PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROBERT E. JONES,
Plaintiff-Appellant,

v.

AMERICAN POSTAL WORKERS UNION,
NATIONAL; AMERICAN POSTAL
WORKERS UNION, LOCAL NUMBER
4755,
                                                                  No. 97-2584
Defendants-Appellees,

and

PATRICIA FERN BUTTS,
Defendant.

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Amicus Curiae.

Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
W. Craig Broadwater, District Judge.
(CA-96-22-3)

Argued: June 8, 1999

Decided: September 10, 1999

Before ERVIN, HAMILTON, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Vacated and remanded by published opinion. Judge Hamilton wrote
the opinion, in which Judge Ervin and Judge Williams joined.

_________________________________________________________________
COUNSEL

ARGUED: Robert E. Jones, Appellant Pro Se. Robert John Gregory,
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Wash-
ington, D.C., for Amicus Curiae. Susan Lynne Catler, O'DONNELL,
SCHWARTZ & ANDERSON, P.C., Washington, D.C., for Appellee.
ON BRIEF: C. Gregory Stewart, General Counsel, Philip B. Sklover,
Associate General Counsel, Lorraine C. Davis, Assistant General
Counsel, EQUAL EMPLOYMENT OPPORTUNITY COMMIS-
SION, Washington, D.C., for Amicus Curiae. Peter J. Leff,
O'DONNELL, SCHWARTZ & ANDERSON, P.C., Washington,
D.C., for Appellees.

_________________________________________________________________

OPINION

HAMILTON, Circuit Judge:

The principal issue in this appeal is whether a labor union that rep-
resents federal employees may constitute a labor organization as that
term is defined in the Americans With Disabilities Act (ADA), 42
U.S.C. §§ 12101 - 12213, and therefore be subject to suit in federal
district court for violations of 42 U.S.C. § 12112(a). Because the
ADA provides that the term "labor organization" shall have the same
meaning given that term in Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e to 2000e-17, a sister statute, resolution of the
principal issue requires us to resolve the antecedent question of
whether a labor union that represents federal employees may consti-
tute a labor organization as that term is defined in Title VII. For the
reasons that follow, we hold a labor union that represents federal
employees may constitute a labor organization as that term is defined
in Title VII and by proxy the ADA.

I.

At approximately 11:45 a.m. on June 20, 1994, the Postmaster of
the United States Post Office in Martinsburg, West Virginia (the Post
Office), Sebastian Giargiano (Postmaster Giargiano), determined that
United States Postal Service (the Postal Service) employee Robert

                    2
Jones (Jones) was acting strangely on the job and was in need of med-
ical treatment. The Postal Service employed Jones as a claims/inquiry
clerk. Postmaster Giargiano decided to transport Jones via automobile
to the Medical Center for the Department of Veteran's Affairs (the
Medical Center) in Martinsburg. Just prior to leaving the Post Office,
Jones handed Postmaster Giargiano an envelope and said this letter is
for you. Believing the envelope contained ordinary mail, Postmaster
Giargiano tossed it on his desk for reading upon his return.

On the way to the Medical Center, Jones told Postmaster Giargiano
that he intended to kill his supervisor, Kim Mickelinc (Mickelinc),
that day. He also told Postmaster Giargiano that the system was win-
ning, he could not handle it any more, and that things would be better
if Mickelinc was dead. Upon arrival at the Medical Center, Jones was
admitted as a psychiatric patient under the care of Dr. Kodali.

Upon returning to the Post Office after transporting Jones to the
Medical Center, Postmaster Giargiano opened the envelope Jones had
given him and read Jones's handwritten letter inside. The letter
appeared to Postmaster Giargiano to be a suicide note. Postmaster
Giargiano notified, among others, the Manager of Human Resources
in the Appalachian District for the Postal Service, James Cox, and
Postal Inspector Steve Randolph (Inspector Randolph) about the letter
and about hearing Jones verbally threaten the life of Mickelinc.

During the next few weeks, the Postal Service investigated the mat-
ter. As part of the investigation, Inspector Randolph submitted a
report dated July 19, 1994 to Dennis Moles, the Acting Manager of
Post Office Operations in Charleston, West Virginia. The report
stated that Patricia Butts (Butts), the Secretary-Treasurer of the East-
ern Panhandle Local Number 4755, American Postal Workers Union
(the Local),1 informed him (Inspector Randolph) that at a union meet-
_________________________________________________________________
1 The Local is chartered by the American Postal Workers Union, AFL-
CIO (the APWU). The APWU is an unincorporated labor organization
with its headquarters in Washington, D.C. At all times relevant to this
appeal, the APWU was recognized by the Postal Service as the exclusive
collective bargaining representative of postal employees in the clerk,
maintenance, and motor vehicle service crafts nationwide pursuant to 39
U.S.C. § 1203. The Local is an autonomous unincorporated labor organi-
zation with its own bylaws and officers.

                    3
ing approximately one week after Jones threatened to kill Mickelinc,
those present unanimously expressed objections to Jones returning to
work. The report also states that Butts informed him that Jones's fel-
low employees would feel very worried and apprehensive if Jones
returned to work. Butts repeated the same information a short time
later to Postmaster Giargiano.

Dr. Kodali discharged Jones from the Medical Center on July 13,
1994 with a discharge diagnosis of schizophreniform disorder and
post traumatic stress syndrome.2 Dr. Kodali's discharge instructions
recommended Jones spend one month convalescing. Postmaster Giar-
giano thereafter authorized advance sick leave for Jones through
August 9, 1994. On a form provided by the Postal Service and dated
August 3, 1994, Dr. Asghar, Jones's treating physician at the Medical
Center for two years, stated that Jones's prognosis was "[f]air to
good," and that Jones could return to work without restriction on
August 13, 1994. Dr. Asghar did state on the form, however, that con-
sideration should be given to reducing the amount of time Jones spent
with the public.

On August 8, 1994, Postmaster Giargiano advised Jones by written
memorandum that effective August 13, 1994 he would be in off-duty
status, without pay, until the Postal Service advised him otherwise.
The memorandum informed Jones that the Postal Service took this
action because his "retention in a duty status may be injurious to
[him]self or others." (J.A. 126). The memorandum then described
Jones's death threat against Mickelinc in detail.

On September 6, 1994, Postmaster Giargiano gave Jones written
notice of his proposed discharge from the Postal Service no sooner
than thirty days from Jones's receipt of the notice. The notice cited
Jones's improper conduct with respect to his death threat against
Mickelinc and his suicide letter. The notice also stated that a letter of
warning dated April 18, 1994, for improper conduct, would be con-
_________________________________________________________________
2 Notably, in response to a letter dated July 5, 1994, by Postmaster
Giargiano to Dr. Kodali asking whether Jones was a possible danger to
other employees, Dr. Kodali stated: "He is not dangerous to himself or
others at this time. However, he is afraid of losing control if he returned
to his office or home." (J.A. 136).

                    4
sidered in deciding whether Jones's proposed discharge should be
sustained by senior Postal Service officials.3 Senior Postal Service
officials sustained the decision to discharge Jones, and Jones was offi-
cially discharged on November 7, 1994.

The Local grieved Jones's discharge through the grievance proce-
dures of the applicable collective bargaining agreement and won a
reversal of his discharge in arbitration. The arbitration award of July
18, 1995, set aside Jones's discharge and converted it to a three-year
medical leave of absence, thus allowing Jones to return to duty when
he passes a fitness-for-duty examination and is no longer collecting
workers' compensation benefits for his mental condition.

On April 3, 1996, Jones filed this action against the APWU in the
United States District Court for the Northern District of West Vir-
ginia, and on April 19, 1996, he amended his complaint to add the
Local as a defendant.4 Jones's complaint alleged that Butts's negative
comments about him to Inspector Randolph and Postmaster Giargiano
were made in her capacity as Secretary-Treasurer of the Local and
were a substantial factor in his discharge. According to Jones's com-
plaint, Butts's comments amounted to intentional discrimination by
APWU and the Local (the Defendants) against an individual with a
disability in violation of the ADA.

On October 16, 1996, the Defendants filed a motion to dismiss the
action for lack of subject matter jurisdiction, see Fed. R. Civ. P.
12(b)(1), and alternatively for summary judgment, see Fed. R. Civ. P.
56(c). In support of their motion to dismiss for lack of subject matter
jurisdiction, the Defendants argued that the district court lacked sub-
ject matter jurisdiction, because (1) they were not"labor organiza-
tions" as that term is defined in the ADA, and therefore not subject
_________________________________________________________________
3 The joint appendix on appeal does not disclose the contents or spe-
cific nature of this letter.
4 He also amended his complaint to add Butts as a defendant but the
district court subsequently dismissed her as a party. Jones has not
appealed that dismissal, and therefore, Butts is not a party to this appeal.

From hereafter we will refer to the APWU and the Local collectively
as the Defendants.

                    5
to suit as covered entities under the ADA, and (2) the Rehabilitation
Act of 1973, 29 U.S.C. §§ 701-796l, which does not subject them to
suit, provided Jones the only means of remedying the allegations in
his complaint. On April 7, 1997, Jones filed a motion for summary
judgment.

On April 25, 1997, the district court denied the opposing motions
and discovery proceeded. On September 12, 1997, the Defendants
renewed their motion for summary judgment, but also reiterated their
arguments asserting lack of subject matter jurisdiction. In an opinion
dated November 12, 1997, the district court: (1) held that it lacked
subject matter jurisdiction over Jones's complaint for the two reasons
argued by the Defendants; (2) granted the Defendants' motion for
summary judgment on that basis; and (3) dismissed the case from its
docket. Jones noted a timely appeal, in which the Equal Employment
Opportunity Commission (the EEOC) has filed an amicus brief.

II.

In this appeal, Jones challenges the district court's determination
that it lacked subject matter jurisdiction over his ADA claims against
the Defendants. Jones has the burden of proving the existence of sub-
ject matter jurisdiction. See Evans v. B.F. Perkins Co., 

,
647 (4th Cir. 1999). The existence of subject matter jurisdiction is a
threshold issue, which this court must address before addressing the
merits of Jones's ADA claim. See Steel Co. v. Citizens for a Better
Env't, 

, 1012-13 (1998) (reaffirming holding that a fed-
eral court may not hypothesize subject matter jurisdiction for the pur-
pose of deciding a case on the merits). We review a district court's
determination that it lacked subject matter jurisdiction de novo. See
Ahmed v. United States, 

, 516 (4th Cir. 1994).

Below, the district court held that it lacked subject matter jurisdic-
tion upon two alternative grounds. First, the district court held that
labor organizations that represent federal employees may not consti-
tute covered entities under the ADA, and therefore are not subject to
suit in federal district court for violations of 42 U.S.C. § 12112(a).
Second, the district court held that the Rehabilitation Act of 1973,
which does not subject the Defendants to suit, provides the exclusive
means by which an employee of the Postal Service may seek redress

                    6
for employment related disability discrimination. We address each of
these grounds in turn.

A. Are Labor Organizations That Represent Federal Employees
         Covered Entities Under the ADA?

Under the ADA "[n]o covered entity shall discriminate against a
qualified individual with a disability because of the disability of such
individual in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation,
job training, and other terms, conditions, and privileges of employ-
ment." 42 U.S.C. § 12112(a) (emphasis added). The ADA defines the
term "covered entity" as "an employer, employment agency, labor
organization, or joint labor-management committee." 

A district court lacks subject matter jurisdiction over an ADA claim
lodged against a defendant that is neither an employer, employment
agency, labor organization, nor a joint labor-management committee
as those terms are defined in the ADA. See Woodward v. Virginia Bd.
of Bar Examiners, 

, 1346 (4th Cir. 1979) (affirming
dismissal of Title VII claim for lack of subject matter jurisdiction
because defendant was neither an "employer," an "employment
agency," nor a "labor organization" as those terms are defined in Title
VII). See also Scarfo v. Ginsberg, 

, 961 (11th Cir. 1999)
(holding that whether defendants constituted "an`employer'" within
Title VII is a question of subject matter jurisdiction); Armbruster v.
Quinn, 

, 1335 (6th Cir. 1983) (same). But see Sharpe
v. Jefferson Distributing Co., 

, 677-78 (7th Cir. 1998)
(holding that question of whether employer has more than fifteen
employees so as to be subject to Title VII is not jurisdictional, but
merits related), abrogated on other grounds by Papa v. Katy Indus-
tries, Inc., 

, 939-40 (7th Cir. 1999); EEOC v. St. Francis
Xavier Parochial Sch., 

, 623-24 (D.C. Cir. 1997) (hold-
ing that question of whether defendant was a covered entity under
ADA is not jurisdictional, but merits related). According to Jones, the
Defendants constitute labor organizations as the term labor organiza-
tion is defined in the ADA. Thus, this appeal presents the question of
whether a labor organization that represents federal employees may
constitute a covered entity under the ADA.

To answer this question, we must first examine the relevant statu-
tory language chosen by Congress to express its intentions. See

                    7
Holloway v. United States, 

, 969 (1999). If the intent
of Congress is clear, then our analysis proceeds no further, for we
"must give effect to the unambiguously expressed intent of Con-
gress." Chevron U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 

, 843 (1984). In the event the statutory provision
or provisions at issue are ambiguous, "the question then becomes one
of whether the interpretation by the agency charged with its adminis-
tration is a permissible one." See Adams v. Dole, 

, 774
(4th Cir. 1991).

As previously stated, Congress defined the term"covered entity"
in the ADA as "an employer, employment agency, labor
organization, or joint labor-management committee," 42 U.S.C.
§ 12111(2) (emphasis added), and expressly incorporated Title VII's
definition of "labor organization," see 

For its part,
Title VII defines "labor organization" as:

          a labor organization engaged in an industry affecting
          commerce, and any agent of such an organization, and
          includes any organization of any kind, any agency, or
          employee representation committee, group, association, or
          plan so engaged in which employees participate and which
          exists for the purpose, in whole or in part, of dealing with
          employers concerning grievances, labor disputes, wages,
          rates of pay, hours, or other terms or conditions of
          employment, and any conference, general committee, joint
          or system board, or joint council so engaged which is subor-
          dinate to a national or international labor organization.

(emphasis added). Title VII goes on to state in a sepa-
rate subsection of its definitional section that a labor organization
"shall be deemed to be engaged in an industry affecting commerce,"
if it maintains a hiring office or has fifteen or more members and falls
within one of the following five categories:

          (1) is the certified representative of employees under the
          provisions of the National Labor Relations Act . . ., or
          the Railway Labor Act . . .;

          (2) although not certified, is a national or international
          labor organization or a local labor organization recog-

                    8
          nized or acting as the representative of employees of
          an employer or employers engaged in an industry
          affecting commerce; or

          (3) has chartered a local labor organization or subsidiary
          body which is representing or actively seeking to rep-
          resent employees of employers within the meaning of
          paragraph (1) or (2); or

          (4) has been chartered by a labor organization representing
          or actively seeking to represent employees within the
          meaning of paragraph (1) or (2) as the local or subordi-
          nate body through which such employees may enjoy
          membership or become affiliated with such labor orga-
          nization; or

          (5) is a conference, general committee, joint or system
          board, or joint council subordinate to a national or
          international labor organization, which includes a labor
          organization in an industry affecting commerce within
          the meaning of any of the preceding paragraphs of this
          subsection.

(emphasis added).

The ADA also expressly adopts Title VII's definitions of "com-
merce" and "industry affecting commerce." See 

Title
VII defines the term "commerce" as "trade, traffic, commerce, trans-
portation, transmission, or communication among the several States;
or between a State and any place outside thereof; or within the Dis-
trict of Columbia, or a possession of the United States; or between
points in the same State but through a point outside thereof." 

Title VII defines an "industry affecting commerce" as
"any activity, business, or industry in commerce or in which a labor
dispute would hinder or obstruct commerce or the free flow of com-
merce and includes . . . any governmental industry, business, or activ-
ity." 

The ADA also defines "employee" and
"employer" in language that closely approximates the definitions of
those terms in Title VII. Compare 42 U.S.C.§ 12111(4)-(5) (ADA),
with 42 U.S.C. § 2000e(b), (f) (Title VII). Notably, both the ADA and

                    9
Title VII's definition of employer expressly exclude the United States
or a corporation wholly owned by the government of the United
States. See 

& 12111(5).

According to the Defendants, when read in concert, the language
of 42 U.S.C. §§ 2000e(b) and 2000e(e) makes plain that a labor orga-
nization that represents federal employees is excluded from Title
VII's definition of the term "labor organization." Subsection
2000e(e), which automatically deems labor organizations to be
engaged in an industry affecting commerce under certain conditions,
contains references to labor organizations representing "employees of
an employer" and "employees of employers." 

Similarly, subsection 2000e(d) provides that the term "labor organiza-
tion . . . includes any organization . . . in which employees participate
and which exists for the purpose, in whole or in part, of dealing with
employers concerning grievances, labor disputes, wages, rates of pay,
hours, or other terms or conditions of employment . . . ." 42 U.S.C.
§ 2000e(d) (emphasis added). Because federal employers are
excluded from Title VII's definition of the term"employer," see 

though covered under the separate provisions of 42
U.S.C. § 2000e-16--labor organizations that represent federal
employees, the Defendants reason, are exempt from Title VII's prohi-
bitions, and by proxy, those of the ADA. This is the analysis relied
upon by the district court in concluding that the Defendants were not
covered entities under the ADA.

Jones and the EEOC as amicus counter that nothing in § 2000e(e)
suggests, let alone makes plain, that it serves as the exclusive means
of establishing that a particular labor organization is engaged in an
industry affecting commerce. They prefer to characterize § 2000e(e)
as merely a descriptive list of certain conditions which, if met, auto-
matically equate to a labor organization engaging in an industry
affecting commerce. Jones and the EEOC argue that the language of
§ 2000e(d) broadly covers labor organizations of all kinds. Therefore,
at a minimum, if a labor organization that represents federal employ-
ees exists for the purpose, in whole or in part, of dealing with the
United States or an agency thereof concerning grievances, labor dis-
putes, and the like, and is engaged in an "industry affecting com-
merce" as that term is defined in § 2000e(h), then that labor
organization is subject to the proscriptions of Title VII and by proxy

                     10
the ADA. Jones and the EEOC point out that an interpretation sub-
jecting labor organizations that represent federal employees to Title
VII and ADA liability fully comports with Congress' primary purpose
in enacting these statutes of eradicating targeted employment discrim-
ination. Furthermore, Jones and the EEOC point out that the opposite
interpretation would lead to the anomalous result, surely not intended
by Congress, of nonfederal employees being allowed to sue their
employers and labor organizations for violations of Title VII and the
ADA, but federal employees only being allowed to sue their
employer.

In support of their interpretation, Jones and the EEOC rely upon
the Eighth Circuit's decision in Jennings v. American Postal Workers
Union, Local 8, 

(8th Cir. 1982). Jennings involved the
Title VII claim of a Postal Service worker who alleged the American
Postal Workers Union, Local 8 "discriminated against her on the basis
of race and sex by not adequately representing her in her grievance
against [the Postal Service]." 

The court stated that "[i]t is
clear that Title VII provides a cause of action against labor organiza-
tions for unlawful employment practices." 

In the court's
view, the fact that the union represented federal employees did not
change the analysis, although the court acknowledged that a labor
organization that represents federal employees could not be sued
under 42 U.S.C. § 2000e-16, which provides for suit against a federal
department or agency. See 

& n.6. The court
stressed, however, that in cases where a labor organization is the
defendant, the federal employee is pursuing a claim under the general
provisions of Title VII prohibiting discrimination by labor organiza-
tions. See 

concluded that although "[§ 2000e-16(c)] is
the exclusive remedy against federal agencies as employers for racial
discrimination, . . . it does not limit the rights of employees against
unions representing federal employees." 

ADA incorporates Title VII's definition of the terms
labor organization, commerce, and industry affecting commerce, our
first task is to determine whether Congress has unambiguously spo-
ken in Title VII as to whether a labor organization that represents fed-
eral employees may constitute a labor organization for purposes of
Title VII. "The plainness or ambiguity of statutory language is deter-
mined by reference to the language itself, the specific context in

                     11
which that language is used, and the broader context of the statute as
a whole." Robinson v. Shell Oil, 

, 341 (1997).

After considering these points of reference, we conclude that Title
VII's definition of labor organization is ambiguous as to whether a
labor organization that represents federal employees may be subject
to liability under Title VII. First, the initial clause of Title VII's defi-
nition of the term "labor organization"--[t]he term `labor organiza-
tion' means a labor organization engaged in an industry affecting
commerce," 42 U.S.C. § 2000e(d)--begs the question of what is the
nature of a labor organization for purposes of Title VII. Second, the
balance of the definition, which uses the term "employer," defined in
§ 2000e(b) as excluding the United States or an agency thereof,
merely provides a nonexclusive list of organizations, agencies,
employee representation committees, groups, associations, or plans
that may constitute a labor organization under Title VII. See West v.
Gibson, 

, 1910 (1999) (holding that Congress' use of
the word "including" in the phrase "through appropriate remedies,
including reinstatement or hiring of employees with or without back
pay," 42 U.S.C. § 2000e-16(b), made "clear that the authorization [of
remedies] is not limited to the specified remedies there mentioned");
Federal Land Bank v. Bismark Lumber Co., 

, 100 (1941)
(opining that "the term `including' is not one of all-embracing defini-
tion, but connotes simply an illustrative application of the general
principle"); Dong v. Smithsonian Inst., 

, 880 (D.C. Cir.
1997) (citing Federal Land Bank for proposition that "the word
`includes' normally does not introduce an exhaustive list but merely
sets out examples of some `general principle'"), cert. denied, 

(1998); 

(recognizing that the term
"including" is "perhaps more often than not the introductory term for
an incomplete list of examples"); 2A Norman J. Singer, Sutherland
Stat. Const. § 47.23 (5th ed. 1992) ("When `include' is utilized [in a
statute], it is generally improper to conclude that entities not specifi-
cally enumerated are excluded.").

The third circumstance creating ambiguity is that Title VII has a
separate section specifically allowing federal employees to sue the
United States for unlawful employment discrimination, but does not
contain a parallel section addressing labor organizations that represent
federal employees. The fourth circumstance creating ambiguity is that

                     12
although § 2000e(e) declares when a labor organization shall be
"deemed" to be engaged in an industry affecting commerce, it does
not purport to define the term "labor organization" itself. Fifth and
finally, the legislative history of Title VII and the ADA is silent
regarding whether a labor organization engaged in an industry affect-
ing commerce and that represents federal employees is subject to their
respective proscriptions.

Because we conclude Title VII's definition of labor organization is
ambiguous as to whether a labor organization that represents federal
employees may be subject to liability under Title VII, we turn to con-
sider the deference this court should afford the interpretation prof-
fered by the EEOC, the agency charged with primary responsibility
for enforcement of Title VII. See Tinsley v. First Union Nat'l Bank,

, 441 (4th Cir. 1998). The level of deference that this
court should afford the EEOC's proffered interpretation "will depend
upon the thoroughness evident in its consideration, the validity of its
reasoning, its consistency with earlier and later pronouncements, and
all those factors which give it power to persuade, if lacking power to
control." 

marks omitted).

The law is well settled that an agency's interpretation of a statute
with which it has been charged with administering and which has
been reduced to a regulation is to be fully accepted by a court as long
as Congress has not directly spoken as to the precise question at issue
and the interpretation proffered by the agency is a permissible one.
See 

. This level of deference has come
to be known as Chevron deference. We have previously extended
Chevron deference to an agency's interpretation of a statute that had
not been reduced to a formal regulation, but that had been announced
only in Administrative Notices sent to other agencies with which it
worked. See Warren v. North Carolina Dep't of Human Resources,

, 391 (4th Cir. 1995). Furthermore, we have previously
extended Chevron deference to an agency's interpretation of statutory
language proffered only in the agency's amicus brief before this
court. See Molinary v. Powell Mountain Coal Co. , 

, 235-
36 (4th Cir. 1997), cert. denied, 

(1998).

Here, the EEOC has proffered its interpretation of the relevant pro-
visions of Title VII in the form of an amicus brief before this court.

                    13
But under the circumstances of this appeal, this fact does not make
it unworthy of deference, because the EEOC's position is in no sense
a post hoc rationalization advanced to defend its past action against
attack, and there is simply no reason to suspect that the proffered
interpretation does not reflect the EEOC's fair and considered judg-
ment on the statutory interpretation questions at hand. See Auer v.
Robbins, 

, 462 (1997) (the fact that the Secretary of
Labor's interpretation of its own regulation was proffered to the
Supreme Court in the form of an amicus brief filed at the request of
the Court did not make it unworthy of deference, because the Secre-
tary's position was in no sense a post hoc rationalization advanced by
an agency seeking to defend past agency action against attack, and
there was simply no reason to suspect that the proffered interpretation
did not reflect the Secretary's fair and considered judgment on the
matter in question). Rather, under the circumstances of this case, we
believe full Chevron deference is appropriate. After reading the
EEOC's brief and listening to its presentation at oral argument, we are
convinced the EEOC thoroughly considered the statutory interpreta-
tion issues at hand.5 Furthermore, as we will explain in greater detail
momentarily, we find its reasoning valid. Additionally, the EEOC's
position is consistent with its express agreement in its Compliance
Manual with the Eighth Circuit's holding in Jennings. See EEOC
Compliance Manual, Vol. II, § 605, App. 605-N (issued January 29,
1998). Finally, there is no evidence that the EEOC's proffered inter-
pretation is inconsistent with an earlier or later pronouncement.

Having determined that the EEOC's interpretation is entitled to full
Chevron deference, we must next determine whether the EEOC's
proffered interpretation is "based on a permissible construction of the
statute." 

. If it is, then we must sustain the
EEOC's interpretation. See 

. We have no
trouble in concluding that it is. Section 2000e(d) can reasonably be
interpreted to mean that, at a minimum, if a labor organization repre-
senting federal employees exists for the purpose, in whole or in part,
of dealing with the United States or an agency thereof concerning
grievances, labor disputes, and the like of the federal employees it
represents and is engaged in an "industry affecting commerce" as that
_________________________________________________________________
5 In this regard, we note that Jones ceded nearly the full amount of his
time to present oral argument to the EEOC.

                    14
term is defined in § 2000e(h), then that labor organization is subject
to the proscriptions of Title VII and by proxy the ADA. This interpre-
tation fully comports with Congress' primary purpose in enacting
those statutes of eradicating certain employment discrimination. Such
an interpretation avoids the anomalous result, surely not intended by
Congress, of nonfederal employees being allowed to sue their
employer and labor organizations for violations of Title VII and the
ADA, but federal employees only being allowed to sue their
employer.

There is no dispute in this case that the Defendants represent fed-
eral employees and exist for the purpose in whole or in part of dealing
with the Postal Service concerning grievances, labor disputes, and the
like. Furthermore, the Defendants' significant representational activi-
ties on behalf of Postal Service employees fully support the conclu-
sion that the Defendants are engaged in activities in commerce. See
42 U.S.C. § 2000e(h). Accordingly, the Defendants constitute labor
organizations for purposes of Title VII liability and by proxy the
ADA.

B. Does the Rehabilitation Act of 1973 Provide the Exclusive
         Means of Remedying Disability Discrimination in Federal
         Employment?

As an alternative basis of challenging the district court's subject
matter jurisdiction, the Defendants argue that 29 U.S.C. § 791 is the
exclusive means by which a federal employee can remedy disability
discrimination in connection with his or her federal employment. In
§ 791, Congress provided for employment of disabled individuals by
federal departments, agencies, and instrumentalities and the formation
of affirmative action plans in federal employment. In 29 U.S.C.
§ 794a(a)(1), Congress provided that the "remedies, procedures, and
rights set forth in section 717 of the Civil Rights Act of 1964 (42
U.S.C. § 2000e-16) . . . shall be available, with respect to any com-
plaint under section 791 of this title, to any employee or applicant for
employment aggrieved by the final disposition of such complaint, or
by the failure to take final action on such complaint." Because
§ 2000e-16(b) sets forth that federal employees alleging employment
discrimination may file civil actions in which "the head of the depart-
ment, agency, or unit, as appropriate, shall be the defendant," the

                    15
Defendants argue that Jones is implicitly prohibited from filing a civil
action against them alleging disability discrimination under the ADA.

In support of their argument, the Defendants rely on the Supreme
Court's decision in Brown v. General Servs. Admin., 

(1976). Brown involved an employee of the General Services Admin-
istration (GSA), Clarence Brown (Brown), who believed that he was
the victim of race discrimination in failing to be promoted. See 

Brown sought administrative relief through GSA, but to no avail.
Forty-two days after GSA rendered its final decision denying Brown
administrative relief, Brown filed suit against the GSA in federal dis-
trict court. See 

Brown alleged claims of race discrimina-
tion under § 2000e-16 and 42 U.S.C. § 1981. See 

. The district court dismissed the action for lack of subject matter
jurisdiction. The Supreme Court affirmed on the basis that § 2000e-16
"provides the exclusive judicial remedy for claims of discrimination
in federal employment," and Brown failed to file his civil action
within thirty days of the final decision of GSA as required by
§ 2000e-16(c). 

The Defendants seize upon the language just quoted from Brown
in making their exclusivity argument. See Newbold v. USPS, 

, 47 (5th Cir. 1980) (opining without further discussion that "the
Brown court's broad language on preemption and exclusivity suggests
that there is no cause of action against individuals under § 1981 . . .").
In this regard, the Defendants miss the mark by a wide margin
because the Supreme Court's holding presupposes that the suit at
issue is only lodged against an agency of the federal government. The
heart of the issue in the case was whether Congress intended to pre-
clude a federal employee from alleging a civil rights violation against
the federal government, with respect to his employment under the
general civil rights statute codified at § 1981, by enacting a statute
specifically providing federal employees with a mechanism for suing
the federal government for employment discrimination by naming the
appropriate department, agency, or unit head. In holding in the affir-
mative, the Court considered and relied upon the relevant legislative
history of § 2000e-16, the language of § 2000e-16, the sovereign
nature of the United States, and the cannon "that a narrowly tailored
employee compensation scheme pre-empts the more general tort
recovery statutes." 

. Moreover, the fact that a

                     16
federal employee would be able to circumvent the rigorous adminis-
trative exhaustion requirements of § 2000e-16 by suing the federal
government under § 1981 motivated the Court's holding. See 

Significantly, in the present appeal, no sovereign immunity
concerns are present, and Jones was not allowed to escape the rigors
of exhausting his administrative remedies. Thus, the Court's rationale
in Brown is simply inapplicable to the present appeal.

Because we hold the district court possessed subject matter juris-
diction over Jones's ADA claims against the Defendants, we vacate
the district court's dismissal of his complaint for lack of subject mat-
ter jurisdiction.

III.

Although Jones wins the battle over subject matter jurisdiction, he
ultimately loses the war. The district court should have granted the
Defendants' motion for summary judgment. The law is well settled
that the ADA is not violated when an employer discharges an individ-
ual based upon the employee's misconduct, even if the misconduct is
related to a disability. See Martinson v. Kinney Shoe Corp., 

, 686 n.3 (4th Cir. 1997); Collings v. Longview Fibre Co., 

, 832-33 (9th Cir. 1995); Despears v. Milwaukee County, 

, 637 (7th Cir. 1995); Maddox v. University of Tenn., 

,
846-48 (6th Cir. 1995); cf. Little v. FBI, 

, 259 (4th Cir.
1993) (finding no liability under the Rehabilitation Act of 1973 when
firing for disability related intoxication on duty). Assuming Butts
made the alleged discriminatory comments at issue to Postal Service
officials and she represented the Defendants in doing so, there is
absolutely no evidence to suggest that the Postal Service discharged
Jones for any reason other than the fact that he threatened the life of
his supervisor. Because the ADA does not require an employer to
ignore such egregious misconduct by one of its employees, even if the
misconduct was caused by the employee's disability, we remand this
case to the district court for entry of judgment in favor of the Defen-
dants.

                     17
IV.

In conclusion, we vacate the district court's dismissal of Jones's
ADA claims against the Defendants and remand for entry of judgment
in their favor.6

VACATED AND REMANDED
_________________________________________________________________
6 Finding no merit to Jones's motion to strike the Defendants' opposi-
tion brief to the EEOC's amicus brief, we deny the motion.

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