MEMORANDUM OPINION
I.
Plaintiff Harold Lewis has suffered from severe depression since 1979. In 1984, Lewis obtained employment with defendant Kmart Corporation (“Kmart”). In 1987, by virtue of his employment, he was offered and accepted an employee disability benefit plan issued by defendant Aetna Life Insurance Company (“Aetna”). The plan provided that physical disabilities would be covered through age sixty-five, but terminated benefits for mental disabilities after twenty-four months of coverage.
In March of 1995, plaintiff’s depression worsened, and he became unable to work. At first, he went on medical leave under Kmart’s leave program. However, by September of 1995, he began receiving monthly long-term disability benefit payments under the Aetna plan. On October 2, 1995, Aetna sent plaintiff a letter confirming his entitlement to benefits. See Kmart’s Ex. M. Although the letter referenced the different periods of coverage applied to physical and mental conditions, it did not specifically classify plaintiff’s condition as “mental” in nature. However, by the Spring of 1996, plaintiff had learned that Aetna had classified his disability as mental. See Plaintiff’s Dep. at 50-51, 53 (Aetna Ex. C). Plaintiff’s benefits were terminated on September 18, 1997, two years after he first began receiving them.
On July 2, 1996, more than a year before the termination of his benefits, plaintiff filed a charge of disability discrimination against defendant Kmart with the EEOC. See (EEOC Charge Aetna Ex. D.). In the charge, plaintiff argued that he had been subjected to discrimination on the basis of a mental disability because he was given less disability insurance coverage than a person with a physical disability. Plaintiff identified June 17, 1996 as the latest date on which the alleged discrimination had occurred. A Right to Sue letter issued and plaintiff filed a complaint in this court on August 6, 1997, alleging that defendant Kmart violated his rights under Title I of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12112, to terms and conditions of employment free from discrimination based on his disability, and that defendant Aetna violated his right under Title III of the ADA, 42 U.S.C. § 12182, to public accommodation free from discrimination based on his disability.
In the motions now before the Court, defendants each seek summary judgment in their favor, arguing that plaintiff’s claims are barred both by the relevant statute of limitations and by administrative exhaustion requirements.
*385 ii.
The Applicable Statute of Limitations
Because the ADA does not specify a statute of limitations for claims under either Title I or Title III, district courts must adopt the most analogous state statute of limitations. See 42 U.S.C. § 1988 (1994);
Wilson v. Garcia,
When the Statute Begins to Run
’ Having determined the appropriate statute of limitations, we next consider when the statute began to run as to plaintiff’s claims. Defendants each argue that plaintiffs lawsuit was filed after the statute of limitations had run. Specifically, Kmart argues that the limitations period began to run on plaintiffs claims in 1987, when plaintiff first received notice of the details of his Aetna benefits package. Aetna argues that the limitations period began to run in the Spring of 1996 when plaintiff became aware that Aetna had classified him as suffering from a mental rather than physical disability. Plaintiff responds that the statute of limitations did not begin to run until his claims became ripe for adjudication; . that is, not until he was faced with actual and imminent loss of benefits.
In order for a claim to be ripe, a plaintiff must show that he has suffered an “injury in fact,” meaning the “invasion of a legally protected interest that is ‘(a) concrete and particularized, and (b) actual and imminent, not conjectural or hypothetical.’ ”
Northeastern Fla. Contractors v. Jackson
v
ille,
The Supreme Court and the Fourth Circuit appear to have rejected plaintiffs logic.
See Delaware State College v. Ricks,
Similarly, in
English,
a nuclear safety worker was notified that she would be laid off but was given a ninety-day grace period in which to find other employment. Plaintiff waited until the ninety-day period had expired before filing a claim of retaliation with the Department of Labor.
English,
The application of these eases to the facts before this Court is clear: the one-year limitations period on plaintiffs claims must be deemed to run from the date when it became clearly and unequivocally obvious that he would be subjected to inferior coverage on the basis of his disability. This occurred when plaintiff learned in the Spring of 1996 that his disability had been classified as “mental” rather than “physical,” and that he would receive inferior coverage on the basis of that classification. Like the plaintiffs in Ricks and English, plaintiff might have avoided the effects of the discriminatory decision against him; i.e., he might have recovered within two years without ever feeling the bite of the plan’s inferior coverage of “mental” disabilities. However, this possibility is irrelevant in determining when his claims of discrimination became actionable.
In light of the principles set forth in Ricks and English, plaintiffs argument that his claims were unripe for adjudication until his benefits actually stopped arriving must fail. Indeed, more than a year before his benefits ran out, plaintiff explicitly recognized that Aetna’s differing treatment of mental and physical disabilities was itself an actual and *387 imminent harm actionable under the ADA See Plaintiffs EEOC Charge, filed July 2, 1996. In that charge, plaintiff stated:
I am unfairly being paid disability benefits for only a 2 year duration with respect to my mental disability in accordance with the terms of Respondent’s employee disability benefits plan ... By contrast, employees with physical illnesses are entitled to employee benefits under this plan until age, sixty-five [sic] ... I believe that I have been discriminated against because of my disability in violation of the Americans with Disabilities Act.
Id.
Although the statute of limitations for Lewis’ ADA claims began to run in the Spring of 1996, he did not file the present action until more than a year later, on August 6, 1997. For claims brought under ADA Title I, there is an administrative exhaustion requirement which would toll the statute. However, for Title III claims, there is no exhaustion requirement. Therefore, plaintiffs EEOC charge did not toll the statute of limitations as to his Title III claim against Aetna. Accordingly, Aetna’s Motion for Summary Judgment must be granted.
However, plaintiffs Title I claim against Kmart remains viable. A plaintiff alleging a violation of Title I must file a charge of discrimination with the EEOC within 180 days of the accrual of his cause of action.
See
42 U.S.C. § 12117(a). Here, Kmart argues that plaintiffs cause of action accrued in 1987 when plaintiff first received the allegedly discriminatory Aetna plan. This argument is directly contradicted by
Ricks,
where the Supreme Court held that the 180-day administrative filing requirement for a plaintiffs Title VII claim begins to run only after the plaintiff has received notice of an adverse decision against him.
See Ricks,
Kmart argues that this Court has previously concluded that Lewis was subjected to discrimination when he was offered a disability policy that provided inferior coverage for mental rather than physical disabilities.
See Lewis v. Aetna Ins. Co. et al.,
If your disability is the result of a mental condition, benefits under this plan are limited to 30 months from the date your disability commenced, unless you are confined in a health facility at the expiration of that period.
Id. Neither this letter nor others Lewis received like it indicate that his particular disability would be classified as “mental” under the Aetna plan. As such, these earlier letters were insufficient to provide the final, definite notice required under Ricks. 2 Moreover, as plaintiff has consistently maintained throughout this litigation, his depression is the result of a chemical imbalance in the brain, and might therefore be considered a physical disability. See, e.g., Plaintiff’s Memorandum in Support of Motion for Preliminary Injunction at 2, and attached expert declarations. As such, there is a genuine issue as to whether his disability was “exclusively organic” in nature and therefore subject to classification as a “physical” disability under the Aetna plan. 3 Finally, plaintiff eor *388 rectly argues that had he brought suit before Aetna classified his disability as mental, his claim would surely have been dismissed as unripe. 4
Given the clear holdings of Ricks and English on this issue, this Court concludes that the 180-day period for filing an EEOC complaint on plaintiffs Title I claim began to run when Lewis received actual notice that his disability had been classified as mental. Even if we assume that “Spring of 1996” means March 1, 1996, plaintiffs July 2, 1996 filing with the EEOC is well within the 180-day period. Plaintiffs Title I claim, therefore, is not barred by either the applicable statute of limitations or the administrative exhaustion requirement.
Continuing Violation
As an alternative to his ripeness argument, plaintiff argues that Aetna’s practice of distinguishing between mental and physical disability constitutes a continuing violation of the ADA. Both the Ricks court and the
English
court rejected this specific argument as well.
See Ricks,
Virginia Personal Injury and Accrual
As a final argument, Lewis contends that because 42 U.S.C. § 1988 directs this Court tq apply the most analogous state limitations period to his claims, we must also look to state law to determine when the limitations period began to run. Plaintiff argues that, following Virginia law, this Court must apply the rule of accrual used in state personal injury actions. Under that rule, a plaintiffs claim becomes actionable from the moment of injury. See Va.Code Ann. § 8.01-230. We disagree.
By adopting the Virginia Act’s limitations period for federal disability claims, the Fourth Circuit deliberately departed from the practice of other circuits which have adopted state personal injury limitations periods.
See Wolsky,
m.
We are not unsympathetic with plaintiffs concerns that our decision today could encourage a deluge of hypothetical claims which may never ripen into actual controversies or injuries. Plaintiff’s objections to the Ricks-Chardon rule were well stated by Justice Brennan in Chardon, who argued that:
The effect of this ruling will be to increase the number of unripe and anticipatory lawsuits in the federal courts — lawsuits that should not be filed until some concrete harm has been suffered, and until the parties, and the forces of time, have had maximum opportunity to resolve the controversy.
Chardon,
The Clerk is directed to forward copies of this Memorandum Opinion to counsel of record.
Notes
. The Court later extended this principle to include claims brought under § 1983.
See Chardon,
. Plaintiff’s situation may be likened to that of a person of mixed ancestry who takes employment at a company whose promotion policy openly discriminates against Hispanics. The employee knows that he has an Hispanic ancestor, but is unsure if he has enough Hispanic ancestry to be classified as "Hispanic” under the company policy. Only when he is classified as Hispanic and subjected to discriminatory treatment under the policy can he be certain of his cause of action.
. The Aetna plan provides that:
*388 After the first twenty-four months of the period of total disability, such period shall be deemed to terminate as of any date on which the total disability is caused by any condition other than a medically determinable physical impairment. ... [T]he term "medically determinable physical impairment" shall mean a physical impairment which results from anatomical or physiological- abnormalities which are exclusively organic and non-psychiatric in nature and which are demonstrated by medically acceptable clinical and laboratory techniques.
Aetna Group Insurance Policy at § 2(c).
. Plaintiff cites
N.Y. Ophthalmological Soc. v. Bowen,