S.D.N.Y Tracks Circuit Split Re Applicability of Title II to Employment Discrimination
Per Melrose v. N.Y. State Dept. of Health Office of Professional Medical Conduct, 2009 WL 211029 (S.D.N.Y. Jan 26, 2009):
The 4th, 5th, 9th, 10th, and 11th Circuits, as well as district courts within the Second Circuit, have addressed the applicability of Title II to employment discrimination with conflicting results. See, e.g., Zimmerman v. Oregon Dep't of Justice, 170 F.3d 1169, 1173 (9th Cir.1999) (holding Title II inapplicable to employment discrimination); Davoll v. Webb, 194 F.3d 1116, 1130 (10th Cir.1999) (assuming Title II applicable to employment discrimination); Bledsoe v. Palm Beach County Soil & Water Conservation Dist., 133 F.3d 816, 820 (11th Cir.1998) (holding Title II permits an employment discrimination claim against a public entity); Holmes v.. Texas A & M Univ., 145 F.3d 681, 683-84 (5th Cir.1998) (assuming Title II applicable to employment discrimination); Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d 1261, 1264-65 (4th Cir.1995) (assuming Title II applicable in the employment context); Sworn v. Western N.Y. Children's Psychiatric Ctr., 269 F.Supp.2d 152, 157 (W.D.N.Y.2003) (holding Title II inapplicable); Smith v. State Univ. of N.Y., No. 00-1454, 2003 WL 1937208, at *8 (N.D.N.Y. Apr. 23, 2003) (holding Title II applicable); Syken v. State of N.Y., Executive Dep't, Div. of Hous. & Cmty. Renewal, No. 02-4673, 2003 U.S. Dist. LEXIS 5358, at *23 (S.D.N.Y. Apr. 2, 2003) (holding Title II inapplicable); Winokur v. Office of Ct. Adm., 190 F.Supp.2d 444, 449 (E.D.N.Y.2002) (holding Title II applicable); see also Hinton v. The City College of New York, 05 Civ. 8951, 2008 U.S. Dist. LEXIS 16058, at *70-71 & n. 22 (S.D.N.Y. Feb. 29, 2008) (noting split among circuits as well as fact that "[a]lthough the Second Circuit has yet to address this issue, district courts in this Circuit have been split").
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Defendant's motion to dismiss Plaintiff's Title II claims for monetary and equitable relief against Defendant for failure to state a claim should be granted.