011 U.S. Dist. LEXIS 49567, at *36, and 19

-- 44 of 57 --

45
acknowledging that "courts are split" on the issue, id. at *11, 1
2011 U.S. Dist. LEXIS 49567, at *35, the district court followed 2
what it described as the "well-reasoned decisions of the most 3
recent district court cases in this Circuit," to conclude that 4
"Title I of the ADA is the exclusive remedy for plaintiff's 5
claims of discrimination against the Library, all of which relate 6
to the 'terms, conditions, and privileges of [her] employment' 7
with that entity," id. at *12, 2011 U.S. Dist. LEXIS 49567, at 8
*39 (alteration in original) (quoting 42 U.S.C. § 12112(a)). 9
The district court also cited Zimmerman v. Oregon Dep't 10
of Justice, 170 F.3d 1169 (9th Cir. 1999), as the leading case 11
concluding that public employees' exclusive remedy against their 12
employers under the ADA is Title I. Zimmerman concluded that 13
"Congress unambiguously expressed its intent for Title II not to 14
apply to employment." Id. at 1173. It reasoned that a "common 15
understanding" of the term "services, programs, or activities" in 16
Title II's command that "no qualified individual with a 17
disability shall, by reason of such disability, be excluded from 18
participation in or be denied the benefits of the services, 19
programs, or activities of a public entity," referred "only to 20
the 'outputs' of a public agency, not to 'inputs' such as 21
employment." Id. at 1174. 22
First, employment by a public entity is not 23
commonly thought of as a "service, program, 24
or activity of a public entity." Second, the 25
"action" words in the sentence presuppose 26
that the public entity provides an output 27
that is generally available, and that an 28

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46
individual seeks to participate in or receive 1
the benefit of such an output. 2
Consider, for example, how a Parks Department 3
would answer the question, "What are the 4
services, programs, and activities of the 5
Parks Department?" It might answer, "We 6
operate a swimming pool; we lead nature 7
walks; we maintain playgrounds." It would 8
not answer, "We buy lawnmowers and hire 9
people to operate them." The latter is a 10
means to deliver the services, programs, and 11
activities of the hypothetical Parks 12
Department, but it is not itself a service, 13
program, or activity of the Parks Department. 14
Similarly, consider how a member of the 15
public would answer the question, "What are 16
the services, programs, and activities of the 17
Parks Department in which you want to 18
participate, or whose benefits you seek to 19
receive?" The individual might answer, "I 20
want to participate in the Wednesday night 21
basketball league, or find out about the free 22
children's programs for the summer months." 23
The individual would not logically answer, "I 24
want to go to work for the Parks Department." 25
Id. 26
The Zimmerman court concluded that "when viewed as a 27
whole, the text, context and structure of the ADA show 28
unambiguously that Congress did not intend for Title II to apply 29
to employment. Under these circumstances, we do not resort to 30
legislative history, and we do not defer to the Attorney 31
General's regulation," id. at 1178, which provides that Title II 32
does apply to employment actions against public employers, see 28 33
C.F.R. § 35.140(a). Contra Bledsoe v. Palm Beach County Soil & 34
Water Conservation Dist., 133 F.3d 816, 821 (11th Cir. 1998) 35
("Extensive legislative commentary regarding the applicability of 36
Title II to employment discrimination [in the ADA's legislative 37

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47
history] . . . is so pervasive as to belie any contention that 1
Title II does not apply to employment actions.") 2
In addition to cases following Zimmerman's analysis, 3
the district court noted dicta from the Supreme Court's decision 4
in Board of Trustees of University of Alabama v. Garrett, 531 5
U.S. 356 (2001): 6
[N]o party has briefed the question of 7
whether Title II of the ADA . . . is 8
available for claims of employment 9
discrimination when Title I of the ADA 10
expressly deals with that subject. See, 11
e.g., Russello v. United States, 464 U.S. 16, 12
23 (1983) ("[W]here Congress includes 13
particular language in one section of a 14
statute but omits it in another section of 15
the same Act, it is generally presumed that 16
Congress acts intentionally and purposely in 17
the disparate inclusion or exclusion" 18
(internal quotation marks omitted)). 19
20
Id. at 360 n.1. Like the district court here, other district 21
courts in this Circuit have cited this language before reaching 22
the conclusion that Title II does not apply to employee claims 23
against a public employer. See Fleming v. State Univ. of N.Y., 24
502 F. Supp. 2d 324, 332 (E.D.N.Y. 2007). 25
B. Analysis 26
"[S]tatutory analysis necessarily begins with the plain 27
meaning of the law's text, and, absent ambiguity, will generally 28
end there." Dobrova v. Holder, 607 F.3d 297, 301 (2d Cir. 2010) 29
(internal quotation marks omitted). "'Because our task is to 30
ascertain Congress's intent, we look first to the text and 31
structure of the statute' as the surest guide to congressional 32
intent." Trustees of Local 138 Pension Trust Fund v. F.W. 33

-- 47 of 57 --

48
Honerkamp Co., 692 F.3d 127, 134(2d Cir. 2012) (quoting Lindsay 1
v. Ass'n of Prof'l Flight Attendants, 581 F.3d 47, 52 (2d Cir. 2
2009)). We are persuaded primarily by the structure of the ADA, 3
including differences between Title I and Title II, that Congress 4
did not intend to extend Title II to employment discrimination 5
claims, at least not those that are covered by Title I, see infra 6
note 12 and accompanying text. See Allard K. Lowenstein Intern. 7
Human Rights Project v. Dep't of Homeland Sec., 626 F.3d 678, 681 8
(2d Cir. 2010) ("Beginning, as we must, with the plain meaning of 9
the statute's text and structure, we see no ambiguity."). 10
The ADA is divided into five separate titles: Title 11
I, "Employment"; Title II, "Public Services"; Title III, "Public 12
Accommodations"; Title IV, "Telecommunications"; and Title V, 13
"Miscellaneous Provisions." Americans with Disabilities Act of 14
1990, Pub. L. No. 101-336, 104 Stat. 327, 327-28 (1990). "'[T]he 15
title of a statute and the heading[s] of [its] section[s]' are 16
'tools available for the resolution of a doubt' about the meaning 17
of a statute." Almendarez-Torres v. United States, 523 U.S. 224, 18
234 (1998) (quoting Trainmen v. Baltimore & Ohio R. Co., 331 U.S. 19
519, 528-29 (1947)). As the Supreme Court indicated in dicta in 20
Garrett, the fact that "Title I of the ADA expressly deals with 21
th[e] subject" of employment discrimination, whereas Title II 22
"deal[s] with the 'services, programs, or activities of a public 23
entity,'" 531 U.S. at 360 n.1 (quoting 42 U.S.C. § 12132), 24
suggests that Congress did not intend Title II to reach 25
employment discrimination, see id. (citing Russello, 464 U.S. at 26

-- 48 of 57 --

49
23 ("[W]here Congress includes particular language in one section 1
of a statute but omits it in another section of the same Act, it 2
is generally presumed that Congress acts intentionally and 3
purposely in the disparate inclusion or exclusion" (internal 4
quotation marks omitted))). And reflecting Congress's decision 5
to separate the ADA into distinct titles covering different kinds 6
of discrimination, the Supreme Court has described the ADA as 7
"forbid[ding] discrimination against persons with disabilities in 8
three major areas of public life: employment, which is covered by 9
Title I of the statute; public services, programs, and 10
activities, which are the subject of Title II; and public 11
accommodations, which are covered by Title III." Lane, 541 U.S. 12
at 516-17. 13
The division between Titles I and II is further 14
illustrated by their differing definitions of a "qualified 15
individual." Title I's definition speaks in terms of employment: 16
"As used in [Title I,] . . . 'qualified individual' means an 17
individual who, with or without reasonable accommodation, can 18
perform the essential functions of the employment position that 19
such individual holds or desires." 42 U.S.C. § 12111(8). But 20
Title II defines the same term instead as an individual who 21
"meets the essential eligibility requirements for the receipt of 22
services or the participation in programs or activities provided 23
by a public entity." Id. § 12131(2). 24
Moreover, Title I prohibits discrimination by a 25
"covered entity," which it defines as, inter alia, "an employer," 26

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50
id. § 12111(2), whereas Title II prohibits discrimination by a 1
"public entity," which it defines as, inter alia, "any State or 2
local government [or agency thereof]," id. § 12131(1). Thus, 3
"Title II does not include any definition relevant to 4
employ[ment], [by contrast with] Title I[]." Cormier v. City of 5
Meriden, No. 03 Cv. 1819, 2004 WL 2377079, at *4, 2004 U.S. Dist. 6
LEXIS 21104, at *15 (D. Conn. Sept. 30, 2004). 7
Also, Congress delegated the authority to promulgate 8
regulations under the two titles to two different agencies. 9
Title I gives the Equal Employment Opportunity Commission the 10
authority to promulgate regulations interpreting that title. 42 11
U.S.C. § 12116. But Title II entrusts the Attorney General with 12
that responsibility. 42 U.S.C. § 12134(a). See also Zimmerman, 13
170 F.3d at 1178. And the fact that Congress included no 14
direction that the two agencies work together to avoid imposing 15
inconsistent standards governing employment discrimination suits 16
suggests "that it did not intend for the Attorney General to have 17
any power over employment under Title II; it never envisioned 18
that there could be a conflict." Id. 19
Title I also imposes various limitations on suits 20
against an employer which are absent from Title II. While Title 21
I caps the amount of compensatory damages a plaintiff may recover 22
depending on the number of employees employed by the defendant 23
employer, 42 U.S.C. § 1981a(b)(3), and disallows punitive damages 24
in suits against governmental employers, id. § 1981a(b)(1), 25
"Title II has no such limitations," Cormier, 2004 WL 2377079, at 26

-- 50 of 57 --

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
*7, 2004 U.S. Dist. LEXIS 21104, at *26. And although plaintiffs 1
filing suit under Title I must first exhaust administrative 2
remedies, 10 it appears that those filing suit under Title II need 3
not do so, although we find a conclusion on the point unnecessary 4
to decide this case. 11 It is an "elementary canon of 5

-- 51 of 57 --

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
construction that a statute should be interpreted so as not to 1
render one part inoperative." Mountain States Tel. & Tel. Co. v. 2
Pueblo of Santa Ana, 472 U.S. 237, 249 (1985), (quoting Colautti 3
v. Franklin, 439 U.S. 379, 392 (1979)). "[A]pplying Title II to 4
public employees would nullify these statutory limits for a 5
significant category of employment discrimination plaintiffs." 6
Cormier, 2004 WL 2377079, at *7, 2004 U.S. Dist. LEXIS 21104, at 7
*26. As the Seventh Circuit put it in a similar context -- while 8
analyzing the Rehabilitation Act -- "it would make no sense for 9
Congress to provide . . . different sets of remedies, having 10
different exhaustion requirements, for the same wrong committed 11
by the same employer." McGuinness v. U.S. Postal Serv., 744 F.2d 12
1318, 1321 (7th Cir. 1984). 13

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53
"[W]e are required to disfavor interpretations of 1
statutes that render language superfluous." Conn. ex rel. 2
Blumenthal v. U.S. Dep't of the Interior, 228 F.3d 82, 88 (2d 3
Cir. 2000) (internal quotation marks omitted); see also Corley, 4
556 U.S. at 314 ("[O]ne of the most basic interpretive canons[ 5
is] that a statute should be construed so that effect is given to 6
all its provisions, so that no part will be inoperative or 7
superfluous, void or insignificant." (internal quotation marks 8
and alteration omitted)); Duncan, 533 U.S. at 174 (similar). If 9
a public employee were able to bring a suit against her employer 10
for wrongful discrimination under both Title I and Title II, 11
Title I would apparently become superfluous in the context of a 12
suit against a public employer employing more than fifteen 13
persons –- compare 42 U.S.C. § 12111(5)(A) (Title I does not 14
apply to an employer with fewer than 15 employees), with 42 15
U.S.C. § 12131(1)(Title II applies to all municipal entities 16
regardless of size) -- which is a construction we find highly 17
doubtful. Even the plaintiff here concedes nearly as much. See 18
Pl.'s Reply Br. 24 ("[T]he proffered interpretation of Title II 19
does not render Title I entirely redundant.") (emphasis in 20
original). 21
Accordingly, we conclude that the statute unambiguously 22
limits employment discrimination claims to Title I. A public 23
employee may not bring a Title II claim against his or her 24

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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
employer, at least when the defendant employer employs fifteen or 1
more employees. 12
2
The plaintiff argues that we, like the Bledsoe court, 3
should consult Title II's legislative history. But, having found 4
the relevant provisions of the statute unambiguous, we do not 5
have warrant to do so. See, e.g., Dep't of Hous. & Urban Dev. v. 6
Rucker, 535 U.S. 125, 132 (2002) ("[R]eference to legislative 7
history is inappropriate when the text of a statute is 8
unambiguous."); Ratzlaf v. United States, 510 U.S. 135, 147-48 9
(1994) ("[W]e do not resort to legislative history to cloud a 10
statutory text that is clear."). 11
The plaintiff also argues that deference is due to the 12
Attorney General's regulations implementing Title II, which 13
contemplate employment discrimination claims. See 28 C.F.R. § 14
35.140(a) ("No qualified individual with a disability shall, on 15
the basis of disability, be subjected to discrimination in 16
employment under any service, program, or activity conducted by a 17
public entity."). But the Supreme Court has directed that before 18
deferring to an agency's regulations, a court must first employ 19
"'traditional tools of statutory construction' to determine 20
whether Congress has expressed its intent unambiguously on the 21
question before the court." Zimmerman, 170 F.3d at 1173 (quoting 22
Chevron, 467 U.S. at 843 n.9). "If the intent of Congress is 23

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55
clear, that is the end of the matter; for the court, as well as 1
the agency, must give effect to the unambiguously expressed 2
intent of Congress." Chevron, 467 U.S. at 842-43. "The 3
judiciary is the final authority on issues of statutory 4
construction and must reject administrative constructions which 5
are contrary to clear congressional intent." Id. at 843 n.9. 6
Because we conclude that the statute is unambiguous, we do not 7
consider the Attorney General's regulations for this purpose. 8
The plaintiff also argues that our prior statement in 9
Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d 10
37 (2d Cir. 1997), recognized as superseded on other grounds by 11
Zervos v. Verizon New York, Inc., 252 F.3d 163, 171 n.7 (2d Cir. 12
2001), that the word "discrimination" in Title II is a "catch-all 13
phrase that prohibits all discrimination by a public entity, 14
regardless of the context," id. at 45, establishes that we have 15
already decided that Title II applies to employment. But, in 16
relevant part, Innovative only addressed (and rejected) White 17
Plains' argument that Title II did not apply to its zoning 18
decisions because "it contend[ed] that zoning does not constitute 19
a 'service, program, or activity.'" Id. at 44. The question of 20
whether Title II applies to employment discrimination was not 21
before the Court. 22
And this statement must be considered in context. 23
Title II provides that "no qualified individual with a disability 24
shall, by reason of such disability, be excluded from 25
participation in or be denied the benefits of the services, 26

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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
programs, or activities of a public entity, or be subjected to 1
discrimination by any such entity." 42 U.S.C. § 12132. The 2
Innovative court first rejected White Plains' argument on the 3
ground that the word "activity" in the above quoted statutory 4
text was broad enough to encompass municipal zoning decisions. 5
117 F.3d at 44. This reasoning was sufficient to reject 6
completely White Plains' argument, and would have been sufficient 7
to decide the issue before the Court. But the Innovative Court 8
then offered an alternative rationale for rejecting White Plains' 9
argument: that the statutory language "or be subjected to 10
discrimination by any such entity," 42 U.S.C. § 12132, was a 11
"catch-all phrase that prohibits all discrimination by a public 12
entity, regardless of the context," 117 F.3d at 45. In any 13
event, then, the statement in Innovative "was not essential to 14
the Court's holding because it was offered in the alternative[,] 15
and therefore it is [a] dictum that is not binding on us." 16
Willis Mgmt. (VT.), Ltd. v. United States, 652 F.3d 236, 243 (2d 17
Cir. 2011). 18
For the foregoing reasons, we affirm the district 19
court's dismissal of the plaintiff's Title II claims against the 20
Library. 13
21

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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
CONCLUSION 1
For the foregoing reasons, the district court's 2
judgment of dismissal is vacated as to the plaintiff's Title II 3
claim against the NYSLRS. The case is remanded with instructions 4
to the district court to grant the plaintiff leave to amend her 5
complaint if she so wishes to allege facts supporting her claim 6
that she was disabled, and to attempt to state a claim invoking 7
the rule of Ex parte Young, 209 U.S. 123 (1908), and for further 8
proceedings consistent with this opinion. The district court's 9
judgment of dismissal is affirmed as to the plaintiff's Title II 10
claim against the Library. The district court's decision to 11
decline to exercise supplemental jurisdiction over the 12
plaintiff's state law claims is vacated for reconsideration 13
depending on the course of the further proceedings contemplated 14
by this opinion. 15
Costs of the plaintiff on appeal to be paid by NYSLRS 16
to the plaintiff; the Library shall bear its own costs. 17

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