Elwell v. Oklahoma, Ex Rel. Board of Regents

FILED
United States Court of Appeals
Tenth Circuit

September 11, 2012
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JUDY ELWELL,

Plaintiff-Appellant,
v.
No. 11-6061
STATE OF OKLAHOMA, ex rel.,
BOARD OF REGENTS OF THE
UNIVERSITY OF OKLAHOMA,

Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 5:10-CV-01169-C)

Courtney D. Powell of Lester, Loving & Davies, P.C., Edmond, Oklahoma, for
Plaintiff-Appellant.

Shawnae E. Robey, Office of Legal Counsel, University of Oklahoma (Matthew
R. Stangl with her on the brief), Norman, Oklahoma, for Defendant-Appellee.

Before GORSUCH, HOLMES, and MATHESON, Circuit Judges.

GORSUCH, Circuit Judge.

Does the Americans with Disabilities Act create two separate but

overlapping causes of action for employment discrimination? Everyone agrees
Title I of the ADA authorizes the disabled to bring employment discrimination

claims: it discusses the issue at length and in detail. But can a party bring an

employment discrimination claim under Title II as well? Even though Title II

never mentions employment and expressly seeks instead to root out discrimination

against the disabled in the provision of public services? Judy Elwell tried to

convince the district court Title II does this duplicative work, but that court

disagreed, and in the end we must too.

For years, Ms. Elwell worked at the University of Oklahoma. It was mostly

an office job — researching and writing, taking notes and typing. Relatively

recently, Ms. Elwell began to suffer from a degenerative spinal disc condition.

While she says her disability didn’t prevent her from performing the essential

functions of her job, she did seek certain accommodations from her employer.

Her amended complaint doesn’t tell us what those requested accommodations

were, but it does charge the University with refusing to provide them — and,

what’s worse, ultimately firing her because of her disability.

All this led Ms. Elwell to file suit. She alleged violations of both Title II

of the ADA, 42 U.S.C. § 12101 et seq., and the Oklahoma state Anti-

Discrimination Act (OADA), Okla. Stat. tit. 25, § 1301 et seq. The district court,

however, soon dismissed her amended complaint, holding that Title II does not

provide a cause of action for employment discrimination and that Oklahoma had

not waived its immunity from suit under the OADA.

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 Starting with her federal claim first, there’s no dispute that Title I of the

ADA permits actions for employment discrimination. But what’s less clear is

whether Title II does the same thing. Ms. Elwell insists the answer is yes; the

University and the district court are sure the answer is no. Though the ADA was

originally enacted in 1990, the question remains an open one in this circuit.

We’ve highlighted the question before, but not yet decided it. See Davoll v.

Webb, 194 F.3d 1116, 1130 (10th Cir. 1999). Today, we must.

In approaching the question, we begin as always with the language of the

statute. Most specifically, it says this:

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

42 U.S.C. § 12132.

As comes apparent enough from its grammar, the statute contains two

primary clauses. The first prevents “qualified individual[s] with a

disability” from being “excluded from participation in or be[ing] denied the

benefits of the services, programs, or activities of a public entity.” The

second prevents “qualified individuals” from being “subjected to

discrimination by” the public entity. Everyone before us agrees that the

University is a “public entity” for purposes of Title II. So the remaining

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question we face is whether one, both, or neither of these clauses gives rise

to a cause of action for employment discrimination.

Beginning with the first clause, the question it poses is this: can

“employment” be described fairly as a service, program, or activity of a

public entity like the University? We think not. Ordinarily speaking, an

agency’s services, programs, and activities refer to the “outputs” it provides

some public constituency. The phrase does not refer to the “inputs,” like

employees, needed to make an agency’s services, programs, and activities

possible. A university’s services, programs, and activities might include

courses in Bach, biophysics, or basket weaving — outputs provided to its

students — but not the professors, piano tuners, or other people needed to

make those offerings possible. Employing people isn’t a service, program,

or activity the university provides: it is a means or method the university

uses to provide its services, programs, and activities. On this much, nearly

every court to have faced the question agrees, holding the plain language of

the first clause of § 12132 does not reach employment. 1

1
See, e.g., Zimmerman v. Or. Dep’t of Justice, 170 F.3d 1169, 1174 (9th
Cir. 1999); Canfield v. Isaacs, 523 F. Supp. 2d 885, 889-90 (N.D. Ind. 2007);
Brettler v. Purdue Univ., 408 F. Supp. 2d 640, 655-56 (N.D. Ind. 2006); Cormier
v. City of Meriden, No. 03CV1819, 2004 WL 2377079, at *3-4 (D. Conn. Sept.
30, 2004); Filush v. Town of Weston, 266 F. Supp. 2d 322, 328-29 (D. Conn.
2003); Decker v. Univ. of Houston, 970 F. Supp. 575, 578 (S.D. Tex. 1997). In
fact, the parties cite no authority on the other side of the ledger and our research
has turned up only one district court case, Dominguez v. City of Council Bluffs,
(continued...)

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 A close look at the statutory terms confirms their point. “Services”

are ordinarily understood as acts “done for the benefit . . . of another.”

Webster’s Third New International Dictionary 2075 (2002); see also 15

Oxford English Dictionary 34 (2d ed. 1991) (“The work or duty of a

servant; the action of serving a master.”). We don’t doubt that universities

undertake a wide range of acts designed to benefit their students, both in

the classroom and beyond. A university may offer academic instruction,

meals and living quarters, even places to play and make friends — doing all

of these things to benefit its students. A university may employ people as a

means to provide these benefits. But one doesn’t usually think of

employing people as itself a benefit a university seeks to provide, as some

sort of end in and of itself.

Much the same might be said of the term “program.” The statute

says that disabled persons may not be denied the right to “participat[e] in”

or receive the “benefits of” a public entity’s “programs.” As a matter of

plain language, this surely prohibits a public entity from denying access to

1
(...continued)
974 F. Supp. 732 (S.D. Iowa 1997), that does not address the plain language
understanding adopted by all these other courts. To be sure, in Currie v. Group
Insurance Commission, 290 F.3d 1, 6-7 (2002), the First Circuit did say that
“[t]he words ‘public services, programs, or activities’ do not necessarily exclude
employment.” But it did so only in passing and without offering any detailed
textual analysis of Title II. Indeed, it ultimately declined to decide the question,
resolving the case on entirely separate grounds.

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a public program like social security. Or, in the university context, denying

access to, say, a foreign exchange program. But we don’t ordinarily

understand employees who help make programs possible as themselves

participating in or receiving their benefits. The phrase “programs of a

government entity” refers to its “project[s] or scheme[s],” Webster’s, supra,

at 1812; see also 12 Oxford English Dictionary, supra, at 589 (“a planned

series of activities or events”) — not, usually at least, to the employment of

those needed to effect an agency’s projects and schemes.

Now, one might well wonder whether the term “activity” might bear

a broader meaning. In one sense, after all, the term “activity” could

encompass anything a public entity does. See Webster’s, supra, at 22

(defining “activity” as “natural or normal function or operation”). But a

statutory term often takes on a shade of meaning by the company it keeps.

See Freeman v. Quicken Loans, Inc., 132 S. Ct. 2034, 2042 (2012) (“[T]he

commonsense canon of noscitur a sociis . . . counsels that a word is given

more precise content by the neighboring words with which it is

associated”). And here the placement of the term “activity” suggests an

effort to capture all the outputs the public entity provides to the public it

serves, to be comprehensive in that respect, not necessarily to rope in

everything the entity does. After all, if that were the point the earlier listed

terms “services” and “programs” would become superfluous, eaten up by

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the all-encompassing term “activities,” and we are always hesitant to

assume Congress included pointless language in its statutory handiwork.

See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“It is a cardinal principle

of statutory construction that a statute ought, upon the whole, to be so

construed that . . . no clause, sentence, or word shall be superfluous . . . .”

(internal quotation marks omitted)).

Tending to confirm our understanding of the term “activity” and the

whole of the first clause is this. If Congress had wanted to prohibit

discrimination in all aspects of a public entity’s operations, it easily could

have said just that — indeed, it has in other anti-discrimination statutes.

See, e.g., 20 U.S.C. § 1687(1)(A) (Title IX) (defining “program or activity”

to mean “all of the operations of . . . [any] instrumentality of a State or of a

local government”); 29 U.S.C. § 794(b)(1)(A) (Rehabilitation Act) (same).

The fact Congress chose different language in Title II strongly suggests a

different meaning at work. See N. Haven Bd. of Educ. v. Bell, 456 U.S.

512, 530 (1982) (“[A]lthough two statutes may be similar in language and

objective, we must not fail to give effect to the differences between

them.”).

But even if the first clause of § 12132 doesn’t encompass employment

discrimination claims, we still must ask: what about the second? Ms. Elwell

argues that the phrase “or be subjected to discrimination by any such entity” is a

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“catch-all” prohibiting discrimination by a public entity, regardless whether it

occurs in a service, program, or activity the entity provides or in some other way

or function. On this view, the second clause effectively applies the ADA’s anti-

discrimination mandate to any operation of a public entity, including employment.

An attractive possibility at first blush, but this reading has a serious

problem of its own. Remember that § 12132 prohibits discrimination only against

“qualified individuals.” In § 12131(2), Congress defines “qualified individual[s]”

to include only those “individual[s] with a disability who . . . meet[] the essential

eligibility requirements for the receipt of services or the participation in programs

or activities provided by a public entity.” 42 U.S.C. § 12131(2) (emphases

added). And, as we have already explained, virtually every court to face the

question has interpreted the words “services,” “programs,” and “activities” in

§ 12132 to mean an agency’s “outputs.” Neither do we see any plausible way to

give these words an entirely different meaning barely a page away in § 12131.

See Sullivan v. Stroop, 496 U.S. 478, 484 (1990) (noting the “normal rule of

statutory construction that identical words used in different parts of the same act

are [presumed] to have the same meaning.” (internal quotation marks omitted)).

Given all this, if the second clause of § 12132 expanded liability to all of a public

entity’s operations, as Ms. Elwell argues, it would do so only for a limited class

of disabled employees — for those who happen to be eligible to participate in an

agency’s outputs. If the defendant public entity is a soup kitchen providing meals

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to the indigent, only disabled employees who are themselves indigent could bring

a discrimination claim; other disabled and discriminated against employees would

be left without recourse. If, as in our case, the defendant provides a university

education, only disabled employees who qualify for admission would be entitled

to bring an employment discrimination claim; other employees without the right

test scores would not. Whether strictly speaking this result qualifies as an absurd

one, it is surely a most unlikely reading of the statute.

Neither is it unavoidable. If we read both clauses of § 12132 as referring to

the agency’s services, programs, and activities, then the definition of “qualified

individual” in § 12131(2) makes sense. The provision forbidding discrimination

(§ 12132) and the one defining those qualified to sue (§ 12131(2)) work in

concert rather than at odds. On this reading, the first clause precludes an agency

from discriminatorily “exclud[ing]” or “den[ying] benefits” to disabled persons

who are eligible for the services, programs, or activities the agency provides to

the public. The second does distinctly additional work by prohibiting the agency

from engaging in other forms of discrimination against those same individuals.

While the first clause prevents an agency from baldly “exclud[ing]” or “den[ying]

benefits” to handicapped individuals, the second clause prevents an agency from,

say, making it disproportionately more difficult for handicapped individuals to

participate; unfairly disadvantaging them compared to others; or otherwise

discriminating against them in the manner the agency provides its services,

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programs, and activities. On this reading, the former clause may ban balder and

more obvious acts of discrimination, but the latter is needed to address subtler if

equally inequitable acts of discrimination.

Admittedly, if this were all we could find in the ADA bearing on the

question of employment claims under Title II, the case might remain a close one.

But any lingering uncertainty about the best reading of § 12132 quickly falls

away when we step back and view it in the context of the larger statutory

structure. So far we’ve confined our inquiry to the most pertinent and narrowest

code provisions. But when seeking to discern a statute’s plain meaning, our view

cannot be blinkered to the plow line directly ahead; we have to eye the whole

statutory field. See Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997) (“The

plainness or ambiguity of statutory language is determined by reference to the

language itself, the specific context in which that language is used, and the

broader context of the statute as a whole.”). And doing that, looking to the larger

composition of the ADA, quickly reminds us that it proceeds in three distinct

movements, forbidding “discrimination against persons with disabilities in three

major areas of public life: employment, which is covered by Title I . . . ; public

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

accommodations, which are covered by Title III.” Tennessee v. Lane, 541 U.S.

509, 516-17 (2004). All this reminds us, too, that each title does important and

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independent work — work that would be diminished, duplicated, even rendered

superfluous were we to read Title II as covering employment discrimination.

Congress labeled Title I “Employment.” Pub. L. No. 101-336, 104 Stat.

327, 330 (1990). That Title speaks of employment discrimination expressly and

throughout, plainly seeking to eradicate that wrong. See 42 U.S.C. § 12111 et

seq. In defining those “qualified” to sue under Title I, Congress indicated that

disabled persons capable of “perform[ing] the essential functions” of the job in

question could sue. Id. § 12111(8). Nothing turns on whether the plaintiff also

happens to be eligible to receive his employer’s services or participate in its

programs or activities. Title I also specifies what defenses and exemptions are

available to employers in employment discrimination cases, including exemptions

for smaller employers. Id. § 1211(5)(A). It details what damages are and are not

available. Id. § 1981a(a)(2). It incorporates the remedial procedures applicable

to Title VII of the Civil Rights Act of 1964, including the requirement that

employees exhaust their administrative remedies before the EEOC or a similar

state agency before proceeding to court. Id. § 12117(a). And it likewise

delegates regulatory authority for developing additional rules to carry out Title I’s

purposes to the EEOC, a body with expertise in employment law issues. Id.

§ 12116.

Title II, in contrast, is entitled “Public Services.” 104 Stat. at 337. It

focuses on discrimination in public services, programs, and activities but contains

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precisely no explicit references to employment discrimination. It lays out no

scheme of defenses for employers. It lacks the requirement that an otherwise

qualified individual exhaust EEOC administrative remedies before bringing suit.

See 42 U.S.C. § 12133; 29 U.S.C. § 794a. And regulatory authority is delegated

not to the EEOC but to the Attorney General. 42 U.S.C. § 12134(a).

All this strongly suggests that Title I, not Title II, is the proper tool for

pursuing employment discrimination claims. After all, “[w]here Congress

includes particular language in one section of a statute but omits it in another

section of the same Act, it is generally presumed that Congress acts intentionally

and purposely in the disparate inclusion or exclusion.” Russello v. United States,

464 U.S. 16, 23 (1983). By including a discussion of employment discrimination

in Title I, Congress’s failure to discuss it in Title II appears all the more a clear

and deliberate choice of exclusion. Indeed, even if Title II did bear on

employment discrimination by implication, as Ms. Elwell suggests, we would still

give governing effect to Title I in light of its comparative specificity on the

question of employment discrimination. “However inclusive may be the general

language of a statute” like Title II, “it will not be held to apply to a matter

specifically dealt with in another part of the same enactment.” Fourco Glass Co.

v. Transmirra Prods. Corp., 353 U.S. 222, 228 (1957) (emphasis added) (internal

quotation marks omitted); see also RadLAX Gateway Hotel, LLC v. Amalgamated

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Bank, 132 S. Ct. 2065, 2071 (2012). Congress’s most specific directions are its

controlling directions.

Any other result would, as well, threaten to undo at least some of Title I.

Part of the point of the canon of construction dictating that the specific controls

the general is to “avoid[] . . . the superfluity of a specific provision that is

swallowed by the general rule.” RadLAX, 132 S. Ct. at 2071. And that is a real

risk here. If Title II permitted employment discrimination claims against public

entities as Ms. Elwell supposes, Title I’s deliberate and calibrated rules of

administrative exhaustion and its particular choice to delegate to the EEOC the

responsibility for writing employment-related regulations (to take but a couple

examples) would be undone with respect to that class of defendants.

No doubt this possibility has much to do with why parties sometimes try to

use Title II instead of Title I to pursue employment discrimination claims. In the

past, state employees who failed to meet Title I’s exhaustion requirements tried to

win relief under Title II. See, e.g., Zimmerman, 170 F.3d at 1171. More recently,

the Supreme Court has held that states enjoy Eleventh Amendment immunity from

suit under Title I, presenting an even bigger obstacle for public employees

seeking to bring employment discrimination claims. See Bd. of Trs. of the Univ.

of Ala. v. Garrett, 531 U.S. 356, 364 (2001). In response, litigants have again

turned to Title II hoping to find an avenue for relief that Title I no longer

supplies. See, e.g., Henny v. New York State, 842 F. Supp. 2d 530, 544-45

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(S.D.N.Y. 2012). And undoubtedly this is why Ms. Elwell, herself a public

employee barred by Garrett from proceeding under Title I, seeks to sue under

Title II.

Of course, if Title II did supply a cause of action for employment

discrimination as Ms. Elwell supposes, we would still have to ask, could it?

Under our received Eleventh Amendment jurisprudence, states enjoy immunity

from suit even when it’s their own citizens who are doing the suing. To be sure,

Congress can abrogate this immunity using its powers under Section 5 of the

Fourteenth Amendment. But to do so Congress must first demonstrate that the

States have engaged in a pattern of irrational discrimination. Garrett, 531 U.S. at

364. And from Garrett, we know Congress failed to identify a pattern of

irrational discrimination in state employment practices when enacting Title I. Id.

But how about in Title II? Might that provision successfully abrogate immunity

with respect to state employment practices, even though Title I does not? For its

part, Garrett noted but reserved the question. See 531 U.S. at 360 n.1. Since

then, the Supreme Court has addressed Title II’s interaction with state sovereign

immunity but only in the context of the disabled’s access to courthouses, holding

that on that particular issue Title II does abrogate state immunity. Lane, 541 U.S.

at 533-34. With only this much for guidance, many lower courts faced with the

question whether Title II also abrogates state immunity with respect to

employment discrimination claims have held it does not, reasoning that Garrett,

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not Lane, more closely controls. See, e.g., Clifton v. Ga. Merit Sys., 478 F. Supp.

2d 1356, 1368 (N.D. Ga. 2007); Leverette v. Ala. Revenue Dep’t, 453 F. Supp. 2d

1340, 1344-45 (M.D. Ala. 2006); Koslow v. Commonwealth of Pennsylvania, 158

F. Supp. 2d 539, 542 (E.D. Pa. 2001), rev’d on other grounds, 302 F.3d 161 (3d

Cir. 2002). So even if Ms. Elwell did have a cause of action for employment

discrimination under Title II, there’s a real possibility it would still do her no

good because the University might remain immune from suit.

For our part, we don’t decide the immunity question today. We don’t

because the parties haven’t developed the point in much detail in their appellate

briefs and, though the issue was presented and preserved in the district court, that

court chose not to reach it. We mention the issue, however, because it surely

looms over all we do in this case: even if Ms. Elwell were to win on the statutory

question, it’s a victory that might prove pyrrhic on remand when the immunity

question could be avoided no longer. And this means we must tread with

particular trepidation. It is our charge, after all, to prefer statutory constructions

that avoid, not invite, serious constitutional problems like this one. See Edward

J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S.

568, 575 (1988) (“[W]here an otherwise acceptable construction of a statute

would raise serious constitutional problems, the Court will construe the statute to

avoid such problems unless such construction is plainly contrary to the intent of

Congress.”).

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 Undaunted, Ms. Elwell replies with a structural argument of her own. She

points to other anti-discrimination statutes and says the structure and meaning of

those laws should inform our understanding of Title II. In particular, she points

to Title IX of the Education Amendments of 1972 and the Rehabilitation Act of

1973. But there are simply too many differences between these other statutes and

Title II of the ADA to warrant Ms. Elwell’s interpretive course.

Beginning at the beginning, when it comes to explaining the intended scope

of its coverage, the Rehabilitation Act expressly tells us it was enacted to

“promote and expand employment opportunities in the public and private sectors

for handicapped individuals.” Pub. L. No. 93-112, § 2(8), 87 Stat. 355, 357

(1973) (codified as amended at 29 U.S.C. § 701) (emphasis added). Title IX does

not limit its coverage at all, outlawing discrimination against any “person,” Pub.

L. No. 92-318, § 901(a), 86 Stat. 235, 373 (1972) (codified as amended at 20

U.S.C. § 1681(a)), broad language the Court has interpreted broadly. See Bell,

456 U.S. at 521 (“[I]f we are to give [Title IX] the scope that its origins dictate,

we must accord it a sweep as broad as its language.”). Meanwhile, Title II limits

coverage to “qualified individuals with a disability” and proceeds to define that

phrase without any reference to employment and in a way that (as we’ve seen)

makes it awkward (at best) to cover employment. Underscoring further the

difference in the scope of coverage between these laws, Congress has long since

amended the Rehabilitation Act and Title IX to confirm that they cover “all of the

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operations of . . . [an] instrumentality of a State or local government.” 20 U.S.C.

§ 1687 (emphasis added); 29 U.S.C. § 794(b) (emphasis added). Yet, as we have

seen, Congress has never gone so far with Title II or done anything else to

suggest it reaches employment discrimination, despite many judicial

interpretations reading it as leaving that job to Title I.

Other telling structural differences exist, too. Unlike the ADA, the

Rehabilitation Act and Title IX contain no separate section, like Title I, to handle

employment discrimination actions. Without a separate section to do that work,

one has to believe either that they don’t address employment discrimination at all

or that they do the work with the language they have. In fact, the Supreme Court

expressly relied on the absence of a separate provision as evidence the

Rehabilitation Act as originally enacted did cover employment discrimination.

Darrone, 465 U.S. at 632 n.13. In Darrone, the Court contrasted the

Rehabilitation Act with the Civil Rights Act of 1964 where “it was unnecessary to

extend Title VI more generally to ban employment discrimination, as Title VII

comprehensively regulates such discrimination.” Id. Exactly the same contrast

might be made with the ADA: though the ADA as a whole was enacted to

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

discrimination against individuals with disabilities,” 42 U.S.C. § 12101(b)(1),

there is no need to extend Title II to achieve this goal when Title I already does

that work.

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 Ms. Elwell responds by emphasizing that Title II of the ADA cross-

references the Rehabilitation Act. Title II says that a plaintiff may avail himself

of the “remedies, procedures, and rights set forth in § 794a” of the Rehabilitation

Act. 42 U.S.C. § 12133. And this, she submits, means Title II effectively

incorporates the Rehabilitation Act’s scope of coverage, including its coverage of

employment discrimination claims.

But the statutory language she identifies hardly does so much heavy lifting.

The language in Title II she cites incorporates only one provision of the

Rehabilitation Act, one specifying procedural rights and remedies. The language

does not purport to incorporate the Rehabilitation Act’s substantive guarantees,

let alone its declaration in § 794(b) that its scope of coverage includes all of a

governmental entity’s operations. So, far from proving Ms. Elwell’s point, the

fact Congress chose to incorporate § 794a’s processes but not § 794(b)’s scope of

coverage or the Rehabilitation Act’s other substantive provisions comes closer to

“demonstrat[ing] precisely the opposite.” Zimmerman, 170 F.3d at 1179. After

all, “[c]ommon sense, reflected in the canon expressio unius est exclusio alterius,

suggests that the specification of [one provision] implies” the exclusion of others.

Arizona v. United States, 132 S. Ct. 2492, 2520 (2012) (Scalia, J., concurring in

part and dissenting in part).

Speaking of cross-references, there is another that does Ms. Elwell’s cause

even more harm. After enacting the ADA, Congress revisited the question what

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standards should be applied in assessing a complaint for employment

discrimination under the Rehabilitation Act. In doing so, Congress chose to adopt

and incorporate the standards found in Title I of the ADA. See Rehabilitation Act

Amendments of 1992, Pub. L. No. 102-569, § 506, 106 Stat. 4344, 4428 (codified

as amended at 29 U.S.C. § 794(d)). No mention was made of Title II. Given this,

“[i]t would seem rather bizarre” to think Title II covers employment

discrimination simply because the Rehabilitation Act does when “the

Rehabilitation Act itself ties its employment cause of action to Title I.” Bledsoe

v. Palm Beach Soil & Water Conservation Dist., 942 F. Supp. 1439, 1446 (S.D.

Fla. 1996), rev’d, 133 F.3d 816 (11th Cir. 1998).

Still persisting with her argument that Title II and the Rehabilitation Act

should be interpreted identically, Ms. Elwell points to the fact that Title II directs

the Attorney General to promulgate regulations “consistent with . . . the

coordination regulations . . . applicable to recipients of Federal financial

assistance under section 794 of Title 29” of the Rehabilitation Act. 42 U.S.C.

§ 12134(b). And, she notes, at the time Congress passed the ADA the referenced

Rehabilitation Act regulations included prohibitions on employment

discrimination. See 28 C.F.R. § 41.52–.55 (1989). From this, she again asks us

to infer that Title II must include an employment discrimination claim.

But, by exclusion and once again, § 12134(b) does not so much help Ms.

Elwell’s cause as hurt it. Section 12134(b) does not incorporate the

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Rehabilitation Act’s regulations into the ADA or direct the Attorney General to

promulgate identical regulations for Title II. It simply says the Attorney

General’s regulations must be “consistent” — that is, compatible or not

contradictory — with those under the Rehabilitation Act. See Webster’s, supra,

at 484; 3 Oxford English Dictionary, supra, at 773 (“agreeing or according in

substance or form; congruous, compatible”). And meeting that objective is surely

possible without reading employment into Title II. After all, the referenced

Rehabilitation Act regulations cover not just discrimination in employment but an

array of other issues — including discrimination in services, programs, and

activities, along with accessibility standards for public facilities. Obviously,

Congress sought in § 12134(b) to prevent the Attorney General and EEOC from

whipsawing employers with contradictory rules in areas where their regulatory

authority overlaps — not to adopt surreptitiously a whole new cause of action that

would render some of its own legislative work in Title I a nullity.

Leaving aside the business of trying to analogize the Rehabilitation Act and

Title IX — and in a different vein altogether — Ms. Elwell asks us to defer to

regulations the Attorney General issued purporting to permit employment

discrimination claims under Title II. See 28 C.F.R. § 35.140(a). But whatever

Chevron deference we owe to an agency’s interpretations and regulations when a

statute is ambiguous, we are never permitted to disregard clear statutory

directions in favor of administrative rules. If, after employing the “traditional

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tools of statutory construction,” Chevron, U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837, 843 n.9 (1984), we can say the statute is clear, “that

is the end of the matter” and the statute governs as written. Id. at 842. In this

case, those traditional tools of statutory construction — including a close

examination of the text together with a careful review of the larger statutory

structure, see Robinson, 519 U.S. at 341 — persuade us that Congress has spoken

and spoken clearly to the question of employment discrimination claims and

placed them exclusively in Title I. And in these circumstances our duty is clear:

we must apply the law Congress has enacted, not different rules an agency has

promulgated. See Sullivan, 496 U.S. at 493 (1990) (“If a court, employing

traditional rules of statutory construction ascertains that Congress had an

intention on the precise question at issue, that intention is the law and must be

given effect.”). 2

As we’ve already alluded to, our conclusion about the scope of Title II

comports with the thoughtful judgment of the Ninth Circuit, even if our reasoning

2
Neither is it clear the Attorney General’s regulations would help Ms.
Elwell even if they did apply. There’s no question the University employs more
than 15 people and is generally subject to jurisdiction under Title I. As such, the
Attorney General’s regulations indicate that to pursue a Title II employment
discrimination claim she must meet the “requirements” of Title I, taking us right
back to the place she seeks to avoid. 28 C.F.R. § 35.140(b)(1). While we do not
now have to decide what those “requirements” include, if they included the
requirement to exhaust administrative remedies in a timely fashion, that would
spell trouble for Ms. Elwell: she has not suggested to us that she ever sought to
exhaust her administrative remedies.

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may differ in some small particulars. The Third and Sixth Circuits, too, have

expressed the view that Title I is the exclusive province of employment

discrimination within the ADA, if for still different reasons and in different

contexts. See Menkowitz v. Pottstown Memorial Med. Ctr., 154 F.3d 113, 118-19

(3d Cir. 1998); Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1014 (6th Cir.

1997). Many district courts as well agree. See, e.g., Trickey v. Selig, No. 12-CV-

285, 2012 WL 3245956, at *1 (E.D. Ark. Aug. 8, 2012); Osborne v. Okla. Emp’t

Sec. Comm’n, No. CIV-05-1500, 2006 WL 2090089, at *3 (W.D. Okla. July 25,

2006); Koslow, 158 F. Supp. 2d at 541; Motzkin v. Trs. of Bos. Univ., 938 F.

Supp. 983, 996 (D. Mass. 1996).

We acknowledge the Eleventh Circuit and various district courts have gone

the other way. See, e.g., Bledsoe, 133 F.3d at 825; Downs v. Mass. Bay Transp.

Auth., 13 F. Supp. 2d 130, 135 (D. Mass. 1998); Davoll v. Webb, 943 F. Supp.

1289, 1297 (D. Colo. 1996); Hernandez v. City of Hartford, 959 F. Supp. 125,

133 (D. Conn. 1997). But we agree with the Ninth Circuit that few of these

courts have adequately confronted the plain language and structure of the ADA

before resorting to administrative regulations or legislative history. Zimmerman,

170 F.3d at 1183-84 & nn.11-15. Given the near unanimity that a claim doesn’t

arise from the first clause of § 12132, presumably these courts would, if

confronted with the textual question, rely on the second clause for support. But

none of these courts have paused to acknowledge the very strange fact that an

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interpretation along these lines means only persons qualified to receive or

participate in the defendant agency’s services, programs, or activities can sue —

leaving in the cold many disabled plaintiffs with otherwise strong employment

discrimination claims. As well, most of the decisions going the other way predate

Zimmerman and so lacked the helpful light it shone on the statutory text and

structure. Neither are we surprised that the question whether Title II includes an

employment discrimination claim hasn’t arisen much since Zimmerman was

decided. While the statutory question attracted much attention shortly after the

ADA was enacted in 1990, with the Supreme Court’s Garrett decision in 2001 the

lower courts haven’t had much call to decide it. They haven’t because, again,

whether the statute does or doesn’t contain such a cause of action is of no moment

for state employees like Ms. Elwell’s if Congress failed to abrogate sovereign

immunity. And since Garrett was handed down, many courts have found it

simpler to proceed directly to that question, bypassing the statutory interpretation

question altogether. See, e.g., Clifton, 478 F. Supp. 2d at 1368.

Having reached the end of the road on Title II, that leaves us still to

contend with Ms. Elwell’s state law claim, and this we can do much more briefly.

Ms. Elwell brought a claim under the Oklahoma Anti-Discrimination Act. At the

time she brought suit, the OADA provided a cause of action against “any person”

who commits employment discrimination “on the basis of handicap.” See Okla.

Stat. tit. 25, § 1901 (repealed). The OADA defined a “person” to include “the

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state, or any governmental entity or agency.” Okla. Stat. tit. 25, § 1201. Given

this definition, Ms. Elwell argues, the State clearly anticipated OADA suits

against it and, in this way, waived its Eleventh Amendment immunity. 3

The difficulty is, the OADA doesn’t exist in a vacuum. There is also the

Oklahoma Governmental Tort Claims Act (OGTCA) to contend with. And

§ 152.1 of that law says “[t]he State of Oklahoma does hereby adopt the doctrine

of sovereign immunity” and “[t]he state, only to the extent and in the manner

provided in this act, waives its immunity and that of its political subdivisions. In

so waiving immunity, it is not the intent of the state to waive any rights under the

Eleventh Amendment to the United States Constitution.” Okla. Stat. tit. 51,

§ 152.1 (emphasis added). It is undisputed that the OGTCA does not contain a

waiver of immunity for OADA claims.

How then to resolve the conflict between OADA’s apparent expectation of

suits against the state and OGTCA’s apparent prohibition of them? It comes

down to a question of the law’s base line. In the realm of sovereign immunity,

the Supreme Court has decided that “a State will be deemed to have waived its

3
Oklahoma has since revamped the OADA considerably. See Act of May
18, 2011, ch. 270, 2011 Okla. Sess. Law Serv. Ch. 270 (West). But by its own
terms, the new law became effective only on November 1, 2011, id. § 22, well
after Ms. Elwell filed her complaint and the underlying events took place. And
there is no reason here as a matter of Oklahoma law to apply the new OADA
retroactively. See Barnhill v. Multiple Injury Trust Fund, 37 P.3d 890, 898 (Okla.
2001) (“The general rule is that statutes have prospective operation unless the
purpose and intent of the Legislature to give them a retroactive effect is expressly
declared or necessarily implied from the language used.”).

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immunity only where stated by the most express language or by such

overwhelming implication from the text as [will] leave no room for any other

reasonable construction.” Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 239-

40 (1985) (internal quotation marks omitted). So the base line we are obliged to

enforce is immunity and those seeking to show waiver bear the burden of showing

room for no other reasonable construction of state law. And that’s a burden Ms.

Elwell simply cannot meet. It is at least as (if not more) reasonable to think the

OADA gives way to the OGTCA as the other way round. After all, only the

OGTCA speaks expressly to the question of immunity and the Supreme Court

requires an express waiver of immunity before permitting suit.

Ms. Elwell seeks to argue otherwise by pointing to three cases: Pellegrino

v. State ex rel. Cameron University ex rel. Board of Regents of State, 63 P.3d 535

(Okla. 2003), Duncan v. City of Nichols Hills, 913 P.2d 1303 (Okla. 1996), and

Locke v. Grady County, No. CIV-09-327, 2009 WL 1564221 (W.D. Okla. June 4,

2009). All three hold that the notice and other procedural requirements the

OGTCA imposes on “tort” claims against the state do not apply to OADA claims.

In doing so, they reason that OADA claims simply are not “tort” claims within the

meaning of the OGTCA.

But none of this answers (or even addresses) the question we must ask. For

our purposes, how Oklahoma chooses as a matter of state law to define “tort”

actions is neither here nor there. The question before us — whether a state has

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effected a waiver of sovereign immunity — is one of federal law. The cases Ms.

Elwell cites simply do not speak to that federal question.

And even what they do say as a matter of state law doesn’t do much to

help, either. By way of example, Duncan applies the rule common to both federal

and state statutory interpretation that the specific controls the general: “Where

there are two provision[s] of the statutes, one of which is special and particular

and clearly includes the matter in controversy . . . , it will be held that the special

statute applies.” 913 P.2d at 1310. And here, of course and again, the most

specific discussion of sovereign immunity in Oklahoma law is the OGTCA’s

explicit reservation, not the OADA’s generic definition of the word “person” that

nowhere mentions the doctrine. So if anything Duncan proves consistent, not at

odds, with our conclusion that the OGTCA cannot be ignored and serves to

preclude a waiver of sovereign immunity.

Because Title II does not contain an independent cause of action for

employment discrimination and because Ms. Elwell cannot carry her burden of

showing a waiver of sovereign immunity that might permit her to proceed with an

OADA claim, the judgment of the district court is affirmed.

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