N.D. Ind. Discusses Split Re Availability of Employment Discrimination Claim against a Governmental Entity under Title II of the ADA
Per the district court in Brettler v. Purdue University, --- F.Supp.2d ----, 2006 WL 52755 (N.D. Ind. Jan. 10, 2006):
The Federal Courts of Appeals are divided as to whether a claim for employment discrimination against a governmental entity is authorized under Title II, in light of the express establishment of a cause of action for disability discrimination in employment against such entities under Title I. Compare Bledsoe v. Palm Beach County Soil & Water Conservation Dist., 133 F.3d 816, 820 (11th Cir.) (holding that Title II covers employment discrimination), cert. denied525 U.S. 826, 119 S.Ct. 72, 142 L.Ed.2d 57 (1998),FN5 with Zimmerman v. Oregon Dep't of Justice, 170 F.3d 1169, 1173 (9th Cir.1999) (holding that a public employee cannot bring a claim of employment discrimination under Title II).FN6 See also Garrett, 531 U.S. at 360 n. 1 (recognizing the split between Bledsoe and Zimmerman and declining to address the issue of “whether Title II of the ADA, dealing with the ‘services, programs, or activities of a public entity,’ 42 U.S.C. § 12132, is available for claims of employment discrimination when Title I of the ADA expressly deals with that subject”).The Seventh Circuit has not addressed this issue but has acknowledged the split in authority among the circuits. See Staats v. County of Sawyer, 220 F.3d 511, 518 (7th Cir.2000).FN7 District courts within the Seventh Circuit are also divided on this issue. Compare Silk v. City of Chi., No. 95 C 0143, 1996 WL 312074, *12 (N.D.Ill. June 7, 1996) (holding that Title II applies to claims of employment discrimination primarily based on the regulations promulgated by the Attorney General, specifically 28 C.F .R. § 35.140); Dertz v. City of Chi., 912 F.Supp. 319, 323-24, 325 (N.D.Ill.1995) (applying Title II to an employment claim brought against a public entity for denial of disability benefits, finding that disability benefits are a “program” under Title II); Doe v. County of Milwaukee, 871 F.Supp. 1072, 1074-75 (E.D.Wis.1995) (relying on 28 C.F.R. § 35.140 to find that Title II applies to employment); and Petersen v. University of Wis. Bd. of Regents, 818 F.Supp. 1276, 1278 (W.D.Wis.1993) (declining to find that Title II does not apply to employment discrimination because the defendant did not clearly address the issue and based on the absence of any language prohibiting such a claim and on the Department of Justice regulation found at 28 C.F.R. § 35.140 referencing employment discrimination), with Clark v. City of Chi., No. 97 C 4820, 2000 WL 875422, *6 (N.D.Ill. June 28, 2000) (holding that Title II does not cover claims of employment discrimination against a public employer); and Patterson v. Illinois Dep't of Corr., 35 F.Supp.2d 1103, 1109-10 (C.D.Ill.1999) (same).