CNA Ins. Cos., 96 F.3d 1039 (7th Cir. 1996), the Equal
Employment Opportunity Commission ("EEOC") brought suit asking
the court to decide to what extent, if at all, the ADA requires
equality of treatment among disabilities in benefit plans. CNA,
96 F.3d at 1041. In that case the former employee, Cynthia
Valladares-Toledo, received disability payments for a period of
two years because she suffered from a disability caused by a
mental or emotional disorder, whereas the long-term insurance
plan would have provided disability benefits until age 65 if she
had suffered from a physical disability. See CNA, 96 F.3d at
1041. Finding the EEOC's theory "at best, strained," the Seventh
Circuit held that a person with the status of "benefit recipient"
does not fit within the definition of someone filling an
employment position and therefore could not raise a cognizable
claim under Title I of the ADA. See CNA, 96 F.3d at 1043-45.
In Ford v. Schering-Plough Corp., 145 F.3d 601 (3d Cir.
1998), cert. denied, ___ U.S. ___, 119 S.Ct. 850, 142 L.Ed.2d
704 (1999), the Third Circuit examined the same issue and reached
the opposite conclusion. In Ford the Third Circuit ruled that
Title I's prohibition against discrimination with respect to
terms, conditions and privileges of employment, including fringe
benefits, permits former employees to sue their former employers
over their disability benefits. Ford, 145 F.3d at 608. In
reaching this conclusion, the Third Circuit found the statutory
language of the ADA ambiguous in that a plain reading of the
language restricted eligibility to sue under Title I to persons
who currently work, whereas the statute had the stated intent of
covering employment practices including benefits. See Ford, 145
F.3d at 606. To correct for this ambiguity, the Third Circuit
read out the "temporal qualifier," i.e., the notion that Title
I applied to persons who currently work, by defining the term
"qualified individual with a disability" to include "former
employees who were once employed with or without reasonable
accommodations yet who, at the time of suit, are completely
disabled." Ford, 145 F.3d at 606.
In Castellano v. New York, 142 F.3d 58 (2d Cir. 1998), cert.
denied, ___ U.S. ___, 119 S.Ct. 60, 142 L.Ed.2d 47 (1998), the
Second Circuit also faced the issue of whether former employees
could challenge post-employment fringe benefits but declined to
resolve the issue. Rather than addressing the issue directly, the
Second Circuit disposed of the case on the merits after "assuming
without deciding" that the former employees fell within the
classification of qualified individuals (under Title II of the
Upon review of the statute and considering the legislative
purpose of the ADA, this court concludes that the holding of
CNA squares more closely with the purpose of the ADA than do
the holdings of Ford or Castellano. In this respect, Congress
enacted the ADA to ensure non-discriminatory treatment in the
workplace for disabled individuals, or those with a perceived
disability, who could perform the essential functions of their
positions. See, e.g., Castellano, 142 F.3d at 68 ("Where the
alleged discrimination relates to the provision of
post-employment benefits, rather than to hiring, promotion, or
firing, Congress's expressed concern about qualifications is no
longer implicated.") For this reason, Congress limited ADA
coverage to those who fall within the term "qualified individual
with a disability," 42 U.S.C. § 12112(a), and Congress defined
that term as meaning an "individual with a disability who, with
or without reasonable accommodation, can perform the essential
functions of the employment position that such individual holds
or desires," 42 U.S.C. § 12111(8). Additionally, this court notes
that even the Third Circuit reached the conclusion that a plain
reading of the statutory language restricted Title I eligibility
to persons who currently work. See Ford, 145 F.3d at 606.
The court finds the statutory language clear on this point in
that a person
who cannot perform the essential functions of the job does not
fall within the coverage of Title I of the ADA. Consequently, the
court rules that the plaintiff is not a qualified individual with
a disability for purposes of coverage under Title I of the ADA.
Therefore, the court concludes that it cannot sustain a claim in
this case under Title I to challenge the different levels of
long-term disability benefits for mental and physical
disabilities. Accordingly, the court grants the defendants'
motions to dismiss Count One of the complaint.
2. Count Two — Title III of the ADA
In Count Two of her complaint the plaintiff alleges a claim of
discrimination under Title III of the ADA. In this respect, she
notes that section 12182(a) of the ADA prohibits public
accommodations from discriminating on the basis of disability in
the full and equal enjoyment of goods, services, facilities,
privileges and advantages or accommodations. See
42 U.S.C. § 12182(a); (Compl. ¶ 43). The plaintiff alleges that Fannie Mae
and UNUM constitute public accommodations under the statute and
that by denying her the same long-term disability benefits
afforded to other employees and insureds, the defendants
discriminated against her in violation of Title III of the ADA.
(See Compl. ¶¶ 44, 45, 46.)
In their motions to dismiss, both defendants assert that they
do not fall within the definition of a public accommodation, and
therefore the plaintiff may not bring suit against them under
Title III of the ADA. (See Def. Fannie Mae's Mot. to Dismiss,
16-18; Mem. in Supp. of Def. Unum's Mot. to Dismiss, 24-27.) The
plaintiff responds that Title III does not stop at physical
barriers but also extends to discrimination in goods, services
and privileges without respect to physical places. (See Pl.'s
Mem. in Opp'n to Defs.' Mots. to Dismiss, 19-20.)
In the Fennell case this court also examined the issue of
whether a former employee can bring suit under Title III of the
ADA to challenge a disparity in the duration of long-term
disability benefits for a physical versus mental disorder. This
court concluded that Title III of the ADA does not encompass such
suits. Again, because of the similarities of the two cases, the
court applies the reasoning in Fennell to the instant case and
arrives at the conclusion that the plaintiff does not have a
cause of action under Title III of the ADA. A restatement of the
court's reasoning in Fennell follows.
Title III prohibits discrimination by places of public
accommodation, as follows:
No individual shall be discriminated against on the
basis of disability in the full and equal enjoyment
of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public
accommodation by any person who owns, leases (or
leases to), or operates a place of public
42 U.S.C. § 12182(a). The question before this court, a question
the D.C. Circuit has not answered, is whether Title III's
prohibition is limited to physical places or whether it extends
to any commercial good or service.
An initial reading of the statute reflects a limitation based
on locality by use of the term "place" of public accommodation.
Additionally, the legislative history makes clear that Title III
regulates owners and lessees of places and not equality in terms
or conditions of employment. See Leonard F. v. Israel Discount
Bank of New York, 967 F. Supp. 802, 804 (S.D.N.Y. 1997) (citing
S.Rep. No. 116, 101st Cong., 1st Sess. 58 (1989)).
Further, the statute defines "public accommodation" in terms of
physical locations and structures. For example, the statute lists
twelve categories of a public accommodations, as follows: (A)
inn, hotel, motel; (B) restaurant, bar; (C) motion picture house,
theater, concert hall; (D) auditorium, convention center, lecture
hall; (E) bakery, grocery store, clothing store; (F) laundromat,
dry-cleaner, bank, barber
shop; (G) terminal, depot; (H) museum, library, gallery; (I)
park, zoo, amusement park; (J) nursery, elementary, secondary,
undergraduate, or postgraduate private school; (K) day care
center, senior citizen center, homeless shelter; and (L)
gymnasium, health spa, bowling alley, golf course. See
42 U.S.C. § 12181(7). Thus, all of the public accommodations listed
constitute physical places and structures, not goods or services
in general. In this respect, "the list of `public accommodations'
in 42 U.S.C. § 12818(7) suggests Title III covers only
discrimination against guests, customers, and clients of places
held open for service to the general public." Menkowitz v.
Pottstown Mem'l Med. Ctr., 154 F.3d 113, 126 (3d Cir. 1998).
A plain reading of the statute also indicates an intent by
Congress to prohibit discrimination, based on physical
disability, in places that accommodate. An employment
disability benefits plan does not constitute a place.
Furthermore, in Parker v. Metropolitan Life Ins. Co.,
121 F.3d 1006, 1014 (6th Cir. 1997) (en banc), the Sixth Circuit ruled
that a former employee's challenge of mental versus physical
disparity in a long-term disability plan, brought against her
former employer and the administering insurance company, did not
fall within the purview of Title III of the ADA.
The instant case involves Fannie Mae, a federally chartered
corporation that provides financial products and services
relating to housing, and UNUM, the provider of disability
insurance. UNUM issued a long-term disability plan covering
Fannie Mae's employees, and Fannie Mae adopted the plan. (See
Compl. ¶¶ 11, 12.) The plan provides different levels of benefits
depending upon whether for a mental versus physical disability,
and the plaintiff seeks to have this disparity addressed under
Title III of the ADA. Title III, however, covers places of public
accommodation, meaning physical locations or structures. The
long-term disability plan in question constitutes neither.
Consequently, the court concludes that Title III does not permit
the plaintiff's suit challenging the disparity in her long-term
disability benefits plan for benefits for mental versus physical
disorders. Accordingly, the court grants the defendants' motions
to dismiss Count Two of the complaint, the Title III claim.
3. Count Three — ERISA
a. Defendant UNUM's Motion to Dismiss
The plaintiff requests the sum of $2.5 million as compensatory
damages and the sum of $2.5 million as punitive damages against
Fannie Mae and UNUM, jointly and severally, under Counts One,
Two, Three and Four of the complaint. (Compl. at p. 14.)
Defendant UNUM moves to dismiss Count Three to the extent that
the plaintiff seeks to recover compensatory or punitive damages
on the ground that ERISA does not permit such damages. (Def.
UNUM's Mot. to Dismiss at 1, 27-28.)
Under the civil enforcement provisions of ERISA, a plan
participant or beneficiary may sue to recover benefits due under
the plan, to enforce the participants rights under the plan, or
to clarify rights to future benefits. See Pilot Life Ins. Co. v.
Dedeaux, 481 U.S. 41, 53, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987).
Relief may take the form of accrued benefits due, a declaratory
judgment on entitlement to benefits, or an injunction against an
administrator's refusal to pay benefits. See Pilot Life Ins.,
481 U.S. at 53, 107 S.Ct. 1549. A participant may also bring an
action for breach of fiduciary duty and under this cause of
action may seek removal of the fiduciary. See Pilot Life Ins.,
481 U.S. at 53, 107 S.Ct. 1549. In a civil enforcement action,
the court in its discretion may allow an award of attorney's fees
to either party. See Pilot Life Ins., 481 U.S. at 53, 107 S.Ct.
A suit for civil enforcement of ERISA does not, however, allow
damages. See Pilot Life Ins., 481 U.S. at 53-54, 107 S.Ct. 1549
(citing Massachusetts Mut. Life Ins. Co. v. Russell,
473 U.S. 134, 147, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985)). "The six
carefully integrated civil enforcement provisions found in
[ERISA] . . . provide strong evidence that Congress did not
intend to authorize other remedies that it simply forgot to
incorporate expressly." Russell, at 473 U.S. 146, 105 S.Ct.
3085. Additionally, ERISA does not authorize punitive damages.
See Varity Corp. v. Howe, 516 U.S. 489, 509, 116 S.Ct. 1065,
134 L.Ed.2d 130 (1996) ("[ERISA] . . . did not authorize the
plaintiff's suit for compensatory and punitive damages against an
administrator who had wrongfully delayed payment of her benefit
claim."); see also Mertens v. Hewitt Assoc., 508 U.S. 248, 260,
113 S.Ct. 2063, 124 L.Ed.2d 161 (1993) (explaining why ERISA does
not permit compensatory damages.) The plaintiff has not provided
any law to support her claim for punitive and compensatory
damages for her ERISA claim. Accordingly, because ERISA does not
allow punitive and compensatory damages, the court grants UNUM's
motion to strike the plaintiff's request for punitive and
compensatory damages from Count Three of the Complaint.
b. Fannie Mae's Motion to Dismiss
Fannie Mae moves to dismiss Count Three of the complaint on the
ground that an employer is not a proper party to an action to
recover benefits under an ERISA benefit plan, and therefore the
complaint fails to state a claim for recovery of benefits against
Fannie Mae. (See Def. Fannie Mae's Mot. to Dismiss at 19-20.)
Section 1132(d)(2) of ERISA provides that any money judgment
awarded under ERISA shall be enforceable only against the plan as
an entity and shall not be enforceable against any other person
unless liability against such person is established in the
person's individual capacity. See 29 U.S.C. § 1132(d)(2). In
Mertens the Supreme Court held than when an entity becomes a
fiduciary the entity becomes liable for damages under ERISA. See
Mertens, 508 U.S. at 262, 113 S.Ct. 2063. This raises the
question of whether Fannie Mae constitutes a fiduciary under the
plaintiff's long-term disability plan.
ERISA defines fiduciaries as not only the persons named as
fiduciaries by the benefit plan, 29 U.S.C. § 1102(a), but also
anyone else who exercises discretionary control or authority over
the plan's management, administration, or assets,
29 U.S.C. § 1002(21)(A). See Mertens, 508 U.S. at 250, 113 S.Ct. 2063. In
a person is a fiduciary with respect to a plan to the
extend (i) he exercises any discretionary authority
or discretionary control respecting management of
such plan or exercises any authority or control
respecting management or disposition of its assets,
(ii) he renders investment advice for a fee or other
compensation, direct or indirect, with respect to any
moneys or other property of such plan, or has any
authority or responsibility to do so, or (iii) he has
any discretionary authority or discretionary
responsibility in the administration of such plan.
29 U.S.C. § 1002(21)(A).