William E. Levesque - Page 11




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                    Subject to the provisions of this subchapter, no                  
               qualified individual with a disability shall, by reason                
               of such disability, be excluded from participation in                  
               or be denied the benefits of the services, programs, or                
               activities of a public entity, or be subjected to                      
               discrimination by any such entity.                                     
               To establish that the ADA was violated, petitioner must show           
          that:  (1) He was disabled, (2) he was denied a public benefit,             
          and (3) the denial was by reason of his disability.  See Kornblau           
          v. Dade County, 86 F.3d 193, 194 (11th Cir. 1996).                          
               Petitioner contends that he was denied a public benefit,               
          i.e., the right to exclude income, because he is disabled.  We              
          disagree.  The pension which Pawtucket pays to petitioner under             
          section 59-21 of the Pawtucket City Code was not based on                   
          disability.  The ADA was not violated because petitioner was not            
          denied a public benefit by reason of his disability.  More                  
          importantly, the taxation of his pension benefits is governed by            
          the Internal Revenue Code, not the ADA.                                     
          C.   Whether Treatment of Petitioner Is Discriminatory                      
               Petitioner contends that respondent's determination is                 
          unfair because payments received by other firefighters throughout           
          the country who have been injured on the job have been excluded             
          from income.  There is no evidence in the record showing how                
          other firefighters were treated or the legal structure of their             


               3(...continued)                                                        
          12133 (1994)) provides:                                                     
                    The remedies, procedures, and rights set forth in                 
               section 794a of Title 29 shall be the remedies,                        
               procedures, and rights this subchapter provides to any                 
               person alleging discrimination on the basis of                         
               disability in violation of section 12132 of this title.                

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Last modified: May 25, 2011