MEMORANDUM OPINION AND ORDER
Plaintiff Hilary Anderson brings this employment-based action against the following defendants: the Illinois Bell Telephone Company, now known as Ameritech Illinois and Ameritech (collectively, “Ameritech”); the Ameritech Sickness Disability Benefits Plan (“ASDBP”); and the Ameritech Comprehensive; Health Care Plan (“ACHCP”). She brings claims under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, against Ameritech only (Count I); Title I of the Americans with Disabilities Act of 1990 (“ADA”) and Title I of the Civil Rights Act of 1991 against Ameritech only (Count II); the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132(a), against Ameritech and the ASDBP (Count III); the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), 29 U.S.C. § 1161, against Ameritech and ACHCP or, alternatively, against Ameritech alone under 29 U.S.C. §§ 1132(a)(2) and (3) (Count V); and state law claims alleging common law breach of contract and violations of the Illinois Wage Payment and Collection Act, 820 ILCS 115/4, against Ameritech only (Count IV). Pending before the court is the defendants’ motion to dismiss various aspects of Counts II through V.
RELEVANT FACTS
Anderson’s first amended complaint alleges the following facts which are taken as true on a motion to dismiss.
Doherty v. City of Chicago,
Due to illness, Anderson went on sick leave in early November 1992. Anderson’s last day of active work was November 6, 1992, and she began collecting disability benefits under the ASDBP on November 17, 1992. Anderson was eligible to receive these benefits for one full year. Ameritech prematurely stopped the payment of benefits to Anderson on November 1, 1993, at which time Anderson requested payment of benefits through November 17,1993. In addition, Anderson sought an extension of benefit payments through November 30, 1993. This request was submitted to the Ameritech Employees’ Benefit Committee and was subsequently approved in March 1994. Despite the Committee’s approval, however, Anderson has never received benefits for the period of November 1, 1993 through November 30,1993.
On November 17, 1993, Anderson sent a letter to Ameritech stating that she would be ready, willing, and able to return to work as of December 1, 1993. Athough Anderson had not resigned and continued to await assignment, Ameritech failed to assign any duties to her. During the spring of 1994, Ameritech sent Anderson letters congratulating her on completing 15 years in service, and other materials designed for current employees. Ameritech terminated Anderson’s employment on June 28, 1994. On July 7, 1994, Ameritech sent Anderson a notice informing her of her right to elect continuing life insurance coverage. Ameritech filled *1211 Anderson’s position with individuals under the age of forty.
Anderson called Ameriteeh every month beginning in July, 1994 with questions regarding her health insurance coverage. Until October 18, 1995, Ameriteeh and the ACHCP continuously advised Anderson that she was covered under the ACHCP. On October 11, 1995, Anderson’s doctor verified Anderson’s coverage under the ACHCP. Anderson’s doctor then scheduled Anderson for surgery which was performed on October 16, 1995. In November of 1995, Anderson learned that the ACHCP refused to pay for her surgery, as her health care coverage had been retroactively canceled effective October 1, 1995. Upon cancellation of Anderson’s health care coverage, neither Ameriteeh nor the ACHCP provided Anderson with notice of her right to elect continuation or conversion health insurance coverage.
LEGAL STANDARDS
In considering a motion to dismiss, a court takes all well-pled factual allegations as true, and views those allegations and any reasonable inferences drawn from them in the light most favorable to the plaintiff.
Doherty v. City of Chicago,
When ruling on a motion to dismiss, a court may consider exhibits attached to the complaint. Fed.R.Civ.P. 10(e) (“A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.”);
Schnell v. City of Chicago,
ANALYSIS
The defendants have not raised any arguments as to Count I in this motion to dismiss. Thus, the court will first consider the defendants’ motion as it relates to Count II, followed by Counts III, V, and IV in that order.
Count II: Damages Recoverable Under the ADA
In Count II, Anderson alleges that Ameri-tech violated the ADA and the Civil Rights Act of 1991. Anderson prays for compensatory damages in an unspecified amount as well as punitive damages in the amount of $300,000. Ameriteeh states that the ADA limits recovery of compensatory and punitive damages to a combined total amount of $300,000. Ameriteeh moves to strike Count II to the extent that it seeks damages in excess of the statutory limit.
Anderson has conceded, as she must, that the statutory limit on damages for a violation of the ADA by an employer with more than 500 employees is $300,000. 42 U.S.C. § 1981a(b)(3)(D) (1997). Ameriteeh responds to Anderson’s concession by arguing that Count II should be stricken in its entirety and Anderson should be required to amend her complaint to comport with the damage limitations of the ADA. Rather than requiring the plaintiff to amend her complaint, this Court prefers to simply strike the unavailable remedy.
See Cabin v. Plastofilm Indus., Inc.,
No. 96 C 2564,
Count III: Recovery of November 1993 Benefits
In Count III, Anderson claims that Ameri-tech and the ASDBP violated ERISA by failing to provide her with benefits for the period of November 1, 1993 through November 30, 1993 after the plan administrator agreed to do so. She seeks to recover these benefits pursuant to 29 U.S.C. § 1132(a)(1)(B). Ameriteeh requests dismissal from Count III, arguing that the only permissible defendant under § 1132(a)(1)(B) *1212 is the benefit plan. Anderson’s response is twofold. First, Anderson asserts that Amer-iteeh is a proper defendant in an action for the recovery of benefits because “Ameritech is the fiduciary that provides the services to maintain the ASDBP” and fiduciaries are proper defendants under ERISA. Second, Anderson contends that since the payment of benefits under the ASDBP is provided by Ameritech, Ameritech will be the ultimate cost bearer anyway, and thus will not suffer any harm if retained as a defendant.
Section 1132(a)(1)(B) states that an ERISA plan beneficiary may bring a civil action “to recover benefits due to him under the terms of the plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B) (1997). It is well established that the proper defendant to a § 1132(a)(1)(B) suit is the plan.
Jass v. Prudential Health Care Plan, Inc.,
Anderson does not attack the inherent limitations on who may be sued under § 1132(a)(1)(B). Rather, Anderson argues that Ameritech is a proper defendant because ERISA allows for civil actions against the fiduciary of the plan. By endeavoring to detain Ameritech as a defendant based on Ameritech’s fiduciary relationship with the ASDBP, assuming arguendo that such a relationship exists, Anderson implicitly attempts to recast her claim against Ameritech as one for breach of fiduciary duty. Although subsections of § 1132 other than (a)(1)(B) allow a breach of fiduciary action to be brought by a participant of the benefit plan, Anderson has not pled such a claim. Even aside from the fact that she specifically identifies subsection (a)(1)(B), and not the other subsections, as the source of her claim, the allegations of Count III do not support a claim for breach of fiduciary duty under either of the other subsections.
In
Anweiler v. American Elec. Power Serv. Corp.,
Moreover, Count III cannot be read to state a claim under § 1132(a)(2). Subsection (a)(2) provides that a plan participant may commence a civil action against a plan fiduciary for breach of fiduciary duty as described in 29 U.S.C. § 1109. Section 1109(a) states that a fiduciary who breaches any of the duties imposed upon a fiduciary with regards to a benefit plan “shall be personally liable to make good
to such plan
any losses
to the plan ...
and to restore
to such plan
any profits of such fiduciary which have been made through use of assets of the plan by the fiduciary.” 29 U.S.C. § 1109 (emphasis
*1213
added). As can easily be seen, relief under § 1109 may only be granted to the plan, not to individuals, and § 1132(a)(2) is subject to the same limitation.
Anweiler,
The only other section of ERISA which would allow Anderson to bring an action for breach of fiduciary duty is 29 U.S.C. § 1132(a)(3). In
Kessen v. Plumbers’ Pension Fund,
Anderson’s second argument as to why Ameriteeh should remain a defendant to Count III proves even less fruitful than her first. Anderson proposes, without providing any support, that the limitations of ERISA should be disregarded and Ameriteeh should remain a defendant in Count III because doing so will not impose any harm upon Ameriteeh. Without determining the impact that would befall Ameriteeh if retained as a defendant in Count III, we reject Anderson’s argument as inconsistent with the stated provisions of ERISA. The Court finds that Ameriteeh is not a proper defendant under § 1132(a)(1)(B), and that claims under §§ 1132(a)(2) and 1132(a)(3) are precluded by the relief Anderson requests. We therefore dismiss Ameriteeh from Count III.
Count V: Continuation/Conversion Coverage
Count V comprises Anderson’s claims arising from the manner in which the defendants first provided and then canceled her health insurance, all without proper notice of her rights to continuation and conversion coverage as required by the COBRA amendments to ERISA, 29 U.S.C. §§ 1161-68. Anderson alleges that Ameriteeh repeatedly informed her that it was voluntarily maintaining her former health insurance coverage. After almost a year and a half of doing so, Ameriteeh abruptly canceled that coverage, without providing her with notice or the opportunity to elect further coverage under COBRA, just as she was undergoing expensive surgery. Anderson brings Count V against both Am-eritech and the ACHCP, contending that both were required to provide her with notification of continuation and conversion coverage within specified time periods after her termination from Ameriteeh. Alternatively, Anderson alleges that Ameritech’s failure to provide that notice amounted to a breach of fiduciary duty under 29 U.S.C. §§ 1132(a)(2) and (3). Anderson seeks injunctive relief and damages arising from these actions and omissions. The defendants have moved to dismiss the ACHCP from Count V, arguing that COBRA does not place any duty on a health care plan to provide notification of continuation coverage to a terminated employee. We conclude that, indeed, a plan such as the ACHCP is not required to provide notice of either continuation or conversion coverage to a terminated employee.
COBRA draws a distinction between continuation and conversion coverage.
Reynolds v. Massachusetts Cas. Ins. Co.,
Continuation coverage possesses two advantages over conversion coverage. The first lies in the type of coverage required under each option. Section 1162(1) mandates that continuation coverage “must consist of coverage which ... is identical to the coverage provided under the plan to similarly situated beneficiaries” who have not been terminated. 29 U.S.C. § 1162(1). In other words, Anderson was entitled to the same exact coverage for a period of eighteen months after her termination that she received prior to her termination. No such “identical” coverage language appears in § 1162(5) for a conversion health plan. Section 1162(5) only requires that the employee be provided with the “option of enrollment under a conversion health plan.”
Id.
§ 1162(5). The conversion health plan need not be as comprehensive as the continuation health plan.
King v. Provident Life & Accident Ins. Co.,
The second advantage that continuation coverage holds over conversion coverage is the cost of each type of coverage. The continuation coverage mandated in COBRA is for a continuation of coverage at approximately the group rate.
Local 217, Hotel & Restaurant Employees’ Union v. MHM, Inc.,
In Count V, both continuation and conversion coverage are at issue. Anderson alleges that Ameritech and the ACHCP have breached their statutory duties to inform her of her option to purchase each type of coverage. We conclude that the ACHCP is not liable to Anderson under either of these claims.
A comprehensive list of notice requirements for post-employment health care coverage is provided in 29 U.S.C. § 1166. Section 1166 does not place any post-termination duty of notification on the plan. 3 Rather, § 1166(a)(2) declares that “the employer of an employee under a plan must notify the administrator of a qualifying event” such as termination. Id., § 1166(a)(2). Once the employer notifies the administrator of the qualifying event, the administrator then has a duty to notify the employee of the employee’s rights. Id. § 1166(a)(4)(A).
Applying § 1166 to the present case, Ameritech, as Anderson’s employer, was required to notify the plan administrator of Anderson’s termination. The plan administrator was then obligated to notify Anderson of the qualifying event which triggered her right to elect continuation coverage. Anderson’s complaint does not explicitly identify the plan administrator. However, Exhibit B to Anderson’s first amended complaint is a letter informing Anderson that the Ameritech Employee Benefits Committee (“AEBC”) approved a payment of benefits to Anderson on March 25, 1994. This letter creates a reasonable inference that the AEBC is the plan administrator. The AEBC, or possibly Ameritech, would then be the proper defendant to Anderson’s claim of a failure to notify her of the right to elect continuation coverage. But the ACHCP had no statutory duty to notify Anderson of her right to continuation coverage, and thus is not a proper defendant to that claim.
Nor did the ACHCP have any statutory duty to notify Anderson of her option to enroll in a conversion health insurance plan. COBRA decrees that when “continuation coverage expires ... the plan must, during the 180-day period ending on such expiration date, provide to the qualified beneficiary the option of enrollment under a conversion health plan.” 29 U.S.C. § 1162(5). The key question is whether the language “provide *1215 ... the option” merely requires a health plan to have conversion coverage available, or whether the plan must also notify the beneficiary of the option to elect that coverage at the expiration of continuation coverage.
One of the few cases to consider whether § 1162(5) contains an implicit post-termination notification requirement is
O’Brien v. Rifkin, Radler & Kremer,
No. 95 C 5923,
In O’Brien, the court was “hesitant to hold that a statute requires notice when the statute itself clearly does not use the words ‘notice’ or ‘notify.’” 5 Id. at *3. Lack of “notice” language, however, does not definitively resolve this issue. It must be noted that § 1161(a), which establishes a qualified beneficiary’s right to continuation coverage, also does not use any “notice” language. Similar to § 1162(5), § 1161(a) merely states that the plan sponsor shall provide the qualified beneficiary with the option to elect continuation coverage under the plan. The critical difference in the duty of' notification between the continuation and conversion sections is made clear in the “notice requirements” provision of COBRA, 29 U.S.C. § 1166. Whereas § 1166 explicitly imposes a requirement on the employer and the plan administrator to notify an employee of the option to elect continuation coverage in a situation where termination of the employee would lead to the end of the employee’s *1216 coverage, there is no mention of any notification requirement for conversion coverage. Indeed, as noted above, even the notification requirements for continuation coverage do not impose any post-termination duty on the plan. The comprehensive nature of COBRA, in conjunction with the plain language of § 1162(5), thus strongly suggests that there is no duty to notify a terminated employee of the right to conversion coverage. We therefore hold that § 1162(5) did not require the ACHCP to notify Anderson after her termination of her option to enroll under a conversion health plan. Thus, the ACHCP is not a proper defendant to any portion of Count V.
Ironically, Anderson defends against this conclusion by pointing to Ameritech’s contention in Count III that the proper defendant to a claim brought to recover benefits under § 1132(a)(1)(B) is the plan. Anderson posits that because she also brings Count V pursuant to § 1132(a)(1)(B), the ACHCP is the proper defendant to Count V and should not be dismissed. The problem with this argument is that it ignores the lack of any underlying claim against the ACHCP.
The ACHCP has moved to dismiss Count V for failure to state a claim upon which relief can be granted. Anderson’s claim against the ACHCP alleges that the ACHCP violated the notification requirements of COBRA. As we have decided that the ACHCP had no duty to notify Anderson of her options for either continuation or conversion coverage, it is clear that Count V fails to state a claim upon which relief can be granted against the ACHCP. If Count V had stated a claim upon which relief could be granted against the ACHCP, then the vehicle for bringing that action would be § 1132.
Hamilton v. Mecca, Inc.,
Anderson’s last attempt to avoid the dismissal of the ACHCP from Count V simply reiterates her harm argument in Count III. Here Anderson contends that the ACHCP should remain a defendant to Count V because the ACHCP may ultimately bear the responsibility of paying her medical claims. As in Count III, this argument for denying the ACHCP’s motion to dismiss is unsupported by ease law or any provision of ERISA and the Court once again rejects it. Anderson fails to state a claim against the ACHCP upon which relief can be granted, and accordingly we dismiss the ACHCP from Count V.
Count IV: State Law Claims
Anderson alleges that Ameritech failed to pay her wages for the period of December 1, 1993 through June 28, 1994. In Count IV, she claims that this failure violated the Illinois Wage Payment Collection Act (“IWP-CA”), and also breached her oral contract of employment with Ameritech. In response, Ameritech first argues that Count IV is insufficient as a matter of law, because the IWPCA only allows for recovery of wages and benefits actually earned through the performance of work. Since it is clear from the complaint that Anderson did not engage in any actual labor for Ameritech during the time period in question, Ameritech contends that Anderson is not entitled to any compensation for that time period. Ameritech also argues that the documents that Anderson attached to her complaint mean that an oral contract cannot have existed between Anderson and Ameritech under Illinois law. Ameritech bases this contention on the proposition that an “implied oral contract” cannot be created when written documents exist between the parties on the same subject matter. The Court will consider Ameritech’s latter argument first.
We initially note that Ameritech fails to identify the legal basis for its argument. “It is not the role of this court to research and construct the legal arguments open to parties, especially when they are represented by counsel.”
Doherty v. City of Chicago,
Under Illinois law, if the parol evidence rule does not apply to the case at hand, but documents, nevertheless, do exist and those documents are “construed as part of the contract — and the contract is thus found to be partly written and partly oral— then the law governing oral contracts [applies].”
Respect Inc. v. Committee on the Status of Women,
In the present case, Anderson has attached four documents to her first amended complaint which she claims evidence the existence of an oral contract. These exhibits include a letter from Ameriteeh to Anderson stating that Anderson’s sickness disability benefits would be extended (Ex. B), a letter from Ameriteeh to Anderson congratulating her for fifteen years of service with Ameriteeh (Ex. E), a follow up letter from Ameriteeh to Anderson reminding Anderson that she was eligible to receive an award for her fifteen years of service (Ex. F), and a pamphlet entitled “Your Personal Statement of Benefits” (Ex. G). In addition, Anderson has alluded to certain written records, including payroll records, which Ameritech allegedly has in its possession. Neither Anderson nor Ameritech contends that these documents constitute a written contract. Rather, Anderson asserts that the documents are evidence of the existence of an oral contract. Whether an oral contract exists is a matter to be decided by the trier of fact.
Sanchez v. Walls,
We now turn to the defendants’ remaining argument under Count IV. Ameriteeh asserts that Anderson cannot recover wages under the IWPCA because she performed no work for Ameriteeh during the period for which she seeks wages, and application of the IWPCA is contingent on an employee actually performing services. A careful reading of the IWPCA shows, however, that nothing in it limits its reach to comport with Ameritech’s interpretation. The IWPCA defines wages as “compensation owed the employee by the employer pursuant to an employment contract or agreement between the 2 parties.” 820 ILCS 115/2 (1997). In fact, the Illinois legislature amended the IWPCA in 1984 to eliminate from the definition of wages the phrase “compensation for labor or services rendered.” P.A. 83-198, § 1 (1984).
One of the few courts to address the issue Ameriteeh raises held that to be consistent with the legislative intent, the term “wages” must be broadly construed to encompass a wide range of compensation due employees.
*1218
Shields v. Associated Volume Buyers, Inc.,
No. 93 C 7620,
In opposition, Ameritech cites
Camillo v. Wal-Mart Stores, Inc.,
CONCLUSION
For the foregoing reasons, the defendants’ motion to strike and dismiss is granted in part and denied in part. The motion to strike Anderson’s request in Count II for damages in excess of $300,000 is granted. Count III is dismissed as to defendant Amer-itech only. Count V is dismissed as to defendant ACHCP only. In the event that discovery demonstrates a proper basis to reinstate these defendants to Counts III and V, the plaintiff may seek leave of court to move for such reinstatement. The motion to dismiss is denied with respect to Count IV.
Notes
. Ameritech and Anderson each cite
Auto Club Ins. Ass’n v. Safeco Life Ins. Co.,
. An action for breach of fiduciary duty may also be brought under subsection (a)(3) of § 1132.
Kessen v. Plumbers’ Pension Fund,
. Section 1166(a)(1) does obligate the plan to “provide, at the time of commencement of coverage under the plan, written notice to each covered employee and spouse of the employee (if any) of the rights provided under this subsection.” 29 U.S.C. § 1166(a)(1) (emphasis added). Anderson has not alleged any failure to comply with this provision.
. There is a line of Fifth Circuit cases, including
Baker v. Washington Nat. Ins. Co.,
A company can state in its contract that it will offer a specific level of coverage in its conversion policy.... It can attach the conversion policy it will issue to the group policy. It can refer to a form of conversion policy on file with the employer or the state insurance authority. It can delineate what particular risks it will cover or exclude in any conversion policy it may issue.
Baker,
. In addition to relying on the plain language of § 1162(5) to decide that no notice requirement exists for that section,
O’Brien
also gave a substantial amount of deference to the Second Circuit’s holding in
Howard v. Gleason Corp.
A careful reading of
Howard
yields some doubt as to whether that court confronted the issue presented in
O’Brien
and in this case. While
Howard
does use the term "conversion,” it is not used in the same context as conversion coverage under § 1162(5). First,
Howard
neglects to specify the particular provision of ERISA that it is analyzing. Second, § 1162(5) speaks of conversion coverage as coverage that follows an eighteen-month continuation coverage period, but in
Howard,
the coverage referred to followed immediately after termination.