Thоmas Larimer, a salesman for IBM, was fired and brings suit against the company under both ERISA and the Americans with Disabilities Act. The district judge granted summary judgment for the defendant.
Larimer was hired in August of 2000, and in May of the following year his wife, who was also an employee of IBM, gave birth to twin dаughters after only 29 weeks of pregnancy. At birth the two girls suffered from a variety of serious medical conditions owing to their prematurity, including respiratory distress, jaundice, apnea, and sepsis. One of the girls also had bleeding in the brain and the other had a lesion оn her nose. They were hospitalized for almost two months at a total expense of almost $200,000, all of which IBM’s employee health plan paid for. By the close of discovery in January 2003 the two children seemed to be healthy and normal, but there is some probability (how great a one is unknown) that they will develop serious physical or mental handicaps a§ they grow older.
[1] Larimer was fired in August of 2001, shortly after the children came home from the hospital. His principal claim is that IBM violated the Americans with Disаbilities Act, by firing him because his daughters are disabled. Are they? They seem fine at present, and so the question, left open in
Goldman v. Standard Ins. Co.,
Larimer must lose even if his daughters are disabled or regarded as disabled. He is suing not on their behalf but on his own, under a provision of the ADA that forbids discrimination against “a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.” 42 U.S.C. § 12112(b)(4). Notice first the oddity of requiring the plaintiff to show that
he
is a “qualified individual,” since the only definition in the ADA of a “qualified individual” is the definition of “qualified individual with a disability” as “an individual with a disability who, with or without reаsonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). If this is the “qualified individual” to which the association provision (section 12112(b)(4)) refers, then Larimer cannot obtain any relief under that provision because he has no disability! The term “qualified individual” in that provision must simply mean qualified to do one’s job, as assumed though nowhere discussed in the legislative history and the cases. H.R. Rep. 101-185, pt. 2, at 61-62 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 343—14; 29 C.F.R. § 1630.8;
Hilburn v. Murata Electronics North America, Inc.,
Three types of situation are, we believe, within the intended scope of the rarely litigated (this is our first case) association section. We’ll call them “expense,” “disability by association,” and “distraction.” They can be illustrated as follows: an employee is fired (or suffers some other adverse personnel action) because (1) (“expense”) his spouse has a disability that is costly to the employer because the spouse is covered by the company’s health plan; (2a) (“disability by association”) the employee’s homosexual companion is infected with HIV and the employer fears that the employee may also have become infected, through sexual contact with the companion; (2b) (another example of disability by association) one of the employеe’s blood relatives has a disabling ailment that has a genetic component and the employee is likely to develop the disability as well (maybe the relative is an identical twin); (3) (“distraction”) the employee is somewhat inattentive at work because his spouse or child has a disability that requires his attention, yet not so inattentive that to perform to his employer’s satisfaction he would need an accommodation, perhaps by being allowed to work shorter hours. The qualification concеrning the need for an accommodation (that is, special consideration) is critical because the right to an accommodation, being limited to disabled employees, does not extend to a nondisabled associate of a disabled person. 29 C.F.R. § 1630.8;
Den Hartog v. Wasatch Academy, supra,
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This case fits none of the categories. (2) can be ruled out peremptorily; the girls’ premature birth and resulting medical afflictions are neither communicable to Larimer nor predictive of his becoming ill or disabled. Likewise (3): there is no evidence that Larimer was absent or distracted at work because of his wife’s pregnancy or the birth and hospitalization of his daughters. As for (1), there is to begin with no evidence that health benefits are in the budget of the unit of IBM that employed and discharged Larimer. Cf.
Rogers v. International Marine Terminals, Inc.,
Having no evidence, Larimer falls back on the ubiquitous
McDonnell Douglas
test for a prima facie case of employment discrimination.
Den Hartog,
the case with the most extensive discussion of the ADA’s association provision, purports to use a version of the test that requires the plaintiff to show that “(1) the plaintiff was ‘qualified’ for the job at the time of the adverse employment action; (2) the plaintiff was subjected to adverse employment action; (3) the plaintiff was known by his employer at the time to have a relative or associate with a disability; (4) the adverse employment action occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the employer’s decision.”
A true parallel to
McDonnell Douglas
in the association setting would allow a prima facie case to be made out if the plaintiff, having shown that he was qualified in the sense of meeting his employer’s expecta
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tions (not a “qualified individual
with a disability,”
as we explained earlier), went on to show that his employer knew he had a relationship or association with a disabled individual, that the employer fired him, and that he was replaced by someone who lacked such a relationship or association. This would not however be a very sensible test — which shows that there may be limits even to the cloning of
McDonnell Douglas.
When deciding whether to adapt
McDonnell Douglas
to a new legal setting, a court should ask not “how can we create a formula closest tо that one?” but “what conditions imply a comparably high likelihood that the employer is violating the statute?” In the present setting a true
McDonnell Douglas
test, as distinct from the
Den Hartog
test, would generate the prima facie case of disability discrimination when only the most tenuous basis for an inference оf discrimination was present— for example when the employer knew merely that the plaintiff had a second cousin who was sterile, or that he had shaken hands with a person who was HIV-positive. The latter example would be ruled out by cases that hold thаt casual associations with a disabled person are not protected by the ADA,
Freilich v. Upper Chesapeake Health, Inc.,
Larimer’s alternative claim is that his discharge violated ERISA. The usual ERISA claim is for benefits, but the expense of the girls’ medical treatments was fully defrayed by IBM and what Larimer is arguing is that IBM fired him because of annoyance at having to pay so much, which may grow to be even more in the future should either or both of the girls develоp serious physical or mental handicaps. In other words, the claim is that IBM retaliated against Larimer for exercising his rights under IBM’s welfare benefits plan. 29 U.S.C. § 1140. He has no evidence of this, just as he has no evidence of disability discrimination, but in
Stone v. City of Indianapolis Public Utilities Division,
Had Larimer identified a similarly situated employee of IBM who had not applied for substantial welfare benefits yet had been treated better than he, he would have made out a prima facie case of retaliation under
Stone
— provided, as in any
McDonnell Douglas
case, that he also showed that he was performing his job in a manner that satisfied his employer’s legitimate expectations.
Coco v. Elmwood Care, Inc.,
Affirmed. ’