Joseph P. Mclnerney appeals from the dismissal of his complaint by the United States District Court for the Northern District of New York (Hurd, J.) for failure to exhaust administrativе remedies. Because the district court erred in concluding that Mclnerney had an obligation to present his claims under Titles III and V of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., to the Equal Employment Opportunity Commission (“EEOC”) prior to suit, we Vaoate the district court’s judgment of dismissal and Remand.
BACKGROUND
Joseph P. Mclnerney, pro se, who suffers from brain damage and relаted symptoms as a result of a bacterial brain abscess, is a Ph.D. candidate in the Mechanical Aeronautical Nuclear Engineering (“MANE”) program at Rensselaer Polytechnic Institute (“RPI”). He alleges that RPI and various professors and administrators in the MANE program (collectively, “Defendants”) failed to accommodate his disability and unlawfully retaliated against him.
Mclnerney alleges that Professor Leik Myrabo, who was Mclnerney’s thesis ad-visor, hired him as a research assistant in August 2001. Although Mclnerney says that Myrabo promised several times to pay Mclnerney for his research assistance, Myrabo revealed in Aрril 2002 that he was unable to compensate Mclnerney even though he paid other graduate students who performed research for him. Myrabo proposed an alternative job for Mclnerney in California with one of his former students. Mclnerney turned it down, however, because his poor health would nоt allow him to travel so far. He alleges that Myr-abo retaliated by, among other things, delaying a letter of recommendation and approval of a scholarship application.
Because of his difficulties with Professor Myrabo, Mclnerney asked the MANE department to assign him a different thesis advisor. The MANE department assigned Professor Kenneth Jansen, but told Mcln-erney that Jansen would not be responsible for funding Mclnerney’s research. According to Mclnerney, Jansen financially assisted other graduate students whom he advised.
In April 2003, Mclnerney failed his doctoral candidacy exam because, he аlleges, he was fatigued from his illness and was asked “ill posed and unreasonable questions.” When Mclnerney explained this to John Tichy, chairman of the MANE deрartment, and asked him to speak with the professors who administered the exam, Tichy allegedly told Mclnerney to stop using his disability as an excuse.
Mclnerney claims that he was denied further accommodations between September 2003 and June 2004 when Professor Jansen refused to provide Mclnerney with extra research assistance or help Mclner-ney find a tutor. In August 2004, the MANE department also rejected Mclner-ney’s request to be assigned another thesis аdvisor.
In October 2005, Mclnerney brought this action, alleging violations of Titles III and Y of the ADA and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.
Mclnerney now appeals.
DISCUSSION
Although the district court suggested it lacked jurisdiction over the case, its dismissal for failure to exhaust administrative remedies is more рroperly characterized as a dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).
See Fernandez v. Chertoff,
Applying these standards, we agree with Mclnerney that the district court erred in dismissing his complaint. His ADA claims did not require administrative exhaustion.
Whether an ADA claim must first be presented to an administrative agency depends on which precise title of the ADA the claim invokes. Title I prohibits employers from discriminating agаinst disabled employees, see 42 U.S.C. § 12112(a), while Title III forbids discrimination “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privilegеs, advantages, or accommodations of any place of public accommodation,” id. § 12182(a). RPI, as a “postgraduate private school,” is doubtless a place of public accommodation. See id. § 12181(7)(J). Title V proscribes retaliation because of a person’s oppositiоn to any act or practice that the ADA prohibits. See id. § 12203(a).
ADA Title I incorporates various provisions from Title VII of the landmark Civil Rights Act of 1964. See id. § 12117(a) (incorporating “[t]he powers, remedies, and procedures set forth in [42 U.S.C.] sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9”). One of these provisions, section 2000e-5, requires a claimant to file a charge of employment discrimination with the EEOC within 180 days after the discriminatory act. See id. § 2000e-5(e)(1). This administrative-exhaustion provision, however, is not found in ADA Title III. Instеad, ADA Title III incorporates only § 2000a-3(a), see id. § 12188(a)(1), providing for injunctive relief against certain discriminatory acts, see id. § 2000a-3(a). Title V retaliation claims in the emрloyment context require the same procedures as those under Title I, while retaliation claims relating to public accommodations follоw Title III procedures. See id. § 12203(c). Thus, if Title III does not require administrative exhaustion, Title V claims predicated on asserting one’s rights under Title III require no exhaustion either.
The language and structure of the ADA demonstrate that Title III, unlike Title I, does not require administrative exhaustion. “[I]t is a general principle of statutory construction that when Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is ... presumed thаt Congress acts intentionally and purposely .... ”
Barnhart v. Sigmon Coal Co.,
In defending the judgment of dismissal, Defendants argue that Mclnerney’s allegations concerning his work as a research assistant arise under Title I. However, we need not resolve whethеr such work qualifies as “employment” for purposes of the ADA-a question not addressed by the district court-because the complaint contains amрle Title Ill-based allegations. For example, Mclnerney alleges that Defendants failed: (1) to appoint him an adequate thesis advisor, (2) to assist him with funding fоr his research as they did for other students, (3) to provide extra instruction or a tutor, and (4) to accommodate his disability at or after his doctoral candidacy exam. The district court therefore erred by dismissing Mclnerney’s ADA claims for failure to exhaust administrative remedies.
Finally, Mclnerney’s brief on appеal challenges only the dismissal of his ADA claims, making no mention of his claims under Section 504 of the Rehabilitation Act of 1973. Accordingly, we treat any possible challenge to the dismissal of the latter claims as waived.
See Norton v. Sam’s Club,
CONCLUSION
For the foregoing reasons, we VACATE the judgment of dismissal and Remand the case to the district court with instructions to reinstate the complaint, limited to Mcln-erney’s ADA claims. The parties’ motions to accept and to strike Mclnerney’s supplemental exhibits are Denied as moot.