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March 29, 1999


The opinion of the court was delivered by: Urbina, District Judge.


Granting in Part and Denying in Part the Defendants' Motions to Dismiss;

Striking the Punitive and Compensatory

Damages and the Jury Demand from Count Three; and

Denying the Plaintiff's Motion for Partial Summary Judgment.


This matter arises under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101-12213, the Employment Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001-1461, and pendent and supplemental claims under the District of Columbia Human Rights Act ("DCHRA"), 2A D.C.Code Ann. §§ 1-2501, et seq. (See Compl. ¶¶ 2, 3.) The plaintiff, Jane Fitts, suffers from a medical ailment known as bi-polar disorder. (See Compl. ¶ 1.) She claims that the Federal National Mortgage Association ("Fannie Mae"), her former employer, and UNUM Life Insurance Company of America ("UNUM"), the insurance company that administers claims made under Fannie Mae's long term disability plan, have unlawfully discriminated against her by classifying her disorder as mental, rather than physical. (See Compl. ¶¶ 1, 20.) This classification has the effect of terminating her long-term disability benefits after twenty-four months, rather than at age 65. (Id.)


The plaintiff worked for Fannie Mae, a federally chartered corporation, until 1995, when her bi-polar disorder caused her to become disabled. (See Compl. ¶¶ 4, 17.) She began her legal career with Fannie Mae in 1982, as senior counsel, and worked her way up in Fannie Mae's legal department to the position of Associate General Counsel. (See Compl. ¶¶ 1, 6, 7, 16.) Under Fannie Mae's long term disability benefits plan, physically disabled persons receive benefits until age 65, whereas persons with mental, nervous or emotional diseases or disorders receive benefits for a maximum of only 24 months. (See Compl. ¶¶ 15, 20.) UNUM, a provider of disability insurance, issued and administered Fannie Mae's long term disability plan. (See Compl. ¶¶ 8, 12.)

When the plaintiff became disabled in 1995 she applied for and received short-term disability benefits. (See Compl. ¶ 18.) At the termination of her short-term benefits she applied for and began receiving long-term benefits. (See Compl. ¶ 19.) Shortly thereafter, UNUM notified the plaintiff that her long-term benefits would end after 24 months, since her bi-polar disorder fell within the mental illness limitation of 24 months. (See Compl. ¶ 20.) The plaintiff challenged the termination of her benefits to both Fannie Mae and UNUM, and UNUM declined to change its determination. (See Compl. ¶¶ 21, 22.) The record does not indicate what action, if any, Fannie Mae took in response to the plaintiff's request; however, the record makes clear that the plaintiff did not receive long-term disability benefits beyond the 24-month period.

Thereafter, the plaintiff brought this suit seeking compensatory, exemplary and declaratory relief. (See Compl. ¶ 1.) Her complaint contained five counts. Count One asserted a claim under Title I of the ADA; Count Two asserted a claim under Title III of the ADA; Count Three asserted a claim under ERISA; Count Four asserted a claim under the DCHRA; and Count Five claimed breach of contractual and common law duties. Defendant Fannie Mae moved to dismiss the entire complaint, and Defendant UNUM moved to dismiss Counts One, Two, Four and Five of the complaint, to dismiss Count Three to the extent that the plaintiff seeks to recover compensatory and punitive damages, and to strike the plaintiff's demand for a jury trial. The plaintiff moved for partial judgment on Count Three.


A. Legal Standard

1. Motion to Dismiss

A motion to dismiss pursuant to Rule 12(b)(6) does not test whether the plaintiff will prevail on the merits, but instead whether the claimant has properly stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The plaintiff bears the burden of persuasion to establish subject matter jurisdiction by a preponderance of the evidence. See Darden v. United States, 18 Cl.Ct. 855, 859 (1989); Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.), cert. denied, 501 U.S. 1222, 111 S.Ct. 2839, 115 L.Ed.2d 1007 (1991); Boudreau v. United States, 53 F.3d 81, 82 (5th Cir. 1995), cert. denied, 516 U.S. 1071, 116 S.Ct. 771, 133 L.Ed.2d 724 (1996). The court may dismiss a complaint for failure to state a claim only if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). When deciding a motion to dismiss, the court must accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiffs. See Antonelli v. Sheahan, 81 F.3d 1422, 1427 (7th Cir. 1996). However, the court need not accept as true the plaintiffs' legal conclusions. See Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986).

2. Motion for Summary Judgment

The district court may enter summary judgment where the moving party demonstrates that there exists no genuine issue of material fact in dispute and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Once the moving party has presented a properly supported motion, the nonmoving party must go beyond the pleading to identify evidence that allows a reasonable jury to find in the nonmovant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Drawing from affidavits, depositions, and answers to interrogatories, the nonmovant must identify specific facts indicating that a genuine issue exists for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Moreover, the court does not have the function at the summary judgment stage of weighing the evidence; rather, the court must determine whether sufficient evidence exists for a reasonable fact finder to return a verdict in the nonmovant's favor and warrant a trial. See Anderson, 477 U.S. at 249, 106 S.Ct. 2505.

B. Analysis

1. Count One — Title I of the ADA

In their motions for dismissal, both defendants assert that Title I of the ADA does not cover the plaintiff. (See Def. Fannie Mae's Mem. in Supp. at 10-13; Def. UNUM's Mem. in Supp. at 14-16.) In this respect, the defendants note that the ADA limits the protection of Title I to a "qualified individual with a disability," 42 U.S.C. § 12112(a), defined as an individual who, with or without reasonable accommodation, can perform the essential functions of the job, 42 U.S.C. § 12111(8). (See id.) Because the plaintiff cannot work due to her disability, the defendants argue, she cannot perform her job functions and therefore does not fall within the protections of Title I of the ADA. (See id.) The plaintiff argues that Title I does not specify that the plaintiff must be a "qualified individual with a disability" at the time the plaintiff files suit. (See Pl.'s Mem. in Opp'n to Defs.' Mots. to Dismiss at 17.)

This court, in the unrelated case of Fennell v. Aetna, 37 F. Supp.2d 40 (D.D.C. 1999), recently examined the issue of whether a former employee can bring suit under Title I of the ADA to challenge a disparity in the duration of long-term disability benefits for a physical versus mental disorder. In that case the court concluded that Title I of the ADA does not encompass such suits. 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 I of the ADA. A restatement of the court's reasoning in Fennell follows.

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 ...

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