Gonzales Ex Rel. Estate of Bourgeois v. Garner Food Services, Inc.

coverage ance pursuant benefit to the Con- BLACK, Before ANDERSON and Circuit Budget solidated Omnibus Reconciliation Act HENDERSON, Judges, and Senior Circuit (COBRA).3 of 1985 Judge. partly At Bourgeois’ least because of con- BLACK, Judge: Circuit participation tinued in the health insurance Appellant August plan Gonzales filed this action discharge, benefit after his GFS amend- 1, under I of plan the Americans With Disabili- ed the on October cap AIDS- (ADA),1alleging $10,000 ties Act of 1990 that Defen- related annually treatment with a dants employ- $40,000. discriminated lifetime maximum limit of GFS ee, Timothy Bourgeois, imposing cap operations for ceased on March Thereafter, AIDS-related treatment on health insurance GFF operations, continued GFS’ coverage Bourgeois benefit sponsor elected to contin- Bourgeois’ plan.4 became the (1994). seq. Appellant § 1. 42 U.S.C. 12101 et seq. 3. 29 U.S.C. et COBRA initially sought require relief under amended ERISA to both 510 of the each allow Employee to elect Security to continue cov- Retirement Income Act of erage employer’s group (ERISA), (1994), health insur- plan up following ance 18 months termi- subsequently but dismissed the ERISA employment. nation of claim. outset, liability At the GFF denies on the bases 2. Since the district court decided this case on a worked for GFS and not dismiss, allegations motion to we have taken the sought employment GFF and never from GFF. Appellant’s complaint as true and have con Antle, Citing this Court’s decision in Bud Inc. v. liberally Appellant. strued Foods, them in favor of Inc., See Eastern 758 F.2d 1451 Cir. Equip., Walker 1985), Process Inc. v. Food Mach. and Appellant counters that GFF is liable un 172, 174-75, Corp., Chem. 349, merger der theories of de and mere contin facto operations uation because GFF took over the thereby making pay refusal to GFF’s Bour- September on he died Before Bourgeois’ until death to benefits from then available the benefits exhausted geois had Act. In continuing de- determin- cap limit and was violation AIDS him excess, cap ing the AIDS whether maintenance claims submitted payment for nied $90,000. continuing July constituted a after approximately totaling ADA, of this Court must distin-

violation the present consequences of a guish between the OF REVIEW STANDARD II. violation, qualify as which would one-time Appel of court’s denial The district violation, continuing and the continuation of a reviewed reconsideration is lant’s for motion present, would. violation the the into Region 8 Forest See for of discretion. abuse Co., Pipe v. American Cast Iron See Beavers Alcock, v. Purchasers Council Serv. Timber Cir.1992). (11th 792, As did the F.2d 796 (11th Cir.1993), 800, cert. de 993 F.2d court, purposes of district will assume 683, nied, analysis the denial of AIDS-related our that re Since our review L.Ed.2d 651 care benefits after the effective date health law made on conclusions of quires us to focus continuing a of the ADA constitute could motion granting court the the district of Act. See Bazemore Fri violation the dismiss, of law questions these we review to 385, 395, 106 day, 478 U.S. Ceuleers, F.2d O’Reilly v. de novo. See (1986) (“A pattern practice or Cir.1990). 1383, 1385 constituted a violation of that would have VII, fact but for the that statute Title III. DISCUSSION effective, yet became a viola had not become date.”); Bea upon VU’s effective tion July ADA was enacted on The vers, (holding that at 797-98 975 F.2d July until effective but did not become pre-Title of a VII dis continued maintenance 101-336, § 104 Stat. No. 1992.5 Pub.L. policy actionable criminatory is after I address Title of continuing a of Title VII as the effective date by employers.6 disability discrimination es statute). violation of the employers, Title is not applied private to As O’Bryant City Mid retroactive. See of maintaining if argues that even GFF (5th Cir.1993); land, 421, 422 see also F.3d beyond date of cap the effective AIDS (statement by Presi 1990 U.S.C.C.A.N. violation, continuing a ADA could constitute 933). George upon signing Bush S. dent prima facie ease of fails to state a Appellant con background, courts have Against this Act. The Title I of the discrimination only wrongful apples Title I cluded that covered enti- rule states: “No general Title I date of after the effective acts committed against qualified indi- ty shall discriminate See, 422. O’Bryant, 9 e.g., F.3d ADA. disability of the dis- because vidual with implemented cap was Since the AIDS regard ability of such individual date of prior to the effective October hiring, procedures, the advance- application ADA, that argues from the outset GFF employee ment, discharge employees, or Appellant’s claim is barred. terms, job training, and other compensation, conditions, employment.” privileges of is action- counters that his claim Appellant 12112(a) supplied). A (emphasis § cap “en- on the basis AIDS able disability” (QID) ADA, with a “qualified individual effective date dured” after the officers, directors, give "to period,” purpose which was em- with identical GFS defunct shareholder, necessary main- virtually ployers sole actions an identical time take those cap plan and first requirements the same health AIDS tained compliance come into GFS, all liabilities implemented and assumed however, Act”; authority cites no the dissent Given We decline to resolve this issue. GFS. Congress’ indicating intent. Appellant relief holding is not entitled our if it is a GFF is not liable even undisputed met the ADAdefini- GFS It in interest to GFS. successor "employer.” 42 U.S.C. See tion year span 12111(5)(A). to the two between dissent refers § "phase-in dates as a the enactment and effective disability employed by employer,”10 as “an individual with a al Id. is defined 12111(4) who, Further, (emphasis supplied). with or without reasonable accommoda- 12112(b) tion, can functions of provides: essential employment position that such individu- (a) section, As in subsection n used of this 12111(8) al holds or desires.7 the term “discriminate” includes— (emphasis supplied). (1) limiting, segregating, classifying or parties dispute that do not AIDS is a job applicant employee way in a disability recognized under the ADA.8 It is adversely opportunities affects the or sta- benefits, undisputed further such applicant tus of such because benefits, employer-provided are one applicant of such or em- “terms, conditions, privileges set of the and ployee; employment” protected from unlawful dis- (2) participating in a contractual or oth- Thus, Appel- crimination ADA.9 under the arrangement relationship er or that has reasons, Bourgeois advantage lant once took subjecting entity’s the effect of a covered opportunity participate in group qualified applicant employee or with a plan, health insurance he was entitled to be disability prohibited to the discrimination provided with health insurance in a nondis- ...; by subchapter this criminatory manner. Bourgeois satisfy QID does not (5)(A) making not reasonable accommo- requirement plain language physical dations the known or mental ADA, however, because he neither held nor qualified limitations of otherwise indi- position desired to hold a with at GFF or disability appli- vidual with a who is an subsequent alleged to the time the discrimi employee cant or ... or natory Rather, conduct was committed. participant was a in the health (B) denying employment opportunities plan only by benefit virtue of his status as a job applicant or who is an employee. Appellant does not con otherwise individual with a dis- conclusion, argues test but that since the ...; ability many fringe fruits of benefits are realized (6) standards, using qualification em- during post-employment period, Con ployment tests or other selection criteria gress employees must have intended former that screen out or tend screen out an protected to be under the ADA as well. disability individual with a or a class of QID Neither the definition nor the ADA’s individuals with disabilities unless the stan- dard, “employee” criteria, definitions of and “discriminate” test other selection as provide support Appellant’s position. entity, used the covered is shown to be “employee” The ADA job-related defines as “an position question individu- and Thus, 12112(a) § 485(111), 7. disability.”); H.R.Rep. does not utilize the term Cong., “in- No. 101st manner, suggested by (1990), dividual" in a broad as reprinted 2d Sess. 71 1990 dissent, specific but rather within term of art-— interpretive regu- U.S.C.C.A.N. lations, see, "qualified disability” explicit- (it individual with a 1630.4(f) e.g., § 29 C.F.R. is un- — 12111(8). ly defined in lawful for an to discriminate on the "[f]ringe basis of in the §§ (defining "disability” See.28 C.F.R. 35.104 employment”); benefits available virtue of 56 (l)(ii)), (same to include HIV disease at 36.104 26, 1991) (EEOC Fed.Reg. (July (l)(iii)) (1995). 1630.4, Interpretative §§ Guidance on 29 C.F.R. 1630.5). statute, see, e.g., This is clear from the 12101(a)(5), 12112(a), (b)(4), (b)(2), §§ U.S.C. 485(11), legislative history, H.R.Rep. directly suggestion see No. 10.This definition rebuts the (1990), Cong., "nothing plain reprinted meaning 101st 2d Sess. 59 of the dissent that in 1990 ("[E]mployers may ['employee'] scope U.S.C.C.A.N. [the] term limits its to cur- deny coverage completely employees opposed employ- insurance to an rent to former person's diagnosis individual based on the ees." in Title VII should be necessity.11 to those found with business consistent is meaning. Fed.Reg. given the same 12112(b) supplied). (emphases §Id. 1991) (EEOC (July Interpretive history of the Moreover, legislative 1630.2(a)-(f)). on 29 C.F.R. Guidance .The purpose states specifically has further stated that but for Title EEOC functions” phrase “essential including the public not found exception for officials VII to “ensure QID definition within ‘employee’ has the same “the all require that continue to can employers given it is meaning [under ADA] including those employees, applicants under Title VII.” disabilities, perform the es- are able to sential, i.e., non-marginal functions of background, Appellant points Against this 485(11), H.R.Rep. No. quesiton [sic].” statute, contend- Title VII retaliation to the (1990), reprinted Cong., 2d Sess. although on its face ing that the statute sup- (emphasis 1990 U.S.C.C.A.N. “employees” “applicants for em- protects Thus, the ADA and a review of both plied). retaliation, illegal ployment” from Congress history legislative suggests its 2000e-3, have broadened the courts class I to protection of Title to limit the intended persons under the statute protected job appli- performing, or either Indeed, in con- include former perform, the essen- apply and can cants who statute, this rea- struing the retaliation Court their jobs which of available tial functions soned: maintain. employers language it true that of a While a conclusion argues against such Appellant interpreted according be to statute should history of legislative other the basis that on ordinary, contemporary and common its Op- ADA, Employment Equal as as well meaning plain-meaning ... rule this (EEOC) interpretive portunity Commission produce a applied not result should be should con- suggest that courts guidance, poli- actually inconsistent with the which is of the by analogy to Title VII strue the underlying the statute. In the instant cies (Title VII), 42 U.S.C. Rights Act of 1964 Civil case, interpretation a strict and narrow of (1994). general does the seq. et As 2000e “employee” to exclude former the word ADA, general rule of I of the of Title rule the obvious re- employees would undercut with re- prohibits VII discrimination Title purposes of VII. medial Title “terms, conditions, privileges or spect to the 1506, Corp., 850 F.2d Bailey v. USX 2000e-2(a). 42 U.S.C. employment.” of omitted). Cir.1988) (citation (11th Further, found Supreme Court coverage pursuant made insurance argument, Appel support his In farther of term, relationship is a condi- employment Cosmair, Inc., v. L’Ore lant relies on EEOC tion, as defined employment privilege or Div., F.2d 1085 Cir. Hair al Care Newport rule. general Title VII involving 1987), an anti-retaliation case Dry Dock Co. Shipbuilding and News post-employment benefits. receipt of 669, 682, EEOC, 103 S.Ct. 462 U.S. Cosmair, expanded Circuit the Fifth (1983). 77 L.Ed.2d “employee” to include meaning of the term disability- long terms, employees so employment-related respect to With to or arises is related discrimination that the based history of the ADA states legislative , relationship. employment incorporate out of the provisions in Title use at issue Cos- in Title F.2d at 1088. statute of the definitions several reference Employ Age mair was the Discrimination VII, “employee.” including (ADEA), § 621 et 29 U.S.C. Act of 1967 485(11); Cong., ment 2d Sess. H.R.Rep. No. (1994); Bailey a Title VII ease. seq. reprinted in 1990 U.S.C.C.A.N. Cosmair, see Bailey cited Since this Court that the definitions has observed EEOC 1509, however, Appellant identical, Bailey, 850 F.2d or almost identical” I “are solely 12112(b)(6) contemplates encountered discrimination Although the dissent maintains ap- employees specifically applicants by job “refer not current does plain language plicants,” employees suing protection. that former disagree. contends this We The cardinal rule affecting post-employ- statutory Circuit for retaliation language construction is that the ment benefits have a interpreted cause of action of a statute should be in accor- VII, by analogy, ordinary, contemporary, under Title Title I of dance with its reasons, Thus, Appellant meaning. Bailey, the ADA. because common 850 F.2d at 1509. Bourgeois’ participation Although may in the-health benefit resort in- the EEOC’s plan employment, terpretive guidelines out- of his arose for assistance in our pay arguably analysis, they refusal to constituted a controlling upon continuing Bank, period violation into the effective Court. See Mentor Sav. FSB v. Vin son, he is entitled to recover dam- 477 U.S. ages by Bourgeois for discrimination suffered clearly expressed L.Ed.2d 49 Absent after legislative the effective date of the ADA. contrary, plain intent to the language of the statute should be conclusive. Finally, Appellant cites EEOC v. South Safety Prod. Syl Consumer Comm’n GTE Ass’n, F.Supp. Dakota Wheat Growers vania, Inc., 102, 108, 100 (D.S.D.1988), in which the issue consid- 2056, 64 In adhering L.Ed.2d 766 governed ered was whether Title VII rule, plain language the cardinal we find the policy “provided health insurance after ter- clearly of the ADA demonstrates the intent employment, consequence mination of as a -Congress scope to limit the the Act to employment.” such at 1304. In only job applicants and current deciding question affirmative, capable of performing essential functions of district court found that “discrimination aris- jobs. clearly available We find no expressed ing employment out of the relationship is legislative suggesting intent that former em regardless unlawful of ‘whether or not the ployees such as should be covered person discriminated is an ” under the Act as well.12 discriminatory at the time of [the] conduct.’ (quoting Co., Dolge Pantchenko v. C.B. Appellant binding authority cites no dem- (2d Inc., 1052, 1055 Cir.1978)). 581 F.2d onstrating that protects the ADA former em- court concluded that it was unlawful for an And, ployees. exceptions, with two the employer to discriminate a former by Appellant discussing cases cited former post-employ employees’ rights to sue their former em- ment coverage. health insurance Id. at ployers involve claims which arose under ex- 1304-05. plicit provisions anti-retaliation contained in Title VII- and the ADEA.13 These retaliation upon foregoing, Based the Appel easily distinguishable. cases are argues lant this Court should look to Title seeking in employ VII to understand ADA Bailey This in Court cautioned that courts ment terms and conclude that former em interpretation should avoid a literal of a stat- ployees scope are included within the approach ute when such would frustrate Citing authority, no the dissent contends “[i]t cases which have so found have been in the 12. counter-intuitive, quite surprising, would be retaliatory and only exceptions context. The cited (as suppose does) majority Growers, to the Appellant nevertheless F.Supp. are Wheat at Congress protected 1302, intended to current em- binding upon a Title VII case not benefits, ployees’ fringe Court, but intended to then City Chicago, and Northen v. abruptly protection upon terminate that (N.D.Ill.1993). Northen, retire- F.Supp. 234 In former termination, precisely ment or at the time that Chicago police receiving disability pen officers designed those benefits are to materialize.” city require sions sued the over its decision to the clearly expressed legislative Since we find no pay retirees for health insurance. Congress suggest employ- intent of that former denying city's at 235. In motion to scope ees should be included within the of ADA dismiss, the district court held "[a]t protection, respectfully disagree. pleading stage early initial it is too to conclude that retirees are not covered under Thus, contrary to the dissent’s broad ADA.” Id. at 236. We assertion are not bound "[wjhen Northen, 1990, Congress enacted persuasive the ADAin decision is not in clearly it was established [in] Title VII that the court case law dismissed the case without ever 'employee' that the ees,” employ- addressing includes former whether the retirees were in fact overwhelming majority QIDs of Title VII under the ADA. qualified handicapped indi- Bailey, phrase “otherwise purpose. central the statute’s not defined the Rehabilitation vidual” is in this is no such risk There F.2d at 1509. Act, attempted to do so Supreme Court Bailey recognized, this Court case. As Community College v. in Southeastern “employee” to the term expansion of 2367, Davis, 2361, 99 S.Ct. employ- upon former standing to sue confer Davis, the Su- necessary pro- claiming retaliation ees of a licensed statutory preme considered claim Court meaning to anti-retaliation vide admission to practical nurse who denied in- congressional effectuate provisions and nursing program because of a however, college’s are, allega- no Id. There tent.14 402, disability. 442 at 99 S.Ct. case, hearing U.S. in this exclud- of retaliation tions analysis, Supreme Court 2365. In its at protection employees from former ing “[a]n otherwise policies determined with the not inconsistent Act is who is able to 504] is one contrary, person [under in- To underlying the statute. spite program’s requirements all of a any meet allow disabled ADA to terpreting the at 2367. handicap.” Id. at of his employee to sue a so, unable to do the Su- Finding plaintiff requirement un- QID essentially renders the 414, 99 Id. at preme denied relief. Act, Court with disabil- that an individual der position the essential desire a ity hold or perform, she can which he or

functions of Bourgeois into the In an to shoehorn effort meaningless. of “otherwise Supreme Court’s definition Davis, Appellant qualified person” alternative, attempts to Appellant In the nursing analogize the attempt EEOC requirement by reference QID redefine in Davis with the requirements” “program’s Act of §to 504 of the Rehabilitation to fulfill “requirements” needed correctly Appellant § 794 “program” participate in the health interpreting the Rehabil- that decisions Davis, stead, they argue need citing he may be discriminated capped individual” “require- the “qualified” to activity have meet federally been any funded under against plan.15 benefits of the health § the ments” 29 794. As program. or in retaliation furnish letters recommendation support, Again no the dissent counters: with having employee's filed discrimina for former am- provision would have The anti-retaliation EEOC); charges v. Ameri with tion hy ple scope former without claims Rutherford Commerce, 1163-64 565 F.2d can Bank sue for example, often For current 1977) (alleging in retaliation for Cir. that subjected to discrimination retaliation when charge filing complaint. discrimination having sex filed an EEOC because employer prospective necessary respect employer, it advised with to more It is no charge). to include former it is here VII retaliation than ‘provide meaning’ to the employees in to order the dissent argument, with 15. Consistent statute. seeking employee a former maintains may recognize that retaliation claims While we merely by QID may satisfy the definition benefits disagree employees, with by we filed current be ’’mak[ing] performing such essential functions ‘‘[t]he dissent's anti-retalia- conclusion the election, premiums, the appropriate pay[ing] the ample scope without provision have would tion legis- completely ignores position the etc.” This contrary, by employees." To the claims herein, history which of the ADAdiscussed lative by many claims are filed note that retaliation phrase including purpose states that example, post- employees alleging, for former employment QID definition is within the functions” “essential See, Bailey, blacklisting. e.g., employers to re- can continue to "ensure employer gave (alleging that former at 1507 F.2d including employees, applicants quire all prospective employer in to reference unfavorable disabilities, perform to are able those with having employee’s sex filed for former retaliation i.e., essential, non-marginal Pantchenko, functions suit); at 581 F.2d discrimination 485(11), H.R.Rep. No. job quesiton [sic].” to (alleging that former refused qualifications § comparing protected neces- under While because she was sary nursing program handicapped eligible to the for admission for benefits. required for to analysis, Davis to those 831 F.2d at 771-72. In its comparing ap- Eighth receive health benefits is like Supreme Circuit considered both the support Davis, plies oranges, Appellant to draws Court’s decision as well as the argument King, his from Modderno v. regulations “qualified federal which a define (D.D.C.1994), F.Supp. aff'd, 82 F.3d 1059 handicapped person” under the Rehabilita- (D.C.Cir.1996). Modderno, plaintiff following: tion Act as the brought alleging suit discrimination- on the (1) respect employment, With a hand- § basis of in violation of her who, icapped person with reasonable ac- at 41. The district court deter commodation, can the essential prima mined that establish a facie case “[t]o job question; functions of the 504, person handicapped under must be Act, under otherwise to receive (4) services, respect With other participate federally supported ben handicapped person who meets the essen- program, and excluded from the bene efit eligibility requirements tial receipt solely by fit handicap.” reason of her or his of such services. Valley 42 (citing Id. at v. Tennessee Pestevfield 84.3(k). 45 C.F.R. (6th Cir.1991)) th., 437, 441 941 F.2d Au (emphasis supplied). Although the district Eighth Circuit ruled out subheading ultimately granted court defendant’s motion (4), relied, upon plaintiff determining upon finding plaintiff dismiss not apply does to discrimination solely by denied benefits reason of her handi benefits, respect employee rather but 42-43, cap, Appellant argues id. at this Court health, to discrimination welfare and so- should nevertheless find Moddemo instruc providers cial applicants services toward at- giving meaning phrase tive in to the “other tempting Beauford, to obtain such services. qualified handicapped wise individual” under (1) Finding at subheading F.2d 771-72. the Rehabilitation Act. proper category governing to be the plain- claim, tiffs the court concluded that “both We decline this invitation. The Moddemo language interpre- of the statute and its Circuit, binding decision is not in this and we Supreme tation Court [in ] Davis indi- disagree holding. Ap- with the court’s What designed cate that section 504 was prohibit pellant, the EEOC and the Moddemo court discrimination employ- within the ambit of an manipulate Supreme have done is Court’s relationship ment in which the interpreting decision in phrase Davis potentially job able to do question.” qualified handicapped “otherwise individual” (emphasis supplied). essentially 504 to create a new category: “post-employment recip- persuaded by We reasoning Eighth appropriately ient.” The Eighth Beauford, Circuit finding re Circuit in it consis- jected argument an such congressional v. Fa tent with underlying intent Ti- Beauford Home, Flanagan’s Boys’ ther 831 F.2d I Bourgeois 768 tle of the ADA. Since was (8th Cir.1987), denied, job cert. applicant 485 U.S. 108 neither a employ- nor a current S.Ct. capable performing Beau ee essential functions ford, plaintiff perform job was unable to the es of an available with GFF at or subse- any job sential functions of quent' available the em alleged to the time the discriminatory ployer committed,16 maintained but claimed she was still QID conduct was he was not a (1990), Cong., reprinted Bourgeois may 2d Sess. 55 in 1990 While indeed have been able to (emphases supplied). U.S.C.C.A.N. perform job, the essential functions of a includ- ing job previously employed the he held while Arguing Bourgeois employed was at a GFS, employee he was neither a current of nor a competing shortly fast food restaurant until be- job applicant subsequent with GFF at or to the death, Appellant urges fore his this Court to alleged discriminatory time the conduct was development remand the case for of the record Accordingly, Bourgeois committed. we find Bourgeois' ability as to the “essential not covered under Title I of the ADA. job. functions” of his We decline to do so. Thus, Bourgeois reimbursement Ap- seeks recover ADA. meaning of the the within expenses incurred only for medical from to relief.17 not entitled pellant is date of the July effective after the Act; retroactively recov- he does not seek CONCLUSION IV. that date. In a expenses incurred before er em- Bourgeois, a former posture, this conclude in an almost We case identical a individual with “qualified alleg- an was not the continuation of ployee, Court held that ADA and disability” discriminatory policy as defined insurance edly health protection. violation, Act’s continuing “ongo- entitled therefore not constitutes Ap- appropriately denied actively by” court the em- ing policy The maintained district of the reconsideration motion for di- pellant’s that “each week which ployer such coverage order of dismissal. are denied insurance vorced men wrong.” Beavers v. ... constitutes Ameri AFFIRMED. Co., Pipe Iron 975 F.2d can Cast (11th Cir.1992); Fri also Bazemore v. see dissenting: ANDERSON, Judge, Circuit 385, 106 3000, L.Ed.2d day, (1986).1 Timothy majority today concludes The individual a “qualified was not acknowledges that is a majority AIDS The with disability” the Americans under awith They recog- the ADA. also (“ADA” Act”), solely “the Act Disabilities employer-pro- like nize that benefits employee. a former Bourgeois was because “terms, among are vided health benefits majority’s disagree respectfully I with conditions, employment” privileges of protection ADA provides that the conclusion nn. 6-7. by the Act. At 1525-26 & protected currently only active Thus, employer-provided provisions subject anti-discrimination to the clarify outset, important to it is At the far, agree ADA. with This defendant-appellee, Garner conduct However, majority then con- majority. (“GFF”). majority cor- Foods, The Inc. Fast protection un- Bourgeois lost all cludes that discharged Bourgeois rectly that GFF governing lan- contrary, the Quite the shortly ees. cap, all impose an AIDS plan to statutory provision uses guage general the 26,1992, of July date the before effective term “individual”: the broader ADA. alleged majority' the violation 1. The assumes infer that a opinion read to should be

17. This continuing As event an At 1526. no in the violation. has recourse here is a change in a health noted, binding prece- by makes a substantial result dictated is following discharge. plan benefit insurance dent. simply cause of action is no There ADA. entity Workers, Aerospace shall discriminate No covered Machinists and AFL- Terrell, against individual with dis- CIO v. 456 U.S. 102 S.Ct. ability because of such regard job application individual Keeping in liberally mind this mandate advancement, hiring, procedures, the statutes, construe remedial I turn to one discharge employees, employee compen- of aspect of the structure of the Act. The sation, terms, job training, and other con- majority acknowledges protection that the of ditions, employment. privileges and of Act fringe provided the extends to benefits 12112(a).2 Moreover, § if even the by employers, pension such as profit- and governing general provision had used the sharing plans plans.3 and health benefit It is “employee,” term rather than the term “indi- knowledge fringe matter of common

vidual,” nothing plain meaning of that plans routinely commonly benefit and cover scope employees to current limits its retirees and other former In- opposed employees; to former this is borne deed, pension profit-sharing plans and are out the case law discussed below. designed primarily post-employment years. entirely It is reasonable to infer that Finding plain no conclusive answer the Congress protection intended the Act’s meaning statutory language, of the turn for extend to routinely those individuals and guidance pur- to the structure and evident commonly fringe included within such statute, benefit pose legislative of history, plans. counter-intuitive, It would be law, and guidance provided by case and the (as quite surprising, suppose majority agency charged administrative with en- does) Congress nevertheless intended to forcing purpose the statute. The of the stat- protect benefits, employees’ fringe current expressly ute is possi- stated the broadest abruptly but intended to then terminate that ble terms: protection upon termination, retirement or purpose chapter It is the of this ... precisely the time that those benefits are provide comprehensive a clear and national designed to materialize. The structure of mandate for the elimination of discrimina- statute, clearly extending protection to tion individuals with disabilities. fringe plans, benefit Congress indicates that 12101(b)(1). § 42 U.S.C. In addition to its protection intended routinely for those purpose, clearly broad the statute is a reme- commonly covered such employer-provid- dial one. The law is well established that plans. ed remedial statutes are to be construed liberal- ly promote so as to purposes Act, remedial The legislative structure of the its Swint, history statute. Pullman-Standard interpretive regulations also 273, 275, 456 U.S. Congress establish that intended for (1982) (Title VII); L.Ed.2d 66 Corning Glass ADA to be construed in a manner similar to Brennan, Works v. 94 Title VII. The expressly text of the ADA (1974) 2234-35, incorporates L.Ed.2d 1 “powers, pro- remedies and Act); (Equal Pay Pipe Terrell v. U.S. & cedures set forth in Title VII.” 42 U.S.C. Co., 12117(a). Foundry Also, F.2d Cir. language much of the 1981) (Civil 1964), B Rights Unit Act of language rev’d the ADA mirrors found in Ttle grounds on other sub nom. Int’l example, Assoc. VII. For both define the term majority emphasizes language 12112(a) 2. The expressly protection Section extends 12112(b) which sets out a nonexclusive terms, list of conditions, to “other privileges (or action) types actions which constitute dis- employment.’’ The statute also makes several majority crimination. At 2975. takes com- indicating other references many fort in the fact that of the actions described 12112(b)(2) protected. See & applicants. refer to Not majority concedes that it is clear that nonexclusive, expressly this list but the focus of protected by citing benefits are description the subsection is on the of actions statute, legislative history, interpretive its discrimination, persons constitute not on the regulations. At & 7. 1526 n. event, protected by any the Act. In not all of the descriptions applicants. refer to 12112(b)(4) (6). §See &

1533 Rights guidance for the Civil employed tion we look “an individual “employee” mean interpreting ... cases Act of 1964 and Representa- House of employer.” by an statute.”); Corp., v. Russell 868 West wrote: Labor Committee and Education tives (M.D.Ala.1994) 313, (holding that 317 title set out in definitions of the Several analyze claims of discrimination the court "will Act of 1964 are Rights the Civil VII it would claims under Title under the ADA as by incorporated reference adopted or are VII). this common- Court should follow This employer, per- ... legislation i.e., in this — approach and do so as sense well. an “employee” means ... the term son “em- construed term This Court has by employer. employed individual Title context to effectuate ployee” VII 485(11), Cong., Sess. 2d H.R.Rep. No. enacting legisla- Congress’ purposes in 336. 54, 1990 U.S.C.C.A.N. reprinted, in Bailey Corp., 850 F.2d 1506 v. USX tion. use or I of this bill provisions in title (11th Cir.1988), held that a former em we many defi- by incorporate reference former em right to sue his ployee had Rights Act of the Civil in title nitions VII VII, despite under ployer for retaliation Title ...). employer (employee, of 1964 referred language of the statute which 149, 1990 U.S.C.C.A.N. reprinted in Id. at “applicants for em “employees” and that “ev ployment.” Id. at 1509. We noted held, upon ery court” had thus other based by incorporates legislation I of this [TJitle reading keeping with the sense “a common “em- of the term the definition reference Id.; see also Charl purpose of the statute.” VII of “employee” used title ployer” 1964_ Educ., 25 F.3d 194 Bd. ton v. Paramus Rights Act the Civil — -, (3rd denied, Cir.1994), U.S. cert. 76, reprinted in 1990 U.S.C.C.A.N. Id. at (1994); 590, 503 130 L.Ed.2d 115 S.Ct. International, Inc. 359; McDermott see also (6th Co., F.3d 541 v. Ohio Edison 7 E.E.O.C. S.Ct. 807, Wilander, v. U.S. Cir.1993); v. Chemical So- Passer American (1991) (“In 811, the absence (D.C.Cir.1991); E.E.O.C. ciety, 935 F.2d 322 indication, assume contrary of a (5th Corp., 927 F.2d v. Huber J.M. art], Congress term of [a a statute when uses Cir.1991) (assuming that former mean established it its intended have Title VII retaliation can sue under ing.”). allegedly retaliates refus- when also interpretive guidelines The EEOC profit-sharing pay post-employment ing to that, They “[i]n state support this view. benefits); Dolge Compa v. C.B. Pantchenko same ‘employee’ has the general, the term (2nd Cir.1978); Inc., Ruth F.2d 1052 ny, given it is under VIL” meaning that Commerce, 565 Bank v. American erford 1630.2(a)-(f).4 note guidelines Those CFR (10th Cir.1977); Robinson but see F.2d 1162 I of definitions Title are several that there (4th Cir.1995), Co., 70 F.3d 325 Oil Shell identical, or almost identi- the ADA that are — U.S.-, 116 S.Ct. granted, cert. VII, that, cal, in Title to ones found noted also We 134 L.Ed.2d given same to be terms are “[t]hese had em- been Bailey the same rationale they given ADA meaning under the context to age discrimination ployed Title VII.” employees. Bai protection to former extend approval (citing with at 1509 ley, 850 F.2d texts between the Based on the similarities Inc., Cosmair, Hair Care L’Oreal ADA Title E.E.O.C. v. purposes and remedial Cir.1987) Div., 821 F.2d congressional VII, evidence of as well as the (“The interpreted ... ‘employee’ intent, interpreting the look courts employee a former broadly: includes it Carparts Distri. Ctr. e.g. Title VII. See is related Assoc., alleged discrimination long as F.3d Automotive Wholesaler’s relation- employment Cir.1994) out of (1st (“In to or making our arises determina- Bank, Savings FSB v. guidance.” controlling upon Meritor guidelines, "while 4. EEOC Vinson, authority, consti- of their do the courts tute a reason judgment body experience and informed L.Ed.2d 49 may properly litigants resort to which courts and ship.”)). Following overwhelming severely this congres- case trude more on the obvious law, protect we held that “a strict and narrow inter- sional intent to employer-provided pretation ‘employee’ fringe of the word to exclude benefits. aAs matter of common experience, employees fringe designed former would undercut the obvi- purposes Bailey, provided primarily of Title post-employment ous remedial VII.” for the years. respectfully major- 850 F.2d at 1509. submit that the ity’s attempted Bailey distinction of and the significant Congress It is enacted the Bailey binding retaliation cases is flawed. is Congress legis- ADA in 1990. is deemed to precedent, govern and its rationale should against background of the federal late this case.5 common Astoria Fed. S & L v. law. Ass’n Solimino, 104, 108, expressly 501 U.S. The text of the statute also re- 2169-70, 115 to L.Ed.2d When Con- fers the Rehabilitation Act of 1973. 42 12201(a) gress clearly enacted the ADA in it was (“[Njothing chapter in this apply established Title VII case law that the term shall be construed to a lesser standard “employee” employees. applied includes former than the standards under title V of 1973.”). Congress is deemed to be familiar with such major- the Rehabilitation Act of The Congress ity acknowledges case law. used the Congress intended the “employee” same it interpret definition of used in courts to the ADA with reference expressly Title VII. The text of the ADA (citing to the Rehabilitation Act. at 15 M/S H.R.Rep. VII, legislative history 485(11), refers to Title Cong., 2d Sess. No. (1990)). clearly congressional indicates intention to Section 504 of the Rehabilitation incorporate prohibits Act established Title VII mean- discrimination an “oth- ing qualified “employee.” handicapped for the term erwise individual” any federally program. funded 29 U.S.C. majority purports “easily to distin- Analysis construing of the cases guish” Bailey and the other retaliation phrase provides insight logic into behind However, cases. rationale offered Congress’ nearly “quali- use identical distinction, beyond majority’s disability.” fied individual with a different, ipse dixit that retaliation cases are Supreme Court interpretation is that has held that “[a]n a broad of the term qualified person otherwise “employee” “necessary provide [under 504] is to mean- one who ing program’s is able to meet all of a provisions to anti-retaliation and effectu- requirements spite congressional handicap.” ate of his intent.” At 2977. It Davis, Community College Southeastern not at all apparent what difference there is 442 U.S. 99 S.Ct. between Title VII anti-retaliation claims and L.Ed.2d 980 by employees captured claims The Court former for discrimina- concept essence of this it respect tion with to when wrote: benefits. The ample anti-retaliation would have Section 504 compel its terms does not scope employees. without claims former disregard educational institutions to example, employees For current often sue disabilities of handicapped individuals or to subjected for retaliation when to discrimina- make substantial modifications in their having tion because of programs filed EEOC com- persons par- to allow disabled plaint. necessary Instead, It is no respect ticipate. more with requires only it that an to Title VII retaliation than it is here to “otherwise handicapped individu- employees include former “pro- order to al” not be participation excluded from in a meaning” Indeed, vide to the federally statute. program “solely by funded rea- denial employees of claims of former with handicap,” indicating only son his respect possession benefits would seem to in- handicap mere is not a Florida, (11th Cir.1986), Other non-retaliation Title VII cases have also State 805 F.2d 1542 protection extended grounds, See rev’d on other Ass’n, (1988) E.E.O.C. v. South Dakota Wheat (assuming Growers (D.S.D.1988) (rejecting standing have under Title VTI argument post- challenge that Tide VII discriminatory practices regard does not cover benefits); employment Long payments pension see plan). also from

1535 expected respect of him assuming ina- the functions with an ground permissible for occupied context. junction particular in a he before retirement. Un- bility to plan, only company’s der the additional added). (emphasis at 2366 at expected Bourgeois, “functions” of and other King, 871 in Modderno The court employees, retired or former are to make the (D.D.C.1994), 1059 aff'd, 82 F.3d F.Supp. 40 election, appropriate pay premiums, etc. (D.C.Cir.1996), a Rehabilitation addressed benefits, Fringe as such the one issue provision in the of Act claim of discrimination here, compensation part are all of the overall fringe plain benefits. health insurance provided package employees for as consider- Modderno, tiff, spouse of a was the former during ation for their service their active officer, for Foreign Service years company. Post-employment with the insur Benefit Plan health Foreign Service compensation, benefits are like deferred period that During the ance on that basis. enjoyed expected during post- are to be Plan, im by the Plan was covered she employment years. The common sense health benef a lower limit on mental posed concept, “qualified a individual with dis- its,6 for to the limit on benefits compared ability,” Modderno, is that there should be no discrimi- F.3d at physical ailments. stereotypes stigmas. not find that because of or Although the court did nation in viola legitimate to discrimination this limit amounted Differences in treatment are when recog implicitly it nonetheless tion of ability perform person based on the of a could assert a plan participant that a nized expected position. in the functions In of discrimination claim words, protections of the Act ac- other court fringe benefits. Moddemo district persons perform crue to disabled who can that, wrote expected performed by the functions to. be persons disability posi- without in prima a facie case the same To establish handicapped un- person a must be Supreme put tion. As the Court it in South Act, qualified to receive der the otherwise Community College eastern v. Davis: “Mere federally supported participate in possession handicap permissible of a is not a from -program, and be excluded ground assuming inability for function benefit solely by of her or his the benefit reason particular a context.” U.S. at handicap. added). (emphasis Applying S.Ct. at 2366 context, it that common sense the instant Modderno, (citing F.Supp. at Pester is obvious that retirees and other Valley Authority, 941 F.2d v. Tennessee field added)).7 (6th Cir.1991) prior em employees, who because their (emphasis post- ployment participate are entitled to and other Finally, my position that retirees plans, are not ex employment benefit protected are jobs pected perform the functions by a common sense read- supported ADA is they previously held before retirement. above, As noted ing of statute. Rather, they expected to meet whatever 12111(8) “qualified that a individ- provides are mandated benefit criteria disability” “an a means individual ual with plan accrual and continuation of cov ... who can including, example, any required erage, employment posi- functions of the essential years employment, honorable minimum employee, or former tion....” A retired payment premiums. discharge, and the already performed all of Bourgeois, has like law, $75,000 overwhelming ignored case changed to include 6. The Plan was benefits. background maximum for mental health lifetime which constitutes also,ignored Congress legislated, but the obvious Circuit, Eighth Flan Father 7. The Beauford light of the statute in common sense construction Cir.1987), Home, agan's Boys' 831 F.2d 768 history. purpose legislative Price See of its very employed to that of the a rationale similar Hopkins, 490 U.S. Waterhouse v. opinion majority no in this case. The makes (1989) ("We 104 L.Ed.2d overwhelming law Title VII case reference to the doorstep sense at the not leave our common need respectfully submit discussed above. I statute.”). case, interpret Beauford, majority opinion when like summary, respectfully submit that the majority “plain meaning” sees when there is majority ignores

none. The the common reading of the statute and the evident

sense

congressional purpose as revealed in the statute, legislative

structure of the its histo-

ry, overwhelming case law which

provided background which Con-

gress legislated.8 agree I Because cannot conclusions, majority’s respectfully

dissent. America,

UNITED STATES of

Plaintiff-Appellee,

v. KUMMER,

Thomas Lowranee

Defendant-Appellant. America,

UNITED STATES of

Plaintiff-Appellee,

v. JERNIGAN,

Robert Jerva

Defendant-Appellant. America,

UNITED STATES of

Plaintiff-Appellee, OGLESBY, Defendant-Appellant.

John E. 95-9066,

Nos. 95-9085 95-9165. Appeals,

United States Court of

Eleventh Circuit.

Aug. very I have squarely employee found few ADA cases was not a individual with a disability, addressing and thus could not the issue us. make an ADAclaim before A district court employer's disability plan. The Parlcer rejected in the Northern District of Illinois holding court based this on its conclusion that unpersuasive support and without case law totally had become disabled argument employment provisions that the of longer was no able to the essential func- apply ADAdo not to former Northen previously tions of the my she had held. (N.D.Ill. City Chicago, F.Supp. Parker, judgment, Beauford, like is flawed. It 1993). However, Metropolitan Parker v. Ins. Life overwhelming failed to address the Title VII case Co., (W.D.Term.1995), appeal provided background against law which docketed, (6th Cir.1995), No. 95-5269 followed Congress enacted the and failed to Home, Flanagan's Boys’ v. Father address the Beauford common sense construction of the (8th Cir.1987), F.2d 768 light and held that a purpose legislative Act in history. of its notes By analogy to following his termination. Act, statutory predecessor, the ADA’s itation Bourgeois to be they contend interpreting the precedent are relevant I of the “qualified” under H.R.Rep. No. considered ADA. provisions a current em- (1990), not have been re- he need 485(11), Cong., 2d Sess. “qualified” to applicant ployee or 304. Un- U.S.C.C.A.N. printed in 1990 job; in- an available functions of qualified handi- essential no “otherwise der

Notes

notes fired, thereby he was der the when paying future avoid of 1991 “to April employee. a former assuming the status him. At 1524. claims” for insurance health majority’s position is that The crux of the took that GFF majority fails to mention includes cur- statutory “employee” term action, clearly unlawful be which would this employees, and that the statuto- rently active effect, during the two ADA is in now that with a disabili- ry “qualified individual Congress included year phase-in that employee or a retired ty” does not include Act, July until ran from which persons because such other 26,1992, purpose of July effective date. longer perform the essential functions can no give employers period was to phase-in formerly they held. positions necessary to come actions time to take those follow, I dissent. For the reasons that requirements of the compliance into majority, I cannot conclude Unlike the taking to come into action Act. Instead language meaning of the plain Bour- GFF fired compliance with the protection current- limits the Act’s then, contin- statute Bourgeois’ because of geois and applicants, ly in- active company participation ued employ- other retirees and excludes plan, amended benefit GFF surance

Case Details

Case Name: Gonzales Ex Rel. Estate of Bourgeois v. Garner Food Services, Inc.

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Aug 2, 1996

Citation: 89 F.3d 1523

Docket Number: 95-8533

Court Abbreviation: 11th Cir.