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October 15, 1996

MICHAEL A. CHATOFF, Plaintiff, against WEST PUBLISHING COMPANY and FRANK NICASTRI, individually and as Executive Editor of West Publishing Company, Defendants.

The opinion of the court was delivered by: PLATT

 Platt, District Judge.

 On August 15, 1996, defendants moved this Court for an order granting summary judgment on plaintiff's Third Amended Complaint pursuant to Federal Rule of Civil Procedure 56(b). The Court orally denied the bulk of that motion at the conclusion of a hearing on October 5, 1996, but reserved decision on whether to dismiss plaintiff's "accommodation" claim under the Americans with Disabilities Act. Defendants argued that, though not pled specifically, plaintiff implied that claim in a fact statement submitted pursuant to Local Rule 3(g). For the reasons stated below, to the extent plaintiff asserted a distinct accommodation claim, that claim is dismissed.


 Plaintiff has been deaf since 1968. The West Publishing Company ("West") hired plaintiff as an editor in 1972, a function he continues to serve to this day. Plaintiff's primary duty at West has been to prepare the "United States Code, Congressional and Administrative News" ("USCCAN"). Plaintiff also has worked periodically to create cross references to the Code of Federal Regulations, among other tasks.

 On August 31, 1993, plaintiff filed an employment discrimination complaint with the Office of Federal Contract Compliance Programs ("OFCCP"). In his complaint, plaintiff asserted that West had advanced "no handicapped individual" in plaintiff's office, violating its contractual requirement as a federal employer to advance qualified disabled people under Section 503 of the Rehabilitation Act. He stated that West had advanced numerous non-handicapped individuals "over the past dozen years." The only qualitative difference between himself and those promoted over him, plaintiff argued, was the ability to use the telephone. Plaintiff further alleged that several West employees conducted a "campaign of harassment designed to pressure [him] to quit." Though the standardized OFCCP complaint form included a box entitled "Accommodation of Disability" as a possible source of complaint, plaintiff did not check that box.

 The OFCCP ruled against plaintiff. The decision states that plaintiff had "not been successful" on projects other than editing the USCCAN, and that plaintiff was not qualified for a June 1992 promotion made in his department--the only prior promotion the OFCCP investigated. The OFCCP did not investigate the harassment charge, stating that it was not timely filed, nor did it address in any way the issue of accommodation. The Department of Labor upheld the OFCCP decision upon review.

 Plaintiff's Third Amended Complaint before this Court does not specifically plead failure to accommodate. However, the Complaint alleges violations of Section 102 of the Americans with Disabilities Act ("ADA"), which includes the employer's duty to accommodate the "known physical or mental limitations of an otherwise qualified individual." 42 U.S.C. § 12112(b)(5)(A).


 A. The Exhaustion Requirements of the ADA

 The Second Circuit has not squarely resolved the question of whether administrative remedies must be exhausted before claims under the ADA may be filed with a federal district court. The general rule has been that federal courts lack subject matter jurisdiction to hear employment discrimination claims when the plaintiff fails to exhaust proceedings before an agency vested with authority to address such claims. Butts v. New York Dept. of Hous. Preserv. & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993) (discussing State filing requirement for Title VII claims). Failure to exhaust denies the parties, as well as the agency, the opportunity to settle discrimination disputes "through conciliation and voluntary compliance." Butts, 990 F.2d at 1401 (citation omitted). Federal courts thus may review only claims falling within the scope of the agency's prior investigation. Id. at 1401-1402.

 Courts have assumed that the exhaustion rule enunciated in Butts applies wholesale to discrimination claims grounded in the ADA. See Angotti v. Kenyon & Kenyon, 929 F. Supp. 651, 654 (S.D.N.Y. 1996) (assuming without deciding that exhaustion is required of ADA claims). However, the ADA distinguishes between charges brought against employers generally and those brought against public employers. The former are governed by the general employment discrimination rule of Subchapter I of the ADA. See 42 U.S.C. § 12112. The latter are governed by the rule against discrimination in public services of Subchapter II. See 42 U.S.C. § 12132.

 Subchapter I dictates that discrimination charges brought against any "covered entity," defined as "an employer, employment agency, labor organization, or joint labor-management committee," 42 U.S.C. § 12111(2), shall be governed by the procedures set forth in, inter alia, Section 2000e-5 of the title. 42 U.S.C. § 12117(a). Section 2000e-5, the provision at issue in Butts, sets forth the procedural requirements for Title VII claims; with limited exceptions, failure to comply with those requirements constitutes failure to exhaust. Butts, 990 F.2d at 1401 (stating that district courts may not hear Title VII claims that do not meet Section 2000e-5's requirements). On the other hand, claims against public entities brought under Subchapter II are governed by "section 794a of Title 29," which allows plaintiffs to go directly to federal court without first exhausting administrative remedies. See Doe v. New York Univ., 666 F.2d 761, 774 (2d Cir. 1981) (citing Leary v. Crapsey, 566 F.2d 863 (2d Cir. 1977)); 28 C.F.R. § 35.172(b) ("At any time, the complainant may file a private suit . . . .").

 Plaintiff's claims against West must be governed by the procedural requirements of Section 2000e-5. Plaintiff did not plead violations of Section 12132 of the ADA; his Third Amended Complaint alleges only violations of Section 12112. Even had he wished to, plaintiff may not avail himself of the less stringent procedural requirements of Section 12132. Plaintiff has asserted that West has "substantial contracts with the Federal Government." (Pl.'s OFCCP Compl. at 2.) Notwithstanding the fact that plaintiff has provided no factual support for that assertion, West would not meet Subchapter II's definition of "public entity" even with such contracts. See 42 U.S.C. § 12131(1). Thus, West must be considered a ...

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