Colleen v. Ford v. Schering-Plough Corporation Schering Corporation Metropolitan Life Insurance Company

Knight, trier of fact.” Government V.I. v. motion in Lauria’s limine to exclude Slaviris (3d Cir.1993). personnel 989 F.2d and medical records. opinion slipped Boselli’s that Lauria on an piece easily extra of wood on the tracks V. permissive satisfies these standards. His The district court abused its discretion testimony would have shown the existence of excluding testimony of Robert T. Slavin an unforseen obstruction the exact location witness, expert as an by prohibiting Lau- fell, which, turn,

where Lauria could have recalling ria from Carl Boselli to the stand as jury determining assisted the whether the lay opinion Accordingly, witness. the dis- posed danger wood an unreasonable to rail- trict court’s Order dated March will employees crossing road the tracks. Re- reversed, and the cause will be remanded gardless of what other evidence had been for a trial opinion. new consistent with trial, presented Boselli’s statements would jury have informed the as to issues of track safety

maintenance and encountered in the course,

ordinary would identified

potential hazard that was central to Lauria’s Moreover,

theory negligence. nothing suggests

the record that Boselli lacked the

experience specialized knowledge needed opinion

to render an this issue. regard, materially the instant case differs FORD, Appellant, Colleen V. Asplundh Mfg. Div. v. Benton Harbor (3d Eng’g, Cir.1995), 57 F.3d lay opinions

where we held on technical CORPORATION; SCHERING-PLOUGH matters such as causation “must derive from Schering Corporation; Metropolitan sufficiently qualified source as to be reli- Company Life Insurance helpful jury.” able and hence No. 96-5674. Accordingly, we conclude that the district by prohibiting court erred Lauria from re- Appeals, United States Court of stand, calling Boselli to the because Boselli’s Third Circuit. lay opinion testimony certainly would have Argued Jan. 1998. “helpful”

been to the “determination of a fact meaning in issue” within the of Rule 701. May Decided 1998. Also, given prof- the substance of Boselli’s testimony fered in the context of Lauria’s

case, we cannot conclude that the court’s in excluding testimony

error Boselli’s Holbrook,

harmless. See

IV. cross-appeal challeng-

Amtrak has filed rulings, several of the district court’s but reject agree these contentions because we

substantially reasoning with the of the dis-

trict court. We will thus affirm the Febru-

ary denial of Amtrak’s renewed summary judgment,

motion for the March

24, 1997, denial of Amtrak’s motion in limine Mariani, testimony

to exclude the of John

D.O., Weisband, D.O., I. David and Robert T.

Slavin, 24, 1997, grant and the March Campion (Agued)

Thomas F. John D. Cle- men, Fisher, & Shanley Morristown, NJ, Appellee Sehering Plough Corporation. Schindel, Fagin, Aen I. Aaron J. Ronald Proskauer, Rose, Rauchberg, S. Goetz & Mendelsohn, City, New York Alan M. Mar- cus, (Agued) Metropolitan Life Insurance Company Department Law One Madison Av- City, Hirsch, enue New York Sondra M. Metropolitan Company, Life Insurance Ruth- erford, NJ, Appellee Metropolitan for Life Company. Insurance MANSMANN, Before: COWEN and ALITO, Judges. Circuit OPINION THE OF COURT COWEN, Judge. Circuit appeal presents purely legal ques- tion of whether a physical benefits for mental and disabilities violates the Americans with Disabilities Act 1990(ADA), seq. 12101 et plaintiff-appellant, Ford, Colleen employer, Schering-Plough sued her Corpo- (Sehering), ration and the carrier of Scher- ing’s group policy, insurance Metropolitan (MetLife), Life Company Insurance alleging two-year cap applicable that the to benefits disabilities, for mental physical but not for disabilities, September violates the ADA. On 12,1996, the District Court for the District of Jersey granted New the defendants’ motion complaint to dismiss Ford’s under Federal 12(b)(6). Rule of ap- Civil Procedure Ford Wilentz, (Agued) Maureen S. Binetti pealed. affirm We will the order of the Spitzer, NJ, Woodbridge, Goldman & Ap- for dismissing district court complaint Ford’s pellant Colleen V. Ford. though even we differ with the district court Gregory (Agued), Robert J. Washington, by finding eligible to file suit under DC., Amicus-Appellant Equal Employ- for Title I of the ADA. Opportunity ment Commission. Fischel, Williams, Come L. McGuiness & I. DC, Washington, Amicus-Appellee Equal for concerning employ- facts Employment Advisory Council. ment dispute. and her are not in Dunn, Jones, Day, Patricia A. Reavis & employee Sehering Ford was an from 1975 DC, Pogue, Washington, Amicus-Appel- for May until when she became disabled lee American Life Council Insurance. by virtue of a mental un- disorder and was Johnson, Cooper, Steptoe Ronald employment. S. & able to continue her While she DC, Washington, Amicus-Appellee employee, Aso- served as an Ford enrolled in the ciation of employee Private Pension Ad Welfare Plans welfare benefits offered Blue Cross and Blue Sehering through plan provid- Shield Asociation. MetLife. The A. physical disabilities

ed that benefits until the disabled would continue alleges that the defen- first claim long physical as the age sixty-five so reached I of plan violates Title group dants’ Regarding mental dis- disability persisted. disparity in benefits the ADA because of abilities, however, mandated Ti- disabilities. between mental years two if disabled after benefits cease proscribes discrimination tle the ADA I of found hospitalized. Ford employee was not employment and and conditions of terms category, suffering from in this latter herself part: in relevant mandates yet hospitalized a mental disorder (a) rule General bene- a continuation of her ineligible for thus two-year limit. Her benefits past fits entity No shall discriminate 23,1994. Nov. expired on a against qualified a individual with disabil- disability individ- of the ity because charge with a of discrimination Ford filed job application procedures, regard ual Equal Opportunity Com- Employment advancement, discharge hiring, (EEOC). her issued EEOC mission compensation, job employee 31, employees, January “right-to-sue” letter conditions, terms, training, and other Subsequently, a three-count com- Ford filed privileges employment. alleging Schering plaint against and MetLife of the ADA. in violation discrimination (b) Construction com- to dismiss the filed motions defendants (a) section, As in subsection this used 12(b)(6) and, plaint pursuant in the to Rule the term “discriminate” includes— alternative, summary judgment. The dis- granted Rule trict court the defendants’ 12(b)(6) motion, complaint for dismissing the (2) participating in a or oth- contractual appeal fol- a claim. This

failure to state arrangement relationship that has er lowed. subjecting entity’s effect a covered qualified employee a dis- applicant with II. ability prohibited to the discrimination jurisdiction under We (such subehapter relationship includes and our review over relationship organization ... plenary. order is When the district court’s providing fringe benefits 12(b)(6) motion, accept considering a Rule we entity!) ].... the covered allegations forth in the true set all 12112(a)-(b) added). (emphasis complaint, draw all reasonable and we must observes, correctly plaintiff As the the defen- favor. See inferences fringe group insurance is bene- dants’ (3d Catterson, F.2d v. Schrob employment Schering. fit of at Ford claims Cir.1991). plaintiffs claim Dismissal of violated Title I of the the defendants 12(b)(6) only plain if occurs under Rule disparity mental-physical ADA because support prove tiff “can no set of facts against her on the constitutes discrimination him to relief.” claim which would entitle his disability. basis of Gibson, Conley 355 U.S. 99, 102,2 L.Ed.2d i.

III. addressing the Before merits of Ford’s claim, case Title I we must first ascertain whether Because the facts of this are not legal eligible file under Title I. dispute, analysis on the Ford is suit our focuses held that Ford While district court question of whether the “standing!,]” Op. Dist. vio lacked Ct. mental and, issue, preliminary question standing is not at issue lates the Indeed, “injured in has been eligible to sue under case. Ford is even whether benefits, is un fact” the denial of her which the ADA. address Ford’s claims We will injury likely [herself] der “an Titles and III seriatim. redressed a favorable agencies decision.” Simon ment that he completely dis- Ky. Rights Org., v. Eastern 426 U.S. abled for purpose of receiving disability Welfare time, 48 L.Ed.2d 450 benefits. At the same he asserted that (1976). Furthermore, Ford’s interest is ar- “qualified he was a individual with a disabili- guably within regulated ty!,]” the zone of interests meaning that he could work with or the ADA. id. at 39 n. accommodation, without a reasonable in his 1925 n. 19. ascertaining Instead of suit employer his former under the standing, we eligibility must assess Ford’s wrongful ADA for discharge. result, As a requirements under the ADA’s to file suit. concluded that the district court was within its discretion in finding that rep- McNemar’s Title I ability of the ADA restricts the government agencies resentations es- provisions sue “qualified under its to a indi- topped him claiming that he awas disability!,]” vidual with a whose characteris- “qualified disability” individual with a tics are defined as follows: Title I. See id. at 617-18. “qualified The term individual with a disability” means an individual with a dis- At glance, first McNemar seems to cover who, ability with or without reasonable the instant case since Ford has asserted she accommodation, perform can completely essential purposes disabled for of disabil- employment functions of the position ity yet is now asserting she is a such individual holds or “qualified desires. For the individual disability” with a for purposes subchapter, of this purposes consideration of her ADA suit. despite given shall employer’s judgment apparent relevance, McNemar is distin- job essential, as to McNemar, what functions of a guishable. are In the situ- employer and if an prepared has a written ation vis-a-vis the ADA give did not rise to description advertising that, before possibility or interview- for reasons intrinsic to ing applicants job, description for the ambiguity there was an shall be considered evidence of “qualified the essen- definition of individual with a dis- job. tial functions of the ability!.]” The essence of McNemar’s suit was that he despite could still work his dis- 12111(8). § Thus, 42 U.S.C. an individual ability (meaning that wrongfully he was dis- eligible to sue under I Title of the ADA must charged), yet he simultaneously received be disabled but perform still able to his or being benefits for unable to work due to his job duties with or without a reasonable disability. McNemar’s situation did not un- employer. Ford, accommodation ADA; earth an internal contradiction however, admits currently that she is unable instead, the contradiction in posi- McNemar’s to work even with a reasonable accommoda- tion arose between McNemar’s rep- various Indeed, tion. her disabled status is the rea- resentations, namely his claim wrongful son for her disability desire to receive the discharge government and his assertion to benefits at issue here. agencies completely that he was disabled. defendants-appellees argue that Ford n clearly ineligible case, to sue under Title I of the In the instant attempting Ford is also disabled, currently qualify because she is eligibility and to under Title require- I’s they point ment, to our recent predicate statement that “a but the factual of her claim (that person be, unable to work is not intended to she is disabled deserving and of disabil- not, benefits) and the ADA.” ity McNemar representation matches the she Store, Inc., (3d Disney qualify F.3d made to already for the benefits she — Cir.1996), denied, -, cert. plaintiff, received. Unlike the McNemar McNe- Ford illuminates an internal contradiction judi itself, mar focused on whether an namely disjunction individual is the ADA be- cially estopped claiming “quali to “qualified be a tween the ADA’s definition of indi- disability” fied individual with a disability” rights when he vidual with a and the represented governmental agencies prohib- the ADA confers. Title I of the ADA McNemar, he completely In by employers disabled. its discrimination regarding HIV-positive represented “terms, conditions, man govern- privileges” and of em- 12112(a), recent including § Court’s decision ployment, 42 U.S.C. disability Robinson, Title scope such as benefits. which concerned “fringe benefits” 12112(b)(2). Yet, and the Act of Rights Id. of the Civil VII restricting eligibili- argue, (1994), EEOC amicus seq. contributes to this 2000e et who can Title to individuals ty to sue under interpret- by lending support ambiguity for currently or without reasonable with work permit suits Title I of the ADA em- prevents disabled accommodation former em- against their former individuals disabled suing regarding discrimination ployees from ployers disability benefits. concerning their an individual be- Once benefits. interpreting Title VII are relevant Cases eligible for and thus comes disabled ADA is analysis of ADA because the our benefits, ability individual loses In- of Title VII. essentially sibling statute Title I’s reading defini- sue a strict deed, report accompanying ADA’s House disability” “qualified individual with tion the ADA is “to purpose states that longer no work individual can because that persons provide rights protections for civil a reasonable accommodation. with or without parallel those that are with disabilities rights guaranteed Title I In order women.” to minorities available effectuated, fully “qual- the definition of to be H.R.Rep. pt. No. disability” would have ified individual 267, 471. reprinted in 1990 U.S.C.C.A.N. byI permit under Title more suits Furthermore, incorporates by ref- the ADA currently just who able to individuals erence several terms defined Title VII. with without reasonable accommoda- work 12111(7) (incorporating Title tions. organiza- “person”, VTI’sdefinitions “labor disjunction explicit etc.). tipn”, by Title the ADA rights I of created Robinson, analyzed Supreme Court filing eligibility standards suit ostensible employees former are allowed whether I causes us to view contents under Title against previous employers bring suits their ambiguous requirements rather of those as retalia post-termination Title under VII meaning. having plain as unassailable negative job The tion references. plainness ambiguity statutory lan “The or “employees” Court found the term guage is reference to the lan determined 704(a) ambiguous itself, in of Title VII specific used guage context which used, reach, i.e., it language regarding temporal and the broader con whether only employees as whole.” Robinson v. encom text the statute current Co., 337, -, Oil 519 U.S. Shell 519 passed employees former as well. See (1997) (citing L.Ed.2d 808 Es at -, 136 Resolving at U.S. S.Ct. 846-48. Co., Drilling v. tate Cowart Nicklos ambiguity, held that the term Court 2589, 2594-95, 477, 112 U.S. S.Ct. employees encompassed former in order (1992), McCarthy v. Bron L.Ed.2d 379 legal provide employees former with a re son, post-termination against course retaliation. (1991)). locus at -, 848-49; at see also See id. ambiguity ADA contains a is whether the Educ., Bd. Charlton Paramus temporal “qualified of the term indi qualifier (3d Cir.1994) (former may employee disability!!]” putative If the vidual with against file em a retaliation claim a former must, suit, plaintiff time of VII). ployer Title ac employable with without a reasonable VII, “employees” in Title the term As with commodation, em then disabled former concerning ambiguity the ADA contains an ability challenge ployee his to sue loses with a “qualified individual definition discriminatory disability benefits. Alterna qua- no disability” temporal because there is “qualified tively, individual the term with Congress lifier for that definition. could disability” may employees include former eligibility have restricted the employed or without who were once with who, employees current under the yet at the reasonable accommodations suit, eligibility completely explicitly broadened the time of disabled. could situation, employees. Con- tion actual harm to include Since occurred virtue former gress rights neither still created re- did but of the retaliation. As the Seventh Circuit benefits, garding disability we are left with wrote, “[N]othing happened that discrimi ambiguity in the text of the statute re- against during nated the time she was garding eligibility to sue under Title I. working only thing CNA. that oc curred was CNA’s 1985 decision to reduce ambiguity by We resolve this inter long-term benefits available to all of its preting Title I of the ADA to allow disabled employees problems.” for mental health Id. employees former to sue their former em at 1045. the Seventh Circuit’s ployers regarding their benefits so analysis issues, brief conflates two the first panoply rights as to effectuate the full being whether the individual could sue re guaranteed by keeping the ADA. This is garding fringe rationale, completely benefits while dis namely pro with ADA’s “to abled, comprehensive being vide clear and national and the second whether the mandate for the elimination of discrimina individual’s suit had merit and was based tion with ... individuals disabilities upon actual discrimination. The Seventh clear, consistent, provide strong, [and] en essentially Circuit declined to find the indi addressing [such] standards dis- eligible vidual forceable sue because her suit lacked crimination____” 12101(b)(1)- Therefore, merit. we do not find the Sev (2) added). (emphasis Our decision is also reasoning persuasive enth regard Circuit’s keeping with the Court’s Robin- eligible whether Ford is to sue decision, temporal son which found that the opposed instant case as to whether her suit encompasses reach of Title VII former em- has merit.2 ployees, preRobinson and our decision to Charlton, disagree We also the Eleventh Cir

that effect 25 F.3d at 200. ruling cuit’s in Gonzales v. Garner Food By adopting interpretation, part Services, Inc., (11th Cir.1996). 89 F.3d 1523 ways with the and Eleventh Seventh Cir Gonzales, ease, as in the instant a disabled cuits, prior both of tendered which decisions employer former sued his former to Robinson.1 In EEOC v. CNA Ins. Com regarding alleged under the ADA discrimina (7th Cir.1996), panies, 96 F.3d 1039 the Sev tion in benefits. The Eleventh Cir rejected the enth Circuit suit of an individual recognized possible analogy cuit position Litigating in a similar to Ford’s. the Title VII retaliation context and the ADA employee, behalf of former the the EEOC situation, adopt analogy but it refused to this argued eligible that the individual was to sue grant plaintiff permission and to the to sue. by arguing analogy may Title I that an under Instead, that, argued the Eleventh Circuit allowing be drawn to decisions former em clearly expressed legislative intent “[a]bsent ployees employers to sue for retaliation un contrary, plain language to the the of the rejected der Title VII. The Seventh Circuit statute be conclusive.” Id. at 1528. argument by noting should that no discrimina against plaintiff during The Eleventh on what it tion the occurred Circuit concentrated while, employment, plain meaning the Title VII retalia believed to be the (in- Metropolitan "disability recipient.” 1. The Sixth Circuit in Parker v. Id. at 1043 benefit Life Co., Cir.1996), (6th analyzed omitted). Ins. 99 F.3d 181 quotation According ternal marks plaintiff eligible whether a to sue under Title Circuit, that, Seventh the EEOC claimed However, by I. that decision was vacated job-related imposes "[b]ecause CNA no duties on granting plaintiff's petition rehearing of the for any long-term disability of the beneficiaries of its 14(a). en banc. See 6th Cir. R. The en banc by perform plan, plaintiff] [the definition can decision did not address Title I because issue position: essential functions of her there are plaintiff's petition it was not raised for none....” Id. at 1043-44. The Seventh Circuit rehearing Metropolitan en banc. See v. Parker because, words, rejected argument that in its Co., 1006, (6th Ins. 121 F.3d 1009 n. 2 Life job[,]” 'employment position' ”[a]n is a id. at 1997) (en banc), denied, -, Cir. cert. - U.S. 1044, disability meaning receiving benefits 871, qualify employment position. did not However, argument Ford does offer this argued 2. The EEOC in CNA that the dis- also person "employment position” litigation. abled was in the the instant contemporary or future ployee’s currently employable individuals only status, has occurred discrimination However, then no it failed to address could sue. coverage if for offers different disparity between even possibility not re- apparent The ADA does ADA and the disabilities. rights various created coverage every type of dis- remedy equal the ADA creates for legal quire fashioned existed, eligibility requirements ability; requirement, if it ambiguity in the such a industry obtaining remedy. in a the insurance for would destabilize by Congress definitely not intended manner sum, disagree respectfully with the In we passing the ADA. when appeals. courts of district court sister per- ADA does that Title I of the We find analysis supported Su former sue their mit disabled individuals precedent Circuit and Third preme Court disability bene- regarding their employers 1973, 29 Act of concerning the Rehabilitation because fits. reach this conclusion We (1994), may which we look proscription discrimination ADA’s interpreting the ADA See guidance in generates fringe the need dis- Inc., Technologies, v. Lucent Gaul legal recourse abled individuals to (3d Cir.1998). Alexander exposes the discrimination and Choate, temporal ambiguity in the ADA’s definition plaintiffs sued re L.Ed.2d 661 disability[.]” “qualified individual with program’s sponse to the Tennessee Medicaid ambiguity in favor of resolve We hospital inpatient in the number of reduction “qualified temporal interpretation of broad days pay. it for which would disability[,]” with a that disabled individual the reduction would have dis claimed that employees, longer able to no work former handicapped individu proportionate effect on accommodations, without reasonable with or they longer inpatient require als since would employers concerning their former can sue non-handicapped individuals. care alleged package in their discrimination Supreme Court held impetus Our for this benefits. inpatient hospital “neutral limit on care was comes from the conclusion also “distinguish ]” and did be faee[ allowing former Robinson decision Court’s coverage whose will be reduced tween those under Title employees to sue VII on the and those whose will not Rights Act of 1964. Civil test, judgment, or trait that the basis of capable handicapped as a class less ii. likely having.” meeting or less Id. eligibility Having established According at 720-21. Su I, Title ascertain now sue Court, mus.t handicapped did not preme citizens survives the she states a claim that whether both from discrimination because suffer 12(b)(6) motion. Ford es defendants’ Rule non-handicapped individu handicapped and sentially claims that “subject to the same durational als were physical for mental and disabilities benefits at 721. limitation.” Id. at 105 S.Ct. I of the ADA. violates Title Alexander, Supreme Court Building on the support finding not a argument does dis Traynor Turnage, v. 485 108 in Title I. crimination (1988), 1372, 99 L.Ed.2d 618 dismissed precluding challenge a to a federal statute plan the defendants’ insurance While disabilities, granting from Veterans Administration types of the differentiated between ten-year delimiting period to a for cry specific far extensions from disabled is if the veter to to claim their benefits employee facing treatment due veterans differential from their willful disability. Schering employee had ans’ disabilities arose own Every misconduct, by regulations defined as includ join plan the same opportunity the rejected meaning ing Supreme Court coverage, that alcoholism. schedule of the same statute equal argument the that the discriminated every Schering employee received disability, namely every against type of alcohol employee one long treatment. So in nothing the Rehabilitation plan regardless that em- ism. “There is the same offered requires vary Act that that benefit extended more in benefits. Nor did it the plan handicapped depending terms on category persons also whether or to one not the All categories was disabled. em- be extended to all other of handi- ployees perfectly healthy, physi- the persons.” capped Id. —the disabled, cally mentally and the disabled— plan promised long-term had a them held, in We have likewise the context of benefits from the onset until Act, that the Rehabilitation a state’s medical if age problem physical, their every assistance statute need treat dis long-term years two if for the Colautti, ability equally. In Doe v. nervous____ problem was mental or (3d Cir.1979), challenge we dismissed a plaintiff] [The raises a different kind of Pennsylvania un provided to a statute that claim, grist discrimination more for the hospitalization physical for in a limited illness mill or ERISA the national care health private hospital hospitalization but restricted than for debate the ADA. She claims that private mental hospitals. for illness mental against employees the discriminates rejected argument that We the differen who in the future will become disabled due tial level of benefits violated Rehabilita physical to mental conditions rather than that, by noting tion Act “[i]n treatment conditions; (unbe- present their dollars illnesses, physical mentally their ill re them) buying only knownst everyone A ceive the same benefits as else. benefits, months instead of benefits last- patient disease, in mental with heart for longer. much However this is dressed stance, is as benefits for entitled to treatment up, really it is plans claim benefit person of the heart would be a disease as may themselves not treat mental health mentally ill.” holding Id. at 708. Our in Doe favorably they conditions less treat supported by the D.C. Circuit’s decision physical health conditions. Without far (D.C.Cir.1996), King, F.3d Modderno language ADA stronger supporting — denied, U.S. -, rt. ce result, we are loath read into it a L.Ed.2d 717 which the subject vigorous, rule that has been rejected challenge Circuit brought D.C. contentious, sometimes national debate for spouse foreign a former of a service officer Few, years. any, if the last several mental un Foreign Benefit Plan Service thought health advocates have upon der the Act based Rehabilitation they to see result would like has been plan’s lower ill level of benefits for mental along in there all the ADA. compared physical ness illness. CNA, (citations omitted). 96 F.3d at 1044 Court Aside and Third Cir- Likewise, in Krauel v. Methodist Iowa Med. precedent cuit con- the Rehabilitation Act Ctr., (8th Cir.1996), Eighth 95 F.3d 674 text, claims under the similar to Ford’s rejected challenge Circuit under the ADA rejected been appeals three courts of to an insurance that denied published opinions. disagree While we infertility. Analogizing infertility exclu- reasoning with the Seventh in CNA Circuit’s sion to differential benefits mental and sue, regarding plaintiffs eligibility illnesses, stated, physical Eighth Circuit agree with regarding its discussion the mer- apply equally “Insurance distinctions that plaintiffs In rejecting its of claim. the' is, employees, all insured to individuals challenge between with who disabilities to those are not illnesses, benefits for mental and disabled, do not discriminate the basis of Circuit stated: Seventh Finally, disability.” Id. at 678. the Sixth terms, conditions, privi- of those or One rejected a Circuit in Parker claim similar to leges employment may of pension be a Ford’s made defendants same claim plan, but there is no here that CNA in the instant case. Sixth Circuit As held, discriminated on the basis of employees “Because all the at Scher- offering pension anyone. not, did plan It ing-Plough, whether disabled or re- charge peo- higher prices long-term not to disabled same ceived the access to the dis- they require on ple, theory might ability plan, neither the nor defendants Heflin); 1996) (statement also of Sen. see and the disabled between discriminated Furthermore, CNA, 1015-16; Con- at 1044. 96 F.3d 121 F.3d at the able bodied.” cf. Parity Y., gress passed the Mental Health then N. Comptroller the State Brennen v. of VII, 104-204, Cir.1996) (2d Title No. Pub.L. Act 1996 WL (codified (1996) decision) (benefits at 29 U.S.C. extend 110 Stat. (unpublished table 300gg-5), which and 42 persons need 1185a U.S.C. category disabled ed one alia, mandates, that a health insurance categories). inter all other not be extended to for limit plan containing no annual or lifetime no violation of finding The cases on such limits benefits cannot have medical between mental by disparity a benefits congressional health benefits. Such mental supported are physical and disabilities not the ADA does reveals both that action history. the Senate legislative As ADA’s pari- and that no parity requirements contain re- Human Resources Committee Labor and dis- ty physical and requirements for mental port states: enacted subse- ability have been benefits addition, may deny employers In quent to the ADA. coverage completely to an health insurance person’s diagnosis on the individual based iii. it disability. example, per-

or For while employer an insurance for to offer missible chal attempts to buttress her coverage pro- for certain policies that limit for lenge to between treatments, only speci- e.g., cedures or by pointing physical and mental disabilities per year mental fied for health amount 501(e) which contains section (cid:127) person has a mental coverage, who in provision covering the the “safe harbor” may not denied cover- health condition be section, industry. This codified at surance as for a age other conditions such for 12201(c), reads follows: leg surgery because of or for heart broken (c) Insurance the mental health condi- the existence of may on placed A reim- tion. limitation Subehapters chap- III of through this procedure types or bursements Act not be and title IV this shall ter covered[,] e.g., procedures a limit drugs or restrict— prohibit construed to or x-rays non-coverage number of or on the (1) insurer, hospital or ser- medical but, drugs experimental procedures; or orga- maintenance company, health vice apply persons that limitation must with nization, entity that agent, or or people All or without disabilities. plans, or similar or- administers benefit equal access must have disabilities . risks, underwriting ganizations from coverage provided that is health insurance risks, administering classifying or such employer employees. to all are on or not inconsis- risks that based 101-116, S.Rep. No. at 29 law; tent with or State addition, history legislative subsequent In (2) person organization or covered Congress passage evinces that ADA’s establishing, spon- chapter from pari- that the ADA mandated did not believe observing administering the soring, or ty physical mental and of a bona fide benefit terms benefits. Senate defeated risks, underwriting classi- are based on to the Health Insurance Porta- amendment risks, administering risks fying or such bility Accountability Act of Pub.L. not inconsistent based (1996) (codified No. 110 Stat.1936 law; or with State 18, primarily in Titles (3) U.S.Code), person organization pari- which mandated would have spon- chapter establishing, mental and ty observing administering the soring, illnesses. Such an amendment plan that is unnecessary altogether if terms of a bona fide benefit would have been subject regulate laws that already required parity. See State the ADA 2, (daily Aug. insurance. Cong. 142 Rec. ed. S9477-02 (3) McMann, 2863; (1), (2), not be 109 S.Ct. at see also Paragraphs shall 203, purposes subterfuge to evade the at at 450. used as a U.S. 98 S.Ct. chap- III subchapter I and of this [sic]

ter. Supreme The Court’s definition and 12201(e). analysis of the ADEA’s use of the term “sub essentially § 42 U.S.C. that, terfuge” applicable to the ADA’s presents prima are use claims once she facie “subterfuge[.]” Congress in ben- alleging case discrimination the term enacted efits, 501(c) Schering present 1990, must and MetLife ADA in section of the see Pub.L. demonstrating plan 101-336, (1990), actuarial data that their No. 104 Stat. 369 while the Hence, according “subterfuge[J” not a in Supreme Court decided Betts 1989. Con Ford, granting court erred in district presumed gress adopted therefore is to have 12(b)(6) Rule motion since the defendants’ Supreme interpretation Court’s of “sub justifying not offered data defendants had terfuge” ADEA context when Con for the in bene- the actuarial basis “[W]here, here, gress ADA. enacted the as fits. Congress adopts incorporating a new law law, fail, however, prior Congress normally since sections of a argument

Ford’s must prece contrary Supreme presumed knowledge Court can be to have had it runs dent, duty regarding ignores statutory our interpretation given incorporated to the regulation law, and distorts the role of at insofar it affects the new least First, argument Pons, 575, this court. statute.” Lorillard v. 434 U.S. Schering justify their in and MetLife must 581, 866, 870, (1978); 98 S.Ct. 55 L.Ed.2d 40 Supreme surance contradicts States, see Standard Oil Co. v. United of N.J. interpretation provision of a similar Court’s 221 U.S. 31 S.Ct. 55 L.Ed. 619 501(c) Age in the context of the to section (1911) (“[W]here employed words are in a (ADEA), Employment Act Discrimination had at time a statute which well-known (codi (1967) 90-202, Pub.L. No. 81 Stat. meaning at common law or the law of this (1994)). seq. 621 et Prior fied at 29 U.S.C. country, they presumed to have been Congress’s elimination of the term “sub compels in that used sense unless context 1990, terfuge” the ADEA in see Older contrary.”). Congress “Had intended 1990, Protection Act of Workers Benefit reject interpretation the Betts of subter 101-433,104 978, the ADEA Pub.L. No. Stat. fuge when it enacted the it could have pro granted exemption from the ADEA’s expressly by incorporating language done so age discrimination to an hibition Congress purpose for that into bill subterfuge!.]” plan that was not “a benefit Krauel, signed.” on and the President voted 623(f) (1988). In Public Em 29 U.S.C. Modderno, 679; at 95 F.3d at accord Betts, Sys. ployees Retirement Ohio v. Accordingly, Supreme Court 2854, 158, U.S. 109 S.Ct. context, held in the ADEA the term “subter (1989), rejected chal Supreme Court fuge” require company an insurance does not lenge to an insurance that rendered justify coverage after a policy its disability re employees ineligible for prima allegation. mere facie sixty. Rely they age tirement once reached argument reason that Ford’s second Lines, Air Inc. ing on its decision United statutory duty ignores must fail is that it our McMann, McCarran-Ferguson regard- Act Supreme con L.Ed.2d 402 Court Act, Pursuant to that insurance cases. “subterfuge” cluded that the term must “ Congress construed to “No Act of shall be scheme, ordinary meaning of ‘a given its ” invalidate, en- impair, supersede law plan, stratagem, or artifice of evasion.’ purpose regu- by any for the Betts, acted State at at 2861 492 U.S. ... unless McMann, lating the business of insurance (quoting 434 U.S. 450). specifically Act relates to the business addition, Court insurance____” 1012(b) company requiring found that an insurance “specifically re- ADA does not justify scheme had no basis insurance!,]” id., to the business of statutory language. late[ ] See id. at

612 proposition the that cite ADA itself for in its “insurance” term

does not mention public ais accommo- “Findings office[ ]” and an “insurance introductory entitled section III. § under Title 42 12101. Accord dation U.S.C. purpose^]” See 12181(7)(F) 501(c) examples public of ac- (listing section to not construe ingly, we will ]”). including office[ “insurance commodations shift in the insurance busi require a seismic ness, justify requiring insurers namely public office is a fact that insurance after mere plans in court a coverage their accommodation, however, that does not mean This second reason allegation by plaintiff. a at location policies offered that third reason related to the integrally is case, by Title III. In the instant are covered 501(c) regarding section argument Ford’s disability ben- Schering MetLife offered and fails, justi namely requiring insurers to that employ- of efits Ford the context her plans this fy elevates court their Schering, meaning that the ment at super-actuary. This position court of and part of the terms constituted benefits watchdog clearly equipped to become not employment. Terms of Ford’s conditions business, and it is unclear of the insurance employment of are covered and conditions analysis the exactly actuarial defen what I, is not not Title III. “Title III under Title disprove produce dants would or govern any terms conditions intended to Modderno, “subterfuge[.j” charge 82 See of by public providers of accom- employment of (noting confusion as to exact F.3d at 1062-63 potential places employment; of modations or sufficient). ly data would be what actuarial practices governed title employment 101-116, S.Rep. legislation.” of No. B. 2, (1989); H.R.Rep. pt. No. see against claim second (1990), reprinted U.S.C.C.A.N. Schering MetLife is that Therefore, Ford cannot state 382. mental and disabilities benefits for pursu- employer, Schering, claim III of ADA. Title III reads violates Title Parker, 121 ant Title III. See F.3d at part as follows: “No individual in relevant MetLife, Regarding against on the of shall be discriminated basis enjoyment challenges qualify do equal full of not disability in the services, facilities, accommodation and thus do not goods, privileges, public ad as a plain Title of fall the rubric of III. The vantages, place accommodations of within or public any person meaning of Title III is that accom who public accommodation (or owns, to), operates place, leading to or is a the conclusion leases modation leases “ is all the services which the ‘[i]t place public accommodation.” U.S.C. offers, 12182(a). public Relying principle accommodation all services on the public interpreting in a which the lessor accommodation avoid statutes courts should redundant, offers[,] scope fall of Title rendering which within manner some words ” — Alaska, U.S. -, Stoutenborough v. (quoting III.’ Id. at 1011 see United States Inc., -, League, Football 138 L.Ed.2d National Cir.1995) (6th (a television broadcast is Dept, Ford and Justice III)). keep essentially Title argue phrase amicus “services, examples public ac privileges, advantages” the host of ... [and] provided all commodations covers discrimination realms different places. refer physical access to facilities or else these which 12181(7).3 superfluous. also Since Ford received her disabili- Ford can words would 12181(7) actually occupied by or hire and that is for rent 3. Section reads as follows: proprietor of the resi- such establishment as following private are considered entities proprietor; of such dence public purposes of sub- accommodations for restaurant, bar, (B) or other establishment operations chapter, if the of such entities affect drink; serving or food commerce— house, theater, (C) hotel, picture (A)an inn, motel, concert lodg- a motion place other hall, stadium, place ing, other exhibition except for an located within establishment entertainment; building that contains than five rooms not more ty words, bookstore, employment Sehering, benefits via her a example, must she had no nexus to MetLife’s “insurance make its operations facilities and sales ac- office” and thus was not discriminated disabilities, cessible to individuals with but connection, public with a accommo- required is not to stock large Brailled or n print Furthermore, services, “goods, dation. Similarly, books. a video store must facilities, privileges, advantages, or accom- make its facilities operations rental concerning modations” a per- which disabled accessible, required but is not to stock son cannot suffer discrimination are not free- closed-captioned tapes. video standing concepts but rather all refer to the B, (1997). pt. app. 28 C.F.R. at 640 Just statutory “public term accommodation” and as a bookstore must be accessible to the places public thus to what these of accommo- disabled but need not treat the disabled provide. point dation Ford cannot to these equally in stocks, terms of books the store providing protection terms as from discrimi- an insurance office physical must be likewise places. nation unrelated to ly accessible to the disabled but need not

Restricting “public accommodation” to provide insurance that treats the disabled places keeping jurisprudence con- equally with the While non-disabled. cerning Rights Title II of the Civil Act of Dept, of Justice has issued other documents § 42 U.S.C. 2000a Title II stating that Title III does cover the sub proscribes religious racial and discrimination contracts, stance of Dept, see of services, facilities, goods, Justice,.Title in “the privileges, III Technical Assistance Man n advantages, and accommodations of Covering ual: Public Accommodations and accommodation____” place public of III3.11000, § Commercial Facilities at 19 2000a(a). (Nov.1993) (“Insurance proscription has places offices are of places been limited to including rather than public and, such, accommodation may membership in organization, an see Welsh v. discriminate on the basis of Am., Boy Scouts 993 F.2d 1269-75 sale of insurance contracts inor the terms or of (7th Cir.1993), encompassing and rather than conditions of they the insurance contracts organization’s operations unconnected to offer.”), interpretation such an “manifestly any physical facility. Clegg v. Cult contrary” plain meaning to the of Title III Network, (9th Awareness 755-56 and, accordingly, binding is not on this court. Cir.1994). U.S.A, Chevron Inc. v. Natural Resources Council, 467 U.S. Confining “public accommodation” to Defense (1984); see Par places in keeping Dept, is also with the ker, 121 Furthermore, F.3d at 1012 n. 5. regulations Justice’s to this effect: plain since we meaning “public find the purpose public of the ADA’s accom- 12182(a) accommodation” and 42 U.S.C. requirements modations is to ensure acces- clear, wé analyze have no need to sibility goods public offered a legislative history. ADA’s accommodation, not to alter the nature or goods that, mix public that the aligning accommoda- We also note ourselves typically provided. tion has In with the other Sixth Circuit’s Parker decision re- (D) auditorium, center, zoo, (I) park, park, convention lecture a amusement or other hall, place public gathering; recreation; or other place of (E) store, store, bakery, grocery clothing a (J) nursery, elementary, secondary, a under- store, center, shopping hardware or other sales school, graduate, postgraduate private or oth- establishment; or rental education; place er laundromat, (F) bank, dry-cleaner, a barber (K) center, center, day care senior citizen service, shop, beauty shop, repair travel shoe shelter, bank, adoption agency, homeless food service, station, parlor, gas funeral office of an establishment; other social service center lawyer, pharmacy, accountant or insurance of- (L) gymnasium, spa, bowling alley, health fice, professional provider, office of health care course, golf place or other of exercise or recre- establishment; hospital, or other service ation. (G) terminal, depot, or other station used for 12181(7). specified public transportation; (H) museum, library, gallery, place or other collection; public display sum, a claim under In Ford fails to state “public accommoda-

garding the definition provision of the First Cir- Title III of the ADA since the tion!;,]” company with part Schering’s Carparts Distribution benefits MetLife to regard. in this cuit public ac- employees qualify Ass’n as a Ctr., Wholesaler’s does v. Automotive Inc. (1st Inc., Cir.1994), F.3d 12 commodation. England, New is not that Title III held the First Circuit The First structures. physical to

limited IV. “travel to the inclusion of pointed Circuit reasons, the the we will affirm For above public accommodations list of service” 12, 1996, September order of district and noted: dismissing complaint for failure court conduct business Many services travel court, district to state claim. Unlike the correspondence re- without telephone or eligible to sue under we find that-Ford is enter an office customers to their quiring However, fails claim Title I. Ford to state a Like- their obtain services. in order to asserting in under Titles I or III and errs imagine wise, easily the existence one can provision of Title V that the “safe harbor” conducting establishments of other service requires companies justify their insurance to phone pro- by mail and without business plans prima after a facie en- their customers to viding facilities allegation. to utilize their services. It in order ter per- irrational to conclude that be would ALITO, Judge, concurring Circuit purchase ser- an office to sons who enter judgment: per- but protected vices majority I to agree with the that fails the same services over purchase sons who Dis- state a claim under the Americans with telephone or mail are not. Con- (ADA). However, Act I reach this abilities have intended such an gress not could solely based on the insurance conclusion result. absurd provision “safe harbor” located section 12181(7)(F)). § (citing 42 U.S.C. Id. at 19 12201(c). 501(c) § of the ADA. See 42 U.S.C. pointed Sixth Circuit out as the 501(e) 1014, Parker, provides Section I and F.3d at the First Circuit Titles 121 public not examples of accom- III of the “shall be construed read the failed to prohibit in- of a fide piqued the First Circuit’s restrict” the terms bona modations 12201(c). § plan. 42 examples of the other insurance U.S.C. in the context terest terms, litany exemption applies long so as it is “used public accommodations. “auditorium,” “bakery,” subterfuge purposes as a “laundro- evade of’ including “museum,” “nursery,” majority recognizes, mat,” “park,” “food ADA. Id. As the bank,” places “subterfuge” term must be in ac- “gymnasium[ ]” refer to construed by physical cordance with the utilized access. Court’s decision with resources (H)-(L). 12181(7)(D)-(F), Sys. Employees § Pursu- Public Retirement Ohio sociis, Betts, 158, 2854, v. 492 109 106 ant of noscitur U.S. to the doctrine Maj. ambiguous Op. 134 at First Circuit finds L.Ed.2d See 610-11. terms that the provision interpreted by concerned a harbor” reference the Betts “safe should be exempted fringe plans of the “to avoid that benefit from cov- accompanying words statute erage by Age Employ- unintended breadth the Acts Discrimination giving (ADEA). 623(f)(2) Co., v. G.D. & ment Act See 29 Congress.” Jarecki Searle (1988).1 501(e), 307, Like section the ADEA ex- U.S. (1961). Accordingly, emption provided protect it we do not that would L.Ed.2d 859 subterfuge that was “a to evade the “public accommodation” find the term 12181(7) purposes interpreting non- of’ Act. In to refer to Id. terms in 42 U.S.C. ambiguous language, em- as to the Court concluded or even access plan adopted prior to en- ployee benefit meaning. their 103(1), Betts, 623(f)(2) Following Pub.L. No. 104 Stat. 1. was amended section Act of the Older Workers Benefit Protection 501(c) of the ADEA actment could not be consid Given the effect of section on Ford’s claims, subterfuge purposes ered a to evade the think necessary do not that it is (reaf Betts, the ADEA. distinguishing U.S. 166-69 the court to conclude that be- Lines, firming holding people of United Air Inc. tween different disabilities for McMann, v. purposes is not discrimination (1977)). disability. Maj. Op. Under same based on See at 607-08. fact, reasoning, plan challenged by the insurance it would making seem that subterfuge Ford cannot be considered distinctions does constitute discrimination in purposes evade the the ADA since the the most basic sense of the word. Web- adopted prior Dictionary the enactment of ster’s Third New International the ADA2 See King, (defining Modderno F.3d making discrimination as “the (D.C.Cir.1996) difference”). (holding 1063-1065 of a perceiving distinction or However, plan prior an impor enacted ques- we need not wrestle with the tation of ADA might standards into the Rehabilita tion of might what not constitute tion Act could not subterfuge be considered a unlawful insurance discrimination under the standards). Accordingly, Congress issue; to evade those the ADA had not addressed the plan by Congress defendants’ is attack insulated from address provided did the issue and 501(c). 501(c). explicit section answer section I complaint further note that Ford’s light ease with which Ford’s currently to allege framed fails de 501(c), claims can be resolved under section “specific developed fendants ever intent” to would not reach the more difficult issues of: purposes Betts, evade the of the ADA. 1) whether a former employee who can no 171, 109 Betts, 492 U.S. at 2854. In S.Ct. longer work can “qualified meet Title I’s Court wrote: disability” individual requirement; with 2) public and whether Title Ill’s accommoda- challenge [W]hen seeks to provision guarantees tion anything more plan provision subterfuge benefit as a access. These issues have di- purposes Act, employ- evade the circuits, judg- vided the and I would reserve proving ee bears the burden ment until arewe confronted with a case discriminatory plan provision actually was unique which the considerations of insurance purpose

intended serve the of discrimi- plans are not at stake. nating non-fringe-benefit aspect in some the employment relation.

Betts, 181, 109 492 U.S. at S.Ct. 2854. Under reading “subterfuge,” Ford could not

successfully challenge the defendants’ insur plan

ance unless she could it show that was

intended serve purpose of discriminat aspect in some non-insuranee-benefit relationship with the defendants. Ford’s

complaint such allegation contains no of in

tent. disputed portions

2. The passage been it was maintained after the of the ADEA App. effect since least 1985. 87. The purposes in order to evade of that Act. One enacted argue position stronger in 1990. See 42 U.S.C. could provision the ADA's "safe harbor” due dif- to a justices statutory language. Compare ference rejected majori- Three McMann 623(f) ("is ty's subterfuge plan adopted prior U.S.C. not a conclusion that a to evade ADEA) added) purposes subterfuge (emphasis of the of" the enactment ADEAcould not be a 1201(c) purposes to 204-05, avoid the Act. See U.S. at not be as a {“shall used (White, J., ADA) concurring); subterfuge purposes id. to evade the of” the (Marshall, J., added). joined by (emphasis at Brennan, 219 n. S.Ct. 444 I do not believe J., dissenting). According jus- change to these that this sufficient avoid the man- tices, pre-Act subterfuge could become a date of if McMann and Betts.

Case Details

Case Name: Colleen v. Ford v. Schering-Plough Corporation Schering Corporation Metropolitan Life Insurance Company

Court Name: Court of Appeals for the Third Circuit

Date Published: May 22, 1998

Citation: 145 F.3d 601

Docket Number: 96-5674

Court Abbreviation: 3rd Cir.