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U.S. District Judge Stefan R. Underhill, departing from the holdings of three of his Connecticut federal colleagues, has ruled that only the narrow Title I of the Americans with Disabilities Act applies to employment discrimination. The majority of federal judges, and the U.S. Justice Department, have construed the ADA to also allow employment claims under its Title II section entitled “Public Services,” and let them enjoy a three-year statute of limitations period. But Underhill, in a carefully reasoned May 6 ruling, concluded that only Title I (“Employment”), with a 300-day limitations period, applies to employment discrimination cases against a public entity. In the case of Filush v. Town of Weston, a police candidate for promotion to sergeant contends the town violated Title II of the ADA when it failed to accommodate his dyslexia in testing, and then manipulated promotion procedures to prevent his advancement. In his 17-page ruling, Underhill carefully compared the language of both titles of the ADA and found the only proper vehicle for an employment claim is Title I, which in Connecticut must be initiated with a complaint to the Commission on Human Rights and Opportunities (CHRO). CONGRESSIONAL INTENT Representing Weston, Michael J. Rose, of Hartford’s Howd & Ludorf, argued that Title II does not apply, and that Congress never intended it to encompass employment claims against municipalities. Underhill’s analysis led him to conclude that the U.S. Attorney General, through the Justice Department, made a mistake in promulgating a Title II regulation which states that a qualified person with a disability cannot be discriminated against in employment “under any service, program or activity conducted by a public entity.” After noting two Connecticut decisions that rule otherwise, by Senior Judges Ellen Bree Burns and Peter C. Dorsey, Underhill wrote, “Although reluctant to depart from the rulings of other courts in the district, I decline to follow the majority view.” The regulation from the Justice Department does not have any weight in affecting the meaning of what Congress wrote, Underhill concluded, because “Congress unambiguously expressed its intent that Title II not apply to employment.” OUTPUT VS. INPUT The judge noted that employment isn’t a subject of Title II, only that a person not be discriminated against or excluded from “the benefits of services, programs or activities of a public entity.” These are “outputs” of the town’s activities, Underhill noted. But in this case, plaintiff John Filush isn’t contending he was denied the benefit of an “output” public service, such as public transportation. Instead, “Filush’s claims relate to his treatment as an ‘input,’ not on discrimination incurred while trying to take advantage of the town’s ‘outputs.’” A 1997 ruling by the 2nd U.S. Circuit Court of Appeals, Innovative Health Sys. Inc. v. White Plains, states that Title II’s anti-discrimination language was “a catch-all phrase that prohibits all discrimination by a public entity, regardless of context.” Underhill distinguished that case on two grounds — its subject matter and its age. The case dealt with whether zoning issues fell within Title II, not with employment, which has its own specific section in Title I. Furthermore, Underhill wrote, since 1997 several U.S. circuit courts have analyzed whether Title II covers employment matters and found it did not. Those views, he suggested, would likely prove persuasive to the 2nd Circuit. PLAIN MEANING The judge’s statutory construction approach strikes at the most controversial topic this year for the Connecticut Supreme Court, which has been divided over revocation of the so-called plain meaning rule. The state legislature introduced and is expected to pass a bill to revoke the effect of State v. Courchesne, which allows statutes to be analyzed in the broad context of legislative history and other state laws, without finding an obvious ambiguity at the start. To begin with, Underhill found the names of the two titles to provide obvious direction. Title I is labeled “Employment.” On the other hand, he noted that Title II contains no references to employment. “The plain language of the two titles indicates that Congress purposely included references to employment in Title I, and omitted them from Title II, because it intended that only Title I should apply to employment,” he concluded. It is unlikely that Congress wanted to allow public employees a separate procedure which avoids the administrative process, and gives them an exemption from the Title I time limits, Underhill wrote. Gary Phelan, of West Hartford’s Klebanoff & Phelan, is representing Filush. He said Underhill departs from several additional Connecticut judges, including Dominic J. Squatrito. Phelan called the decision thoughtfully reasoned. Although it denies Filush an opportunity to pursue his Title II claims of employment discrimination, Phelan said he also has filed those claims in good time with the CHRO, and his client will not lose legal rights. Other attorneys’ cases, however, have relied on the previous view that a longer limitations period applies for public employees claiming under Title II of the ADA, a litigation strategy that, according to defense lawyer Rose, is now seriously in question.

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