The opinion
United States Court of Appeals,
Eleventh Circuit.
No. 95-8533.
August GONZALES, as Administrator of the Estate of Timothy
Bourgeois, deceased, Plaintiff-Appellant,
v.
GARNER FOOD SERVICES, INC.; Willis Corroon Administrative
Services Corporation; Willis Corroon Corporation of Georgia,
Defendants,
Garner Fast Foods, Inc., Defendant-Appellee,
American Association of Retired Persons (AARP); Equal Employment
Opportunity Commission (EEOC); American Medical Association,
American Public Health Association, American Foundation for AIDS
Research, Gay Men's Health Crisis; American Civil Liberties Union,
the ARC, Gay and Lesbian Advocates and Defenders, Inc., National
Alliance for the Mentally Ill, National Association of People With
AIDS, National Association of Protection and Advocacy Systems,
National Minority AIDS Council, Equal Employment Advisory Council,
Amici Curiae.
Aug. 2, 1996.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:93-CV-1639-JOF), J. Owen Forrester,
Judge.
Before ANDERSON and BLACK, Circuit Judges, and HENDERSON, Senior
Circuit Judge.
BLACK, Circuit Judge:
Appellant August Gonzales filed this action under Title I of
the Americans With Disabilities Act of 1990 (ADA), 1 alleging that
Defendants discriminated against a former employee, Timothy
Bourgeois, by imposing a cap for AIDS-related treatment on health
insurance benefit coverage Bourgeois elected to continue following
1
42 U.S.C. § 12101 et seq. (1994). Appellant initially
sought relief under both § 510 of the Employee Retirement Income
Security Act of 1974 (ERISA), 29 U.S.C. § 1140 (1994), and the
ADA, but subsequently dismissed the ERISA claim.
his termination. The district court granted a motion to dismiss
jointly filed by Garner Fast Foods, Inc. (GFF) and Garner Food
Services, Inc. (GFS). Thereafter, Appellant dismissed claims
against all Defendants other than GFF and moved for reconsideration
of the order of dismissal. This motion was denied, and Appellant
appeals. We affirm.
I. BACKGROUND2
Bourgeois was employed at a Hardee's restaurant, owned and
operated by GFS. GFS sponsored and administered a group welfare
benefit plan which provided health insurance coverage up to a $1
million lifetime limit. Bourgeois participated in the health
insurance benefit plan through his employment.
Bourgeois was diagnosed with AIDS in February 1991, and GFS
learned of his condition when he submitted health insurance claims
for medical treatment. GFS discharged him in April 1991 to avoid
paying future health insurance claims. Following his termination,
Bourgeois paid the necessary premiums to continue his health
insurance benefit coverage pursuant to the Consolidated Omnibus
Budget Reconciliation Act of 1985 (COBRA).3
At least partly because of Bourgeois' continued participation
in the health insurance benefit plan after his discharge, GFS
2
Since the district court decided this case on a motion to
dismiss, we have taken the allegations in Appellant's complaint
as true and have construed them liberally in favor of Appellant.
See Walker Process Equip., Inc. v. Food Mach. and Chem. Corp.,
382 U.S. 172, 174-75, 86 S.Ct. 347, 349, 15 L.Ed.2d 247 (1965).
3
29 U.S.C. § 1161 et seq. (1994). COBRA amended ERISA to
require each employer to allow former employees to elect to
continue coverage under the employer's group health insurance
plan for up to 18 months following termination of employment.
Id.
amended the plan on October 1, 1991, to cap AIDS-related treatment
to $10,000 annually with a lifetime maximum limit of $40,000. GFS
ceased operations on March 31, 1992. Thereafter, GFF continued
GFS' operations, and became the sponsor of Bourgeois' plan.4
Before he died on September 6, 1992, Bourgeois had exhausted the
benefits available to him under the AIDS cap limit and was denied
payment for claims submitted in excess, totaling approximately
$90,000.
II. STANDARD OF REVIEW
The district court's denial of Appellant's motion for
reconsideration is reviewed for abuse of discretion. See Region 8
Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 806
(11th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 683, 126
L.Ed.2d 651 (1994). Since our review requires us to focus on
conclusions of law made by the district court in granting the
motion to dismiss, we review these questions of law de novo. See
O'Reilly v. Ceuleers, 912 F.2d 1383, 1385 (11th Cir.1990).
III. DISCUSSION
The ADA was enacted on July 26, 1990, but did not become
4
At the outset, GFF denies liability on the bases that
Bourgeois worked only for GFS and not GFF and never sought
employment from GFF. Citing this Court's decision in Bud Antle,
Inc. v. Eastern Foods, Inc., 758 F.2d 1451 (11th Cir.1985),
Appellant counters that GFF is liable under theories of de facto
merger and mere continuation because GFF took over the operations
of the defunct GFS with identical officers, directors, and
virtually an identical sole shareholder, maintained the same
health plan and AIDS cap first implemented by GFS, and assumed
all liabilities of GFS. We decline to resolve this issue. Given
our holding that Appellant is not entitled to relief under the
ADA, GFF is not liable even if it is a successor in interest to
GFS.
effective until July 26, 1992.5 Pub.L. No. 101-336, § 108, 104
Stat. 327, 337 (1990). Title I of the ADA addresses disability
discrimination by employers.6 As applied to private employers,
Title I is not retroactive. See O'Bryant v. City of Midland, 9
F.3d 421, 422 (5th Cir.1993); see also 1990 U.S.C.C.A.N. 601
(statement by President George Bush upon signing S. 933). Against
this background, courts have concluded that Title I applies only to
wrongful acts committed after the effective date of the ADA. See,
e.g., O'Bryant, 9 F.3d at 422. Since the AIDS cap was implemented
in October 1991, prior to the effective date of the ADA, GFF argues
from the outset that Appellant's claim is barred.
Appellant counters that his claim is actionable on the basis
that the AIDS cap "endured" after the effective date of the ADA,
thereby making GFF's refusal to pay health benefits from then until
Bourgeois' death a continuing violation of the Act. In determining
whether maintenance of the AIDS cap after July 26, 1992,
constituted a continuing violation of the ADA, this Court must
distinguish between the present consequences of a one-time
violation, which would not qualify as a continuing violation, and
the continuation of the violation into the present, which would.
See Beavers v. American Cast Iron Pipe Co., 975 F.2d 792, 796 (11th
Cir.1992). As did the district court, we will assume for purposes
5
The dissent refers to the two year span between the
enactment and effective dates as a "phase-in period," the purpose
of which was "to give employers time to take those actions
necessary to come into compliance with the requirements of the
Act"; however, the dissent cites no authority indicating this
was Congress' intent.
6
It is undisputed that GFS met the ADA definition of
"employer." See 42 U.S.C. § 12111(5)(A).
of our analysis that the denial of AIDS-related health care
benefits after the effective date of the ADA could constitute a
continuing violation of the Act. See Bazemore v. Friday, 478 U.S.
385, 395, 106 S.Ct. 3000, 3006, 92 L.Ed.2d 315 (1986) ("A pattern
or practice that would have constituted a violation of Title VII,
but for the fact that the statute had not yet become effective,
became a violation upon Title VII's effective date."); Beavers,
975 F.2d at 797-98 (holding that the continued maintenance of a
pre-Title VII discriminatory benefits policy is actionable after
the effective date of Title VII as a continuing violation of the
statute).
GFF argues that even if maintaining the AIDS cap beyond the
effective date of the ADA could constitute a continuing violation,
Appellant fails to state a prima facie case of discrimination under
Title I of the Act. The Title I general rule states: "No covered
entity shall discriminate against a qualified individual with a
disability because of the disability of such individual in regard
to job application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job training, and
other terms, conditions, and privileges of employment." 42 U.S.C.
§ 12112(a) (emphasis supplied). A "qualified individual with a
disability" (QID) is defined as "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...."7 Id. § 12111(8) (emphasis supplied).
7
Thus, § 12112(a) does not utilize the term "individual" in
a broad manner, as suggested by the dissent, but rather within a
specific term of art—"qualified individual with a
The parties do not dispute that AIDS is a disability
recognized under the ADA. 8 It is further undisputed that fringe
benefits, such as employer-provided health benefits, are one set of
the "terms, conditions, and privileges of employment" protected
from unlawful discrimination under the ADA.9 Thus, Appellant
reasons, once Bourgeois took advantage of the opportunity to
participate in the group health insurance plan, he was entitled to
be provided with health insurance in a nondiscriminatory manner.
Bourgeois does not satisfy the QID requirement under the
plain language of the ADA, however, because he neither held nor
desired to hold a position with GFF at or subsequent to the time
the alleged discriminatory conduct was committed. Rather,
Bourgeois was a participant in the health benefit plan only by
virtue of his status as a former employee. Appellant does not
contest this conclusion, but argues that since the fruits of many
fringe benefits are realized during the post-employment period,
Congress must have intended former employees to be protected under
disability"—explicitly defined in § 12111(8).
8
See 28 C.F.R. §§ 35.104 (defining "disability" to include
HIV disease at (1)(ii)), 36.104 (same at (1)(iii)) (1995).
9
This is clear from the statute, see, e.g., 42 U.S.C. §§
12101(a)(5), 12112(a), (b)(2), (b)(4), the legislative history,
see H.R.Rep. No. 485(II), 101st Cong., 2d Sess. 59 (1990),
reprinted in 1990 U.S.C.C.A.N. 303, 341 ("[E]mployers may not
deny health insurance coverage completely to an individual based
on the person's diagnosis or disability."); H.R.Rep. No.
485(II), 101st Cong., 2d Sess. 71 (1990), reprinted in 1990
U.S.C.C.A.N. 445, 494, and the interpretive regulations, see,
e.g., 29 C.F.R. § 1630.4(f) (it is unlawful for an employer to
discriminate on the basis of disability in the provision of
"[f]ringe benefits available by virtue of employment"); 56
Fed.Reg. 35726, 35746 (July 26, 1991) (EEOC Interpretative
Guidance on 29 C.F.R. §§ 1630.4, 1630.5).
the ADA as well.
Neither the QID definition nor the ADA's definitions of
"employee" and "discriminate" provide support for Appellant's
position. The ADA defines "employee" as "an individual
employed by
an employer. "10 Id. § 12111(4) (emphasis supplied). Further, §
12112(b) provides:
As used in subsection (a) of this section, the term
"discriminate" includes—
(1) limiting, segregating, or classifying a job applicant
or employee in a way that adversely affects the opportunities
or status of such applicant or employee because of the
disability of such applicant or employee;
(2) participating in a contractual or other arrangement
or relationship that has the effect of subjecting a covered
entity's qualified applicant or employee with a disability to
the discrimination prohibited by this subchapter ...;
....
(5)(A) not making reasonable accommodations to the known
physical or mental limitations of an otherwise qualified
individual with a disability who is an applicant or employee
... or
(B) denying employment opportunities to a job applicant
or employee who is an otherwise qualified individual with a
disability ...;
(6) using qualification standards, employment tests or
other selection criteria that screen out or tend to screen out
an individual with a disability or a class of individuals with
disabilities unless the standard, test or other selection
criteria, as used by the covered entity, is shown to be
job-related for the position in question and is consistent
with business necessity.11
10
This definition directly rebuts the suggestion of the
dissent that "nothing in the plain meaning of [the] term
["employee'] limits its scope to current employees as opposed to
former employees."
11
Although the dissent maintains § 12112(b)(6) does not
specifically "refer to employees or applicants," the plain
language of the provision contemplates discrimination encountered
solely by job applicants and current employees.
Id. § 12112(b) (emphases supplied).
Moreover, the legislative history of the ADA specifically
states that the purpose of including the phrase "essential
functions" within the QID definition is to "ensure that employers
can continue to require that all applicants and employees,
including those with disabilities, are able to perform the
essential, i.e., the non-marginal functions of the job in quesiton
[sic]." H.R.Rep. No. 485(II), 101st Cong., 2d Sess. 55 (1990),
reprinted in 1990 U.S.C.C.A.N. 303, 337 (emphasis supplied). Thus,
a review of both the ADA and its legislative history suggests that
Congress intended to limit the protection of Title I to either
employees performing, or job applicants who apply and can perform,
the essential functions of available jobs which their employers
maintain.
Appellant argues against such a conclusion on the basis that
other legislative history of the ADA, as well as Equal Employment
Opportunity Commission (EEOC) interpretive guidance, suggest that
courts should construe the ADA by analogy to Title VII of the Civil
Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq. (1994).
As does the general rule of Title I of the ADA, the general rule of
Title VII prohibits discrimination with respect to the "terms,
conditions, or privileges of employment." 42 U.S.C. § 2000e-2(a).
Further, the Supreme Court found that health insurance coverage
made pursuant to an employment relationship is a term, condition,
or privilege of employment as defined under the Title VII general
rule. Newport News Shipbuilding and Dry Dock Co. v. EEOC, 462 U.S.
669, 682, 103 S.Ct. 2622, 2630, 77 L.Ed.2d 89 (1983).
With respect to employment-related terms, legislative history
of the ADA states that the provisions in Title I use or incorporate
by reference several of the definitions in Title VII, including the
term "employee." H.R.Rep. No. 485(II), 101st Cong., 2d Sess. 54,
reprinted in 1990 U.S.C.C.A.N. 303, 336. The EEOC has observed
that the definitions in Title I "are identical, or almost
identical" to those found in Title VII and should be given the same
meaning. 56 Fed.Reg. 35726, 35740 (July 26, 1991) (EEOC
Interpretive Guidance on 29 C.F.R. § 1630.2(a)-(f)). The EEOC has
further stated that but for a Title VII exception for public
officials not found in the ADA, "the term "employee' has the same
meaning [under the ADA] that it is given under Title VII." Id.
Against this background, Appellant points to the Title VII
retaliation statute, contending that although the statute on its
face only protects "employees" and "applicants for employment" from
illegal retaliation, 42 U.S.C. § 2000e-3, courts have broadened the
class of protected persons under the statute to include former
employees. Indeed, in construing the retaliation statute, this
Court reasoned:
While it is true that the language of a statute should be
interpreted according to its ordinary, contemporary and common
meaning ... this plain-meaning rule should not be applied to
produce a result which is actually inconsistent with the
policies underlying the statute. In the instant case, a
strict and narrow interpretation of the word "employee" to
exclude former employees would undercut the obvious remedial
purposes of Title VII.
Bailey v. USX Corp., 850 F.2d 1506, 1509 (11th Cir.1988) (citation
omitted).
In further support of his argument, Appellant relies on EEOC
v. Cosmair, Inc., L'Oreal Hair Care Div., 821 F.2d 1085 (5th
Cir.1987), an anti-retaliation case involving the receipt of
post-employment fringe benefits. In Cosmair, the Fifth Circuit
expanded the meaning of the term "employee" to include former
employees so long as the disability-based discrimination is related
to or arises out of the employment relationship. 821 F.2d at 1088.
The statute at issue in Cosmair was the Age Discrimination in
Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq. (1994);
Bailey was a Title VII case. Since this Court in Bailey cited
Cosmair, see Bailey, 850 F.2d at 1509, however, Appellant contends
that former employees suing in this Circuit for retaliation
affecting post-employment fringe benefits have a cause of action
under Title VII, and by analogy, Title I of the ADA. Thus,
Appellant reasons, because Bourgeois' participation in the health
benefit plan arose out of his employment, and the refusal to pay
benefits arguably constituted a continuing violation into the
effective period of the ADA, he is entitled to recover damages for
discrimination suffered by Bourgeois after the effective date of
the ADA.
Finally, Appellant cites EEOC v. South Dakota Wheat Growers
Ass'n, 683 F.Supp. 1302 (D.S.D.1988), in which the issue considered
was whether Title VII governed a health insurance policy "provided
after termination of employment, as a consequence of such
employment." 683 F.Supp. at 1304. In deciding that question in
the affirmative, the district court found that "discrimination
arising out of the employment relationship is unlawful regardless
of "whether or not the person discriminated against is an employee
at the time of [the] discriminatory conduct.' " Id. (quoting
Pantchenko v. C.B. Dolge Co., Inc., 581 F.2d 1052, 1055 (2d
Cir.1978)). The court concluded that it was unlawful for an
employer to discriminate against a former employee in the provision
of post-employment health insurance coverage. Id. at 1304-05.
Based upon the foregoing, Appellant argues this Court should
look to Title VII in seeking to understand ADA employment terms and
conclude that former employees are included within the scope of ADA
protection. We disagree. The cardinal rule of statutory
construction is that the language of a statute should be
interpreted in accordance with its ordinary, contemporary, and
common meaning. Bailey, 850 F.2d at 1509. Although we may resort
to the EEOC's interpretive guidelines for assistance in our
analysis, they are not controlling upon this Court. See Meritor
Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 2404, 91
L.Ed.2d 49 (1986). Absent clearly expressed legislative intent to
the contrary, the plain language of the statute should be
conclusive. Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc.,
447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). In
adhering to the cardinal rule, we find the plain language of the
ADA clearly demonstrates the intent of Congress to limit the scope
of the Act to only job applicants and current employees capable of
performing essential functions of available jobs. We find no
clearly expressed legislative intent suggesting that former
employees such as Bourgeois should be covered under the Act as
well.12
12
Citing no authority, the dissent contends "[i]t would be
counter-intuitive, and quite surprising, to suppose (as the
majority nevertheless does) that Congress intended to protected
Appellant cites no binding authority demonstrating that the
ADA protects former employees. And, with two exceptions, the only
cases cited by Appellant discussing former employees' rights to sue
their former employers involve claims which arose under explicit
anti-retaliation provisions contained in Title VII and the ADEA.13
These retaliation cases are easily distinguishable.
This Court in Bailey cautioned that courts should avoid a
literal interpretation of a statute when such an approach would
frustrate the statute's central purpose. Bailey, 850 F.2d at 1509.
There is no such risk in this case. As this Court in Bailey
recognized, the expansion of the term "employee" to confer standing
to sue upon former employees claiming retaliation is necessary to
provide meaning to anti-retaliation statutory provisions and
[sic] current employees' fringe benefits, but intended to then
abruptly terminate that protection upon retirement or
termination, at precisely the time that those benefits are
designed to materialize." Since we find no clearly expressed
legislative intent of Congress to suggest that former employees
should be included within the scope of ADA protection, we
respectfully disagree.
13
Thus, contrary to the dissent's broad assertion that
"[w]hen Congress enacted the ADA in 1990, it was clearly
established [in] Title VII case law that the term "employee'
includes former employees," the overwhelming majority of Title
VII cases which have so found have been in the retaliatory
context. The only exceptions cited by Appellant are Wheat
Growers, 683 F.Supp. at 1302, a Title VII case not binding upon
this Court, and Northern v. City of Chicago, 841 F.Supp. 234
(N.D.Ill.1993). In Northen, former Chicago police officers
receiving disability pensions sued the city over its decision to
require the retirees to pay for health insurance. 841 F.Supp. at
235. In denying the city's motion to dismiss, the district court
held that "[a]t the initial pleading stage it is too early to
conclude that retirees are not covered employees under the ADA."
Id. at 236. We are not bound by Northen, and the decision is not
persuasive in that the court dismissed the case without ever
addressing whether the retirees were in fact QIDs under the ADA.
effectuate congressional intent.14 Id. There are, however, no
allegations of retaliation in this case, and excluding former
employees from protection under the Act is not inconsistent with
the policies underlying the statute. To the contrary, interpreting
the ADA to allow any disabled former employee to sue a former
employer essentially renders the QID requirement under the Act,
that an individual with a disability hold or desire a position the
essential functions of which he or she can perform, meaningless.
In the alternative, Appellant attempts to redefine the QID
requirement by reference to § 504 of the Rehabilitation Act of
1973, 29 U.S.C. § 794 (1994). Appellant correctly notes that
decisions interpreting the Rehabilitation Act, the ADA's statutory
14
Again with no support, the dissent counters:
The anti-retaliation provision would have ample scope
without claims by former employees. For example,
current employees often sue for retaliation when
subjected to discrimination because of having filed an
EEOC complaint. It is no more necessary with respect
to Title VII retaliation than it is here to include
former employees in order to "provide meaning' to the
statute.
While we recognize that retaliation claims may be filed
by current employees, we disagree with the dissent's
conclusion that "[t]he anti-retaliation provision would have
ample scope without claims by former employees." To the
contrary, we note that many retaliation claims are filed by
former employees alleging, for example, post-employment
blacklisting. See, e.g., Bailey, 850 F.2d at 1507 (alleging
that former employer gave unfavorable reference to
prospective employer in retaliation for former employee's
having filed sex discrimination suit); Pantchenko, 581 F.2d
at 1054 (alleging that former employer refused to furnish
letters of recommendation in retaliation for former
employee's having filed discrimination charges with EEOC);
Rutherford v. American Bank of Commerce, 565 F.2d 1162,
1163-64 (10th Cir.1977) (alleging that in retaliation for
filing sex discrimination charge against former employer, it
advised prospective employer of charge).
predecessor, are relevant precedent in interpreting the provisions
of the ADA. H.R.Rep. No. 485(II), 101st Cong., 2d Sess. 23 (1990),
reprinted in 1990 U.S.C.C.A.N. 303, 304. Under § 504, no
"otherwise qualified handicapped individual" may be discriminated
against under any federally funded activity or program. 29 U.S.C.
§ 794. As the phrase "otherwise qualified handicapped individual"
is not defined in the Rehabilitation Act, the Supreme Court
attempted to do so in Southeastern Community College v. Davis, 442
U.S. 397, 406, 99 S.Ct. 2361, 2367, 60 L.Ed.2d 980 (1979). In
Davis, the Supreme Court considered a claim of a licensed practical
nurse who was denied admission to a college's nursing program
because of a hearing disability. 442 U.S. at 402, 99 S.Ct. at
2365. In its analysis, the Supreme Court determined that "[a]n
otherwise qualified person [under § 504] is one who is able to meet
all of a program's requirements in spite of his handicap." Id. at
406, 99 S.Ct. at 2367. Finding plaintiff unable to do so, the
Supreme Court denied relief. Id. at 414, 99 S.Ct. at 2371.
In an effort to shoehorn Bourgeois into the Supreme Court's
definition of "otherwise qualified person" in Davis, Appellant and
the EEOC attempt to analogize the nursing "program's requirements"
in Davis with the "requirements" Bourgeois needed to fulfill to
participate in the health benefits "program" following his
termination. By analogy to § 504, they contend that for Bourgeois
to be considered "qualified" under Title I of the ADA, he need not
have been a current employee or job applicant "qualified" to
perform essential functions of an available job; instead, citing
Davis, they argue he need only have been "qualified" to meet the
"requirements" of the health benefits plan.15
While comparing the qualifications necessary for admission to
the nursing program in Davis to those required for Bourgeois to
receive health benefits is like comparing applies to oranges,
Appellant draws support for his argument from Modderno v. King, 871
F.Supp. 40 (D.D.C.1994), aff'd, 82 F.3d 1059 (D.C.Cir.1996). In
Modderno, plaintiff brought suit alleging discrimination on the
basis of her disability in violation of § 504. 871 F.Supp. at 41.
The district court determined that "[t]o establish a prima facie
case under § 504, a person must be handicapped under the Act,
otherwise qualified to receive or participate in the federally
supported benefit or program, and excluded from the benefit solely
by reason of her or his handicap." Id. at 42 (citing Pesterfield
v. Tennessee Valley Auth., 941 F.2d 437, 441 (6th Cir.1991))
(emphasis supplied). Although the district court ultimately
granted defendant's motion to dismiss upon finding that plaintiff
was not denied benefits solely by reason of her handicap, id. at
42-43, Appellant argues this Court should nevertheless find
Modderno instructive in giving meaning to the phrase "otherwise
qualified handicapped individual" under the Rehabilitation Act.
15
Consistent with this argument, the dissent maintains that
a former employee seeking fringe benefits may satisfy the QID
definition merely by performing such essential functions as
"mak[ing] the appropriate election, pay[ing] the premiums, etc."
This position completely ignores the legislative history of the
ADA discussed herein, which states that the purpose of including
the phrase "essential functions" within the QID definition is to
"ensure that employers can continue to require that all
applicants and employees, including those with disabilities, are
able to perform the essential, i.e., the non-marginal functions
of the job in quesiton [sic]." H.R.Rep. No. 485(II), 101st
Cong., 2d Sess. 55 (1990), reprinted in 1990 U.S.C.C.A.N. 303,
337 (emphases supplied).
We decline this invitation. The Modderno decision is not
binding in this Circuit, and we disagree with the court's holding.
What Appellant, the EEOC and the Modderno court have done is
manipulate the Supreme Court's decision in Davis interpreting the
phrase "otherwise qualified handicapped individual" under § 504 to
essentially create a new job category: a "post-employment benefits
recipient." The Eighth Circuit appropriately rejected such an
argument in Beauford v. Father Flanagan's Boys' Home, 831 F.2d 768
(8th Cir.1987), cert. denied, 485 U.S. 938, 108 S.Ct. 1116, 99
L.Ed.2d 277 (1988). In Beauford, plaintiff was unable to perform
the essential functions of any available job the employer
maintained but claimed she was still protected under § 504 because
she was handicapped and eligible for fringe benefits. 831 F.2d at
771-72. In its analysis, the Eighth Circuit considered both the
Supreme Court's decision in Davis, as well as the federal
regulations which define a "qualified handicapped person" under the
Rehabilitation Act as the following:
(1) With respect to employment, a handicapped person who,
with reasonable accommodation, can perform the essential
functions of the job in question;
....
(4) With respect to other services, a handicapped person
who meets the essential eligibility requirements for the
receipt of such services.
45 C.F.R. § 84.3(k).
The Eighth Circuit ruled out subheading (4), upon which
plaintiff relied, determining the provision does not apply to
discrimination with respect to employee benefits, but rather to
discrimination by health, welfare and social services providers
toward applicants attempting to obtain such services. Beauford,
831 F.2d at 771-72. Finding subheading (1) to be the proper
category governing plaintiff's claim, the court concluded that
"both the language of the statute and its interpretation by the
Supreme Court [in Davis ] indicate that section 504 was designed to
prohibit discrimination within the ambit of an employment
relationship in which the employee is potentially able to do the
job in question." Id. at 771 (emphasis supplied).
We are persuaded by the reasoning of the Eighth Circuit in
Beauford, finding it consistent with congressional intent
underlying Title I of the ADA. Since Bourgeois was neither a job
applicant nor a current employee capable of performing essential
functions of an available job with GFF at or subsequent to the time
the alleged discriminatory conduct was committed,16 he was not a QID
within the meaning of the ADA. Thus, Appellant is not entitled to
relief.17
IV. CONCLUSION
We conclude that Bourgeois, a former employee, was not a
16
Arguing that Bourgeois was employed at a competing fast
food restaurant until shortly before his death, Appellant urges
this Court to remand the case for development of the record as to
Bourgeois' ability to perform the "essential functions" of his
job. We decline to do so. While Bourgeois may indeed have been
able to perform the essential functions of a job, including the
job he held while previously employed by GFS, he was neither a
current employee of nor a job applicant with GFF at or subsequent
to the time the alleged discriminatory conduct was committed.
Accordingly, we find Bourgeois was not covered under Title I of
the ADA.
17
This opinion should not be read to infer that a former
employee has no recourse in the event an employer makes a
substantial change in a health insurance benefit plan following
discharge. There is simply no cause of action under the ADA.
"qualified individual with a disability" as defined under the ADA
and therefore not entitled to the Act's protection. The district
court appropriately denied Appellant's motion for reconsideration
of the order of dismissal.
AFFIRMED.
ANDERSON, Circuit Judge, dissenting:
The majority today concludes that Timothy Bourgeois was not a
"qualified individual with a disability" under the Americans with
Disabilities Act ("ADA" or "the Act"), solely because Bourgeois was
a former employee. I respectfully disagree with the majority's
conclusion that the ADA provides protection only for currently
active employees.
At the outset, it is important to clarify the conduct of the
defendant-appellee, Garner Fast Foods, Inc. ("GFF"). The majority
correctly notes that GFF discharged Bourgeois in April of 1991 "to
avoid paying future health insurance claims" for him. At 2972.
The majority fails to mention that GFF took this action, which
would clearly be unlawful now that the ADA is in effect, during the
two year phase-in that Congress included in the Act, which ran from
July 26, 1990, until the July 26, 1992, effective date. The
purpose of this phase-in period was to give employers time to take
those actions necessary to come into compliance with the
requirements of the Act. Instead of taking action to come into
compliance with the ADA, GFF fired Bourgeois and then, because of
Bourgeois' continued participation in the company health insurance
benefit plan, GFF amended that plan to impose an AIDS cap, all
shortly before the July 26, 1992, effective date of ADA.
Bourgeois seeks to recover reimbursement only for medical
expenses incurred from and after the July 26, 1992, effective date
of the Act; he does not seek to retroactively recover expenses
incurred before that date. In a case in an almost identical
posture, this Court held that the continuation of an allegedly
discriminatory health insurance policy constitutes a continuing
violation, an "ongoing policy actively maintained by" the employer
such that "each week in which divorced men are denied insurance
coverage ... constitutes a wrong." Beavers v. American Cast Iron
Pipe Co., 975 F.2d 792, 798 (11th Cir.1992); see also Bazemore v.
Friday, 478 U.S. 385, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986).1
The majority acknowledges that AIDS is a disability under the
ADA. They also recognize that fringe benefits like
employer-provided health benefits are among the "terms, conditions,
and privileges of employment" protected by the Act. At 2974 & nn.
6-7. Thus, employer-provided fringe benefits are subject to the
anti-discrimination provisions of the ADA. This far, I agree with
the majority. However, the majority then concludes that Bourgeois
lost all protection under the ADA when he was fired, thereby
assuming the status of a former employee. The crux of the
majority's position is that the statutory term "employee" includes
only currently active employees, and that the statutory term
"qualified individual with a disability" does not include a retired
employee or other former employee because such persons can no
longer perform the essential functions of the positions which they
1
The majority assumes that the violation alleged here is a
continuing violation. At 2973. As noted, this result is
dictated by binding precedent.
formerly held. For the reasons that follow, I dissent.
Unlike the majority, I cannot conclude that the plain meaning
of the language of the statute limits the Act's protection to
currently active employees or job applicants, and excludes retirees
and other former employees. Quite the contrary, the governing
language of the general statutory provision uses the broader term
"individual":
No covered entity shall discriminate against a qualified
individual with a disability because of the disability of such
individual in regard to job application procedures, the
hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and
privileges of employment.
42 U.S.C. § 12112(a).2 Moreover, even if the governing general
provision had used the term "employee," rather than the term
"individual," nothing in the plain meaning of that term limits its
scope to current employees as opposed to former employees; this is
borne out by the case law discussed below.
Finding no conclusive answer in the plain meaning of the
statutory language, I turn for guidance to the structure and
evident purpose of the statute, the legislative history, the case
law, and the guidance provided by the administrative agency charged
with enforcing the statute. The purpose of the statute is
expressly stated in the broadest possible terms:
2
The majority emphasizes the language of § 12112(b) which
sets out a nonexclusive list of actions (or types of action)
which constitute discrimination. At 2975. The majority takes
comfort in the fact that many of the actions described refer to
employees or applicants. Not only is this list expressly
nonexclusive, but the focus of the subsection is on the
description of actions that constitute discrimination, not on the
persons protected by the Act. In any event, not all of the
descriptions refer to employees or applicants. See § 12112(b)(4)
& (6).
It is the purpose of this chapter ... to provide a clear and
comprehensive national mandate for the elimination of
discrimination against individuals with disabilities.
42 U.S.C. § 12101(b)(1). In addition to its broad purpose, the
statute is clearly a remedial one. The law is well established
that remedial statutes are to be construed liberally so as to
promote the remedial purposes of the statute. Pullman-Standard v.
Swint, 456 U.S. 273, 275, 102 S.Ct. 1781, 1783, 72 L.Ed.2d 66
(1982) (Title VII); Corning Glass Works v. Brennan, 417 U.S. 188,
208, 94 S.Ct. 2223, 2234-35, 41 L.Ed.2d 1 (1974) (Equal Pay Act);
Terrell v. U.S. Pipe & Foundry Co., 644 F.2d 1112, 1123 (5th Cir.
Unit B 1981) (Civil Rights Act of 1964), rev'd on other grounds sub
nom. Int'l Assoc. of Machinists and Aerospace Workers, AFL-CIO v.
Terrell, 456 U.S. 955, 102 S.Ct. 2028, 72 L.Ed.2d 479 (1982).
Keeping in mind this mandate to liberally construe remedial
statutes, I turn to one aspect of the structure of the Act. The
majority acknowledges that the protection of the Act extends to
fringe benefits provided by employers, such as pension and
profit-sharing plans and health benefit plans.3 It is a matter of
common knowledge that fringe benefit plans routinely and commonly
cover retirees and other former employees. Indeed, pension and
profit-sharing plans are designed primarily for the post-employment
years. It is entirely reasonable to infer that Congress intended
the Act's protection to extend to those individuals routinely and
3
Section 12112(a) expressly extends protection to "other
terms, conditions, and privileges of employment." The statute
also makes several other references indicating that fringe
benefits are protected. See § 12112(b)(2) & (4). The majority
concedes that it is clear that fringe benefits are protected by
the ADA, citing the statute, its legislative history, and the
interpretive regulations. At 2974 & n. 7.
commonly included within such fringe benefit plans. It would be
counter-intuitive, and quite surprising, to suppose (as the
majority nevertheless does) that Congress intended to protect
current employees' fringe benefits, but intended to then abruptly
terminate that protection upon retirement or termination, at
precisely the time that those benefits are designed to materialize.
The structure of the statute, in clearly extending protection to
fringe benefit plans, indicates that Congress intended protection
for those routinely and commonly covered by such employer-provided
plans.
The structure of the Act, its legislative history and the
interpretive regulations also establish that Congress intended for
the ADA to be construed in a manner similar to Title VII. The text
of the ADA expressly incorporates the "powers, remedies and
procedures set forth in Title VII". 42 U.S.C. § 12117(a). Also,
much of the language in the ADA mirrors language found in Title
VII. For example, both define the term "employee" to mean "an
individual employed by an employer." The House of Representatives
Education and Labor Committee wrote:
Several of the definitions set out in title VII of the Civil
Rights Act of 1964 are adopted or are incorporated by
reference in this legislation—i.e., ... employer, person ...
the term "employee" means an individual employed by an
employer.
H.R.Rep. No. 485(II), 101st Cong., 2d Sess. 54, reprinted in 1990
U.S.C.C.A.N. 336.
The provisions in title I of this bill use or incorporate by
reference many of the definitions in title VII of the Civil
Rights Act of 1964 (employee, employer ...).
Id. at 149, reprinted in 1990 U.S.C.C.A.N. 432
[T]itle I of this legislation incorporates by reference the
definition of the term "employer" and "employee" used in title
VII of the Civil Rights Act of 1964....
Id. at 76, reprinted in 1990 U.S.C.C.A.N. 359; see also McDermott
International, Inc. v. Wilander, 498 U.S. 337, 342, 111 S.Ct. 807,
811, 112 L.Ed.2d 866 (1991) ("In the absence of a contrary
indication, we assume that when a statute uses [a term of art],
Congress intended it to have its established meaning.").
The EEOC interpretive guidelines also support this view. They
state that, "[i]n general, the term "employee' has the same meaning
4
that it is given under Title VII." 29 CFR § 1630.2(a)-(f). Those
guidelines note that there are several definitions in Title I of
the ADA that are identical, or almost identical, to ones found in
Title VII, and that, "[t]hese terms are to be given the same
meaning under the ADA that they are given under Title VII." Id.
Based on the similarities between the texts and remedial
purposes of the ADA and Title VII, as well as the evidence of
congressional intent, courts interpreting the ADA look to Title
VII. See e.g. Carparts Distri. Ctr. v. Automotive Wholesaler's
Assoc., 37 F.3d 12, 16 (1st Cir.1994) ("In making our determination
we look for guidance to the Civil Rights Act of 1964 ... and cases
interpreting that statute."); West v. Russell Corp., 868 F.Supp.
313, 317 (M.D.Ala.1994) (holding that the court will analyze claims
of discrimination under the ADA as it would claims under Title
VII). This Court should follow this common-sense approach and do
4
EEOC guidelines, "while not controlling upon the courts by
reason of their authority, do constitute a body of experience and
informed judgment to which courts and litigants may properly
resort for guidance." Meritor Savings Bank, FSB v. Vinson, 477
U.S. 57, 65, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986).
so as well.
This Court has construed the term "employee" in the Title VII
context to effectuate Congress' purposes in enacting that
legislation. In Bailey v. USX Corp., 850 F.2d 1506 (11th
Cir.1988), we held that a former employee had the right to sue his
former employer for retaliation under Title VII, despite the
language of the statute which referred only to "employees" and
"applicants for employment." Id. at 1509. We noted that "every
other court" had thus held, based upon "a common sense reading in
keeping with the purpose of the statute." Id.; see also Charlton
v. Paramus Bd. of Educ., 25 F.3d 194 (3rd Cir.1994), cert. denied,
--- U.S. ----, 115 S.Ct. 590, 130 L.Ed.2d 503 (1994); E.E.O.C. v.
Ohio Edison Co., 7 F.3d 541 (6th Cir.1993); Passer v. American
Chemical Society, 935 F.2d 322 (D.C.Cir.1991); E.E.O.C. v. J.M.
Huber Corp., 927 F.2d 1322 (5th Cir.1991) (assuming that former
employee can sue under Title VII retaliation provision when
employer allegedly retaliates by refusing to pay post-employment
profit-sharing benefits); Patchenko v. C.B. Dolge Company, Inc.,
581 F.2d 1052 (2nd Cir.1978); Rutherford v. American Bank of
Commerce, 565 F.2d 1162 (10th Cir.1977); but see Robinson v. Shell
Oil Co., 70 F.3d 325 (4th Cir.1995), cert. granted, --- U.S. ----,
116 S.Ct. 1541, 134 L.Ed.2d 645 (1996). We also noted in Bailey
that the same rationale had been employed in the age discrimination
context to extend protection to former employees. Bailey, 850 F.2d
at 1509 (citing with approval E.E.O.C. v. Cosmair, Inc., L'Oreal
Hair Care Div., 821 F.2d 1085, 1088 (5th Cir.1987) ("The term
"employee' ... is interpreted broadly: it includes a former
employee as long as the alleged discrimination is related to or
arises out of the employment relationship.")). Following this
overwhelming case law, we held that "a strict and narrow
interpretation of the word "employee' to exclude former employees
would undercut the obvious remedial purposes of Title VII."
Bailey, 850 F.2d at 1509.
It is significant that Congress enacted the ADA in 1990.
Congress is deemed to legislate against the background of the
federal common law. Astoria Fed. S & L Ass'n v. Solemino, 501 U.S.
104, 108, 111 S.Ct. 2166, 2169-70, 115 L.Ed.2d 96 (1991). When
Congress enacted the ADA in 1990, it was clearly established Title
VII case law that the term "employee" includes former employees.
Congress is deemed to be familiar with such case law. In the ADA,
Congress used the same definition of "employee" that it used in
Title VII. The text of the ADA expressly refers to Title VII, and
the legislative history clearly indicates a Congressional intention
to incorporate the established Title VII meaning for the term
"employee."
The majority purports to "easily distinguish" Bailey and the
other retaliation cases. However, the only rationale offered for
the distinction, beyond the majority's ipse dixit that retaliation
cases are different, is that a broad interpretation of the term
"employee" was "necessary to provide meaning to anti-retaliation
provisions and effectuate congressional intent." At 2977. It is
not at all apparent what difference there is between Title VII
anti-retaliation claims and claims by former employees for
discrimination with respect to fringe benefits. The
anti-retaliation provision would have ample scope without claims by
former employees. For example, current employees often sue for
retaliation when subjected to discrimination because of having
filed an EEOC complaint. It is no more necessary with respect to
Title VII retaliation than it is here to include former employees
in order to "provide meaning" to the statute. Indeed, the denial
of claims of former employees with respect to fringe benefits would
seem to intrude more severely on the obvious congressional intent
to protect employer-provided fringe benefits. As a matter of
common experience, fringe benefits are designed and provided
primarily for the post-employment years. I respectfully submit
that the majority's attempted distinction of Bailey and the
retaliation cases is flawed. Bailey is binding precedent, and its
rationale should govern this case.5
The text of the statute also expressly refers to the
Rehabilitation Act of 1973. 42 U.S.C. § 12201(a) ("[N]othing in
this chapter shall be construed to apply a lesser standard than the
standards applied under title V of the Rehabilitation Act of
1973."). The majority acknowledges that Congress intended the
courts to interpret the ADA with reference to the Rehabilitation
Act. M/S at 15 (citing H.R.R . No. 485(II), 101st Cong., 2d Sess.
EP
23 (1990)). Section 504 of the Rehabilitation Act prohibits
5
Other non-retaliation Title VII cases have also extended
protection to former employees. See E.E.O.C. v. South Dakota
Wheat Growers Ass'n, 683 F.Supp. 1302 (D.S.D.1988) (rejecting the
argument that Title VII does not cover post-employment health
benefits); see also Long v. State of Florida, 805 F.2d 1542
(11th Cir.1986), rev'd on other grounds, 487 U.S. 223, 108 S.Ct.
2354, 101 L.Ed.2d 206 (1988) (assuming that former employees have
standing under Title VII to challenge discriminatory practices
with regard to payments from employee pension plan).
discrimination against an "otherwise qualified handicapped
individual" in any federally funded program. 29 U.S.C. § 794.
Analysis of the cases construing this phrase provides insight into
logic behind Congress' use of the nearly identical "qualified
individual with a disability."
The Supreme Court has held that "[a]n otherwise qualified
person [under § 504] is one who is able to meet all of a program's
requirements in spite of his handicap." Southeastern Community
College v. Davis, 442 U.S. 397, 406, 99 S.Ct. 2361, 2367, 60
L.Ed.2d 980 (1979). The Court captured the essence of this concept
when it wrote:
Section 504 by its terms does not compel educational
institutions to disregard the disabilities of handicapped
individuals or to make substantial modifications in their
programs to allow disabled persons to participate. Instead,
it requires only that an "otherwise qualified handicapped
individual" not be excluded from participation in a federally
funded program "solely by reason of his handicap," indicating
only that mere possession of a handicap is not a permissible
ground for assuming an inability to function in a particular
context.
Id. at 405, 99 S.Ct. at 2366 (emphasis added).
The court in Modderno v. King, 871 F.Supp. 40 (D.D.C.1994),
aff'd, 82 F.3d 1059 (D.C.Cir.1996), addressed a Rehabilitation Act
claim of discrimination in the provision of health insurance fringe
benefits. The plaintiff, Modderno, was the former spouse of a
Foreign Service officer, and qualified for Foreign Service Benefit
Plan health insurance on that basis. During the period that she
was covered by the Plan, the Plan imposed a lower limit on mental
health benefits,6 as compared to the limit on benefits for physical
6
The Plan was changed to include a $75,000 lifetime maximum
for mental health benefits.
ailments. Modderno, 82 F.3d at 1060. Although the court did not
find that this limit amounted to discrimination in violation of §
504, it nonetheless implicitly recognized that a plan participant
could assert a claim of discrimination in the provision of fringe
benefits. The Modderno district court wrote that,
To establish a prima facie case under § 504, a person must be
handicapped under the Act, otherwise qualified to receive or
participate in the federally supported benefit or program, and
be excluded from the benefit solely by reason of her or his
handicap.
Modderno, 871 F.Supp. at 42 (citing Pesterfield v. Tennessee Valley
Authority, 941 F.2d 437, 441 (6th Cir.1991) (emphasis added)).7
Finally, my position that retirees and other former employees
are protected under the ADA is supported by a common sense reading
of the statute. As noted above, § 12111(8) provides that a
"qualified individual with a disability" means "an individual with
a disability who ... can perform the essential functions of the
employment position...." A retired or former employee, like
Bourgeois, has already performed all of the functions expected of
him with respect to the job he occupied before retirement. Under
the company's plan, the only additional "functions" expected of
Bourgeois, and other retired or former employees, are to make the
7
The Eighth Circuit, in Beauford v. Father Flanagan's Boys'
Home, 831 F.2d 768 (8th Cir.1987), employed a rationale very
similar to that of the majority in this case. The opinion makes
no reference to the overwhelming Title VII case law discussed
above. I respectfully submit that Beauford, like the majority
opinion in this case, ignored not only that overwhelming case
law, which constitutes the background against which Congress
legislated, but also ignored the obvious common sense
construction of the statute in light of its purpose and
legislative history. See Price Waterhouse v. Hopkins, 490 U.S.
228, 241, 109 S.Ct. 1775, 1786, 104 L.Ed.2d 268 (1989) ("We need
not leave our common sense at the doorstep when we interpret a
statute.").
appropriate election, pay the premiums, etc. Fringe benefits, such
as the one at issue here, are all part of the overall compensation
package provided for employees as consideration for their service
during their active years with the company. Post-employment
benefits are like deferred compensation, and are expected to be
enjoyed during the post-employment years. The common sense of the
concept, "qualified individual with a disability," is that there
should be no discrimination because of stereotypes or stigmas.
Differences in treatment are legitimate when based on the ability
of a person to perform the functions expected in the position. In
other words, the protections of the Act accrue to disabled persons
who can perform the functions expected to be performed by persons
without disability in the same position. As the Supreme Court put
it in Southeastern Community College v. Davis: "Mere possession of
a handicap is not a permissible ground for assuming an inability to
function in a particular context." 442 U.S. at 405, 99 S.Ct. at
2366 (emphasis added). Applying that common sense in the instant
context, it is obvious that retirees and other former employees,
who because of their prior employment are entitled to participate
in post-employment fringe benefit plans, are not expected to
perform the functions of the jobs they previously held before
retirement. Rather, they are expected to meet whatever criteria
are mandated by the fringe benefit plan for the accrual and
continuation of coverage, including, for example, any required
minimum years of employment, honorable discharge, and the payment
of premiums.
In summary, I respectfully submit that the majority sees
"plain meaning" when there is none. The majority ignores the
common sense reading of the statute and the evident congressional
purpose as revealed in the structure of the statute, its
legislative history, and the overwhelming case law which provided
the background against which Congress legislated.8 Because I
cannot agree with the majority's conclusions, I respectfully
dissent.
8
I have found very few ADA cases squarely addressing the
issue before us. A district court in the Northern District of
Illinois rejected as unpersuasive and without case law support an
argument that the employment provisions of the ADA do not apply
to former employees. Northen v. City of Chicago, 841 F.Supp.
234, 236 (N.D.Ill.1993). However, Parker v. Metropolitan Life,
Ins. Co., 875 F.Supp. 1321 (W.D.Tenn.1995), appeal docketed, No.
95-5269 (6th Cir.1995), followed Beauford v. Father Flanagan's
Boys' Home, 831 F.2d 768 (8th Cir.1987), and held that a former
employee was not a qualified individual with a disability, and
thus could not make an ADA claim under the employer's disability
plan. The Parker court based this holding on its conclusion that
the employee had become totally disabled and was no longer able
to perform the essential functions of the job she had previously
held. In my judgment, Parker, like Beauford, is flawed. It
failed to address the overwhelming Title VII case law which
provided the background against which Congress enacted the ADA,
and failed to address the common sense construction of the Act in
light of its purpose and legislative history.