Argued September 18, 2012
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 10 C 4960 — Harry D. Leinenweber, Judge.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 11 c 5371 — Matthew F. Kennelly, Judge.
Before Flaum, Sykes, and Tinder, Circuit Judges.
Sykes, Circuit Judge.
These consolidated appeals raise a question of first impression in this circuit: Does Title II of the Americans with Disabilities Act ("ADA") cover employment-related disability discrimination? Title II provides that state and local governments may not exclude eligible disabled persons from "participation in" or "the benefits of" governmental "services, programs, or activities" or otherwise "subject" an eligible disabled person "to discrimination." See 42 U.S.C. § 12132. Title I, in contrast, specifically prohibits employment discrimination on the basis of disability. See id. § 12112(a).
The circuits are split on whether Title II applies to disability discrimination in public employment, supplementing the remedy in Title I. Two circuits have squarely held that it does not apply in this context, leaving Title I as the exclusive ADA remedy for claims of disability discrimination in both public and private employment. See Elwell v. Okla. ex rel. Bd. of Regents of the Univ. of Okla., 693 F.3d 1303 (10th Cir. 2012); Zimmerman v. Or. Dep't. of Justice, 170 F.3d 1169 (9th Cir. 1999). One circuit has reached the opposite conclusion. See Bledsoe v. Palm Beach Cnty. Soil & Water Conservation Dist., 133 F.3d 816 (11th Cir. 1998).
The issue arises here in a flurry of lawsuits brought by Linda Brumfield, who was a Chicago police officer from 1999 until she was fired in 2010. She alleges that in 2006 she began to experience unspecified "psychological problems" and the City required her to submit to periodic psychological evaluations to determine whether she was capable of performing her job. Each time she was found fit for duty. In the meantime, however, the Chicago Police Board suspended her three times and fired her in 2010.
Brumfield sued the City of Chicago for employment discrimination, splitting her claims across three lawsuits; only the second and third are relevant here. The second suit alleged claims under Title II of the ADA and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), and the third suit alleged a claim under Title I of the ADA. The district court held that Title II applied in this context but dismissed the second suit for failure to state a claim under either Title II or the Rehabilitation Act. A different district judge dismissed the Title I claim in the third suit as barred by res judicata.
We affirm, though on somewhat different reasoning. We join the Ninth and Tenth Circuits and hold that Title II of the ADA does not cover disability discrimination in public employment; this kind of claim must be brought under Title I. The Rehabilitation Act claim fails because Brumfield has not alleged that she was suspended or fired by reason of disability. Finally, Brumfield does not argue that the district court's res judicata ruling was mistaken but, rather, skips right to the merits of her Title I claim. She has thus waived any challenge to the dismissal of the Title I claim on preclusion grounds.
We take the following facts from Brumfield's complaints, accept them as true, and draw reasonable inferences in her favor. See McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 885 (7th Cir. 2012). In 1999 the City of Chicago hired Brumfield as a full-time, nonprobationary police officer. In 2006 she began to experience unspecified "psychological problems" that interfered with her ability to sleep, eat, and concentrate. The City became aware of these difficulties and required her to submit to psychological examinations on four separate occasions between June 2006 and August 2007. Each time Brumfield was found capable of continuing her work as a police officer, though the examiners informed the City that she was vulnerable to workplace stress.
In April 2008 Brumfield filed a complaint in federal district court in Northern Illinois alleging that subjecting her to psychological examinations amounted to discrimination on account of race, sex, and sexual orientation in violation of federal and state antidiscrimination laws. The case was assigned to Judge Harry Leinenweber. In August 2008 while the case was still pending, the City suspended Brumfield without pay pending discharge proceedings before the Chicago Police Board. Brumfield alleges that this disciplinary measure arose out of an "incident" in June 2006; the complaint provides no factual detail. The Police Board rejected the City's discharge recommendation but suspended Brumfield without pay for 180 days.
In March 2009—before the suspension expired—the City again suspended Brumfield without pay pending discharge proceedings. Brumfield informs us in her brief that this suspension also related to an "incident" in June 2006, but again her complaint contains no factual detail. The Police Board did not discharge her but suspended her without pay for another 180 days.
In September 2009—before the Police Board had issued its second suspension order and before Brumfield returned to work—the City again suspended her without pay pending a third discharge proceeding. Brumfield's complaint does not specify the basis for this disciplinary measure, but in her brief she states that it arose from an April 2007 incident in which she told her captain that she was going to be injured on duty and then fell to the ground, ...