Opposition Brief — Parker v. Metropolitan Life Insurance

2

a

No. 97-747

In The

Supreme Court of the United States

October Term, 1997

+

OUIDA SUE PARKER,

Petitioner,

METROPOLITAN LIFE INSURANCE COMPANY,

SCHERING-PLOUGH CORPORATION and SCHERING-

PLOUGH HEALTH CARE PRODUCTS, INC.,

Respondents.

*

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

=

BRIEF OF RESPONDENTS SCHERING-PLOUGH

CORPORATION AND SCHERING-PLOUGH HEALTH

CARE PRODUCTS, INC. IN OPPOSITION TO

THE PETITION FOR A WRIT OF CERTIORARI

7

FREDERICK J. Lewis

Counsel of Record

NicoLte Marre WALTHOUR

McKnicut Hupson Lewis/

Forp & Harrison, LLP

6750 Poplar Avenue

Memphis, Tennessee 38138

901/756-1550

Attorneys for Respondents Schering-

Plough Corporation and Schering-

Plough Health Care Products, Inc.

COCKLE LAW BRIEF PRINTING CO., (890) 225-6964

OR CALL COLLECT (402) 342-2831

COUNTERSTATEMENT OF QUESTIONS PRESENTED

1.

Does a totally disabled individual have standing to

sue under Title I of the Americans with Disabilities

Act, which is intended to protect only “qualified indi-

viduals with a disability” who are able to “perform

the essential functions of a job”?

Does Title III of the Americans with Disabilities Act,

which governs equal access to places of public accom-

modations for the disabled, regulate the content of

the goods and services provided by places of public

accommodations and thereby require that employers

who offer their employees long term disability bene-

fits provide the same benefits for physical and mental

disorders?

li

PARTIES TO THE PROCEEDING

AND RULE 29.6 LISTING

The parties to the proceeding are listed in the Petition

at ii. Respondent Schering-Plough Health Care Products,

Inc. is a wholly-owned subsidiary of Schering-Plough

Corporation. There are no other parent company or non-

wholly owned subsidiaries of Respondents Schering-

Plough Corporation and Schering-Plough Health Care

Products, Inc.

ili

TABLE OF CONTENTS

Page

COUNTERSTATEMENT OF QUESTIONS PRF’ éN-

i Or Fee rE ee PCO ER aE Tn eer Oy EEOC ere ee i

PARTIES TO THE PROCEEDING AND RULE 29.6

RRR sie 50 ha ue nv ocala ey 2 Wah ROS WCF KM Ge DKS ii

FF es Bet fe ys Sen ere emer iii

pe we ee yd 8 2 eS a ee pera ee re Vv

CITATIONS TO OPINIONS BELOW.........2...25, 1

EERIE 5505 oie b bs) wie eS pew hen deeus bees o% 1

RPRR OPES: GOW BREED GAARDES occ sent cashdewctsves 2

REASONS FOR DENYING THE WRIT.......... 5

I. THE SIXTH CIRCUIT CORRECTLY DETER-

MINED THAT PETITIONER COULD NOT

MAINTAIN AN ACTION UNDER TITLE!.. 5

A. Petitioner Is Not a Qualified Individual

rr ee eee 5

B. Even If Petitioner Had Standing Under

Title I of the ADA, the Terms of the Plan

Do Not Violate the ADA by Providing

Disparate Benefit Levels ............... 12

C. Petitioner’s Assertion That Regulations

Promulgated by the Equal Employment

Opportunity Commission Interpreting

Title I of the ADA Conflict With the

Sixth Circuit Panel’s Decision Does Not

Provide a Proper Ground for Review by

6 ek oe kp NR Fes br ou de esay ve 17

iv

TABLE OF CONTENTS - Continued

Page

II. PETITIONER EXAGGERATES THE SIGNIFI-

CANCE OF ANY CONFLICT BETWEEN

THE FIRST AND SIXTH CIRCUITS ON THE

Seyret) eee errr repre ore 19

Ill. PETITIONER’S CLAIM THAT THE JUSTICE

DEPARTMENT’S INTERPRETATION OF

TITLE I CONFLICTS WITH THE SIXTH CIR-

CUIT’S EN BANC DECISION DOES NOT

WARRANT REVIEW BY THIS COURT ...... 21

IV. THE SIXTH CIRCUIT’S HOLDING THAT

SIFLE fi DOES NOt APPLY FO

BOAPLAJYERS Fo CAM! wee eke ei varices 24

CONCLUSION ...... reneged Een LeRRE LS Oks oak OER 26

Vv

TABLE OF AUTHORITIES

Page

FEDERAL CASES:

Alexander v. Choate, 469 U.S. 287 (1985).............. 14

Beauford v. Father Flanagan’s Boys’ Home, 831 F.2d

768 (8th Cir. 1987), cert. denied, 485 U.S. 938

ty) Ree Arr ere rer ye rh Ne ones ae

Board of Governors v. Dimension Financial Corp., 474

RE Ok CODON) 5s cccdcs ooeanasones tear ses 11, 22

Carparts Distribution Center, Inc. v. Automotive

Wholesalers Assoc., 37 F.3d 12 (1st Cir. 1994)....... 19

Chevron, U.S.A. v. Natural Resources Defense Coun-

CH GOT UD. BOG ano ced tach eeew eas seuss 22

Dole v. United Steel Workers, 494 U.S. 26 (1990)...... 22

EEOC v. CNA Insurance Cos., 96 F.3d 1039 (7th Cir.

i fd Fe ES eee Mea ope sr rr re meres fey 9, 14, 16

Gonzales v. Garner Food Servs., 89 F.3d 1523 (11th

Cir. 1996), cert. denied, 117 S. Ct. 1822 (1997)..... 6, 9

Krauel v. lowa Methodist Medical Center, 95 F.3d 674

NK rcs go oi oa eek Soe eA kee whe 14

Presley v. Etowah County Comm'n, 502 U.S. 491

CEE sks Phe cp eas one RENE ks Sean een en cease 24

Public Employees Retirement System of Ohio v. Betts,

ME AIG; 250 LIS) ok iv cc ikaes vps st ndey Getecsecenns 19

Reves v. Ernst & Young, 507 U.S. 170, 113 S. Ct.

RAGS CUO OS) io voi ci's seve ius cava vs 5s creeences tp ee 11

Robinson v. Shell Oil, 117 S. Ct. 843 (1997)..... 9, 10, 11

vi

TABLE OF AUTHORITIES - Continued

Page

Stoutenborough v. National Football League, 59 F.3d

580 (6th Cir.), cert. denied, 116 S. Ct. 674 (1995) .... 21

Traynor v. Turnage, 485 U.S. 535 (1988) ........... 14, 15

Tyndall v. National Educ. Ctrs., 31 F.3d 209 (4th Cir.

PN iain 'k ood eas NE ERR eee |

State CASES:

Smith v. Tennessee Furniture Industries, Inc., 369

ae Fee CEL. TEE % 3 ong nd rae eh ann ee kee 6

FEDERAL STATUTES:

WOOP 6 Ub teh es Ga 8,11 |

Ween Gee ne 18 |

Cub 8 UWA... 18 |

Weer ee oo ae 7, 8 |

Or TE. © BON ona os he i eR en a 2 |

42 U.S.C. § 300gg-5(1)-(2)...... 20.005. Sn swe oe 17

OE SER 6 ee OF BO os boise recess dassn tere 6

“ine ten os ee 6

ORE i eo ee 12

WOH 8 A ess eee a 5,11

er BN a ea ee 5, 8

OR ea ee a 25

SUL 4 OAM 14

————

Vii

TABLE OF AUTHORITIES — Continued

Page

Oe A hies te RR MAET D6 ik va 6 been tek eee ed chal anaes 21

Se eae a hh et howe ksi hind sua see ecuweny 23

Oe Bk ee RARE CIDP aks och bichusceenetebentas 23

Rae PO TO NE a ha as cen ss osddb1 0356s ee eee ee

DOS MMC Ai Kn wean came d maken ian eae 6, 14, 24

OTHER AUTHORITIES:

Department of Justice Technical Assistance Man-

te SOU oso Fide Ra ween coke’ Kho LA allt 22

EEOC Compliance Manual (BNA) at 70:1052-53 ..... 13

cote no

CITATIONS TO OPINIONS BELOW

For the Court’s convenience, citations to the en banc

and panel opinion in this opposition brief will be to the

page numbers of the opinions attached to the Petition as

Appendix A.

INTRODUCTION

Petitioner Ouida Sue Parker petitions this Court to

rewrite the Americans with Disabilities Act (the “ADA”)

by expanding its coverage to those who cannot perform

the essential functions of any job, even with reasonable

accommodation. The Petitioner further seeks to have this

Court mandate that employers and insurers provide

equal benefits for mental and physical disabilities, in

spite of the fact that the ADA plainly contains no such

requirement and Congress never intended such a result.

Finally, Petitioner would have this Court eliminate any

distinction between Title I and Title ITI of the ADA by

applying the provisions of Title III of the ADA to

employers in contravention of the clear Congressional

intent.

The Petition presents no issues that warrant immedi-

ate review by this Court. The decision of the Sixth Circuit

properly rejected Petitioner’s invitation to expand the

scope of Title I and Title III of the ADA beyond the plain

meaning of the statute and the clear intent of Congress.

Moreover, the Petition does not advance a significant

conflict between decisions of circuit courts. Finally, as the

Sixth Circuit noted in its decision en banc, Congress has

recently passed the Mental Health Parity Act, 42 U.S.C.

—_—

§ 300gg-5, which suggests that Congress did not regard the

ADA as a mechanism to regulate the content of insurance

policies or to mandate parity of benefits in such policies.

Health care reform remains an issue of national concern.

The Court should not grant certiorari to resolve a policy

issue with implications for employers and insurance com-

panies that are uncertain and potentially far-reaching.

¢

STATEMENT OF THE CASE

Petitioner is totally disabled by a major depression

and is unable to perform the essential functions of any

job. By virtue of her employment with Respondent Scher-

ing-Plough Health Care Products, Inc., Petitioner was a

participant in a long-term disability plan (the “Plan”) that

was written and issued by Respondent Metropolitan Life

Insurance Company (“MetLife”) to her employer. The

Plan provided twenty-four months of long-term disability

benefits for mental or nervous disorders. For other disor-

ders, the Plan provided continuous disability payments

until age 65. App. at 75.

In accordance with the terms of the employer-spon-

sored plan, Petitioner received long-term disability bene-

fits for twenty-four months. After the benefits terminated

in accordance with the Plan, Petitioner brought suit

against the Schering-Plough Respondents and Respon-

dent MetLife. Petitioner seeks this Court’s review of her

claim that the terms of the Plan violate the Americans

with Disabilities Act (the “ADA”) because of the dis-

parity in the benefits provided for physical and mental

conditions.

The district court held that Petitioner lacked standing

to maintain claims against the Respondents under Title I

of the ADA because she was not a “qualified individual

with a disability” who could perform the essential func-

tions of her job. App. at 80-81. The district court also

dismissed Petitioner’s Title III claims against the Scher-

ing-Plough Respondents on the ground that Title III does

not govern employment practices. In doing so, the district

court referred to the legislative history of Title III] which

states that “Title III is not intended to govern any terms

or conditions of employment by providers of public

accommodations or potential places of employment;

employment practices are governed by Title I of this

legislation.” App. at 84. As to both the Schering-Plough

Respondents and MetLife, the district court also held that

Title III of the ADA prohibits discrimination on the basis

of disability only with respect to an individual’s ability to

make physical use of goods, services, facilities, privileges,

advantages or accommodations of places of public

accommodation. App. at 83-84.

Petitioner appealed to the Sixth Circuit. On October

25, 1996, a panel of the Sixth Circuit affirmed the district

court’s ruling that Petitioner lacked standing to maintain

an action under Title I of the ADA against the Respon-

dents because she was not a “qualified individual with a

disability.” App. at 51. The Sixth Circuit panel, however,

reversed the district court’s ruling with regard to the Title

III issue. App. at 69-70.

Respondents Schering-Plough and MetLife filed peti-

tions for rehearing en banc solely with regard to the

panel’s rulings on Title III. Petitioner opposed the peti-

tions for rehearing but did not request rehearing on any

other issue. App. at 7. Thus, Petitioner’s claims under

Title I of the ADA were not before the en banc court and

accordingly, the en banc court did not address the Title I

issues. App. at 5.

The Sixth Circuit en banc ruled that a long-term dis-

ability plan obtained through an employer is not a public

accommodation. The en banc court found that the plain

words of the statute limit Title III’s reach to the provision

of unequal or separate benefits by places of public accom-

modation. Because the benefits challenged by Petitioner

were provided to her by virtue of her employment and

not at a place of public accommodation, the court rea-

soned that the benefit plan she received from her

employer was not a good or service offered by a place of

public accommodation. App. at 13-16. The en banc court

further ruled that Title III does not govern the content of

a long-term disability plan offered by an employer

because Title III regulates availability of the goods and

services offered by a place of public accommodation and

does not govern content. App. at 13. Moreover, the en

banc court ruled that Title [IV does not address the con-

tents of a long-term disability plan offered by an

employer because the employer is not a place of public

accommodation. App. at 15-17. Finally, the en banc court

ruled that Title III does not govern the terms and condi-

tions of the employment relationship. App. at 20-22.

Petitioner filed for a writ of certiorari.

¢

REASONS FOR DENYING THE WRIT

I. THE SIXTH CIRCUIT CORRECTLY DETERMINED

THAT PETITIONER COULD NOT MAINTAIN AN

ACTION UNDER TITLE I.

A. Petitioner Is Not a Qualified Individual With a

Disability.

The Sixth Circuit panel decision properly found that

Petitioner lacked standing to pursue claims against the

Schering-Plough Respondents under Title I because she is

not a “qualified individual with a disability.”! Title I of

the ADA prohibits employment discrimination against a

“qualified individual with a disability” because of the

disability. 42 U.S.C. § 12112(a). A “qualified individual

with a disability” is defined as “an individual with a

disability who, with or without reasonable accommoda-

tion, can perform the essential functions of the employ-

ment position that such individual holds or desires.” 42

U.S.C. § 12111(8). Only qualified individuals can main-

tain a claim under Title I.

The panel’s decision is also supported by the legisla-

tive history and announced Congressional purpose of the

ADA. Congress included the phrase “essential functions”

in the definition of a qualified individual with a disability —

to “ensure that employers can continue to require that all

applicants and employees, including those with disabil-

ities, are able to perform the essential, i.e., the non-margi-

nal functions of the job. ...” H.R. Rep. No. 485, part 2,

10ist Cong., 2d Sess. 55 (1990). Significantly, Petitioner

1 As noted above, the Title I issue was not before the en banc

court because no party sought rehearing on that issue.

ee

cites no legislative history of the ADA that even hints

that Congress intended Title I to protect any persons

other than qualified individuals with disabilities as that

term is defined in the statute. In fact, the legislative

history of the ADA clearly and uniformly states that

Congress intended Title I to prohibit discrimination >

against qualified individuals with disabilities.2 See S. Rep.

No. 116, 101st Cong., Ist Sess. 25-29 (1989); H.R. Rep. No.

485, part 2, 101st Cong., 2d Sess. 54-60; H.R. Rep. No. 485,

part 3, 101st Cong., 2d Sess. 31-39 (1990); see also Gonzales

v. Garner Food Servs., 89 F.3d 1523, 1527 (11th Cir. 1996)

(review of ADA and legislative history indicates that

Congress intended to limit Title I protections to persons

who could perform the essential functions of a job) , cert.

denied, 117 S. Ct. 1822 (1997). Thus, as the Sixth Circuit

panel court recognized, the legislative purpose of Title I

2 This purpose differentiates the ADA from other federal

and state legislation that is designed to provide benefits to

individuals who cannot work. For example, in order to be

entitled to receive benefits under the Social Security Act, 42

U.S.C. § 310 et seq., a claimant must certify not only that she

suffers from a mental or physical impairment that renders her

unable to perform her previous work, but also that the

impairment prevents her from engaging in any other kind of

substantial gainful work. See 42 U.S.C. § 423(D)(2)(A). Similarly,

workers’ compensation statutes are designed in large part to

protect workers who are unable to perform any work, whether

temporarily or permanently. See, e.g., Smith v. Tennessee

Furniture Industries, Inc., 369 S.W.2d 721 (Tenn. 1963). Unlike the

Social Security Act and workers’ compensation laws, Title I of

the ADA exists solely to ensure that people with a disability

who can work are given the opportunity to do so. Consequently,

it violates neither the language nor the spirit of the ADA to hold

that Petitioner is not entitled to its protection.

NN eeeeEeEEE——eeeEeEee

of the ADA was to ensure that the disabled could obtain

and keep employment. App. at 49. While the ADA gener-

ally seeks to protect individuals with disabilities, Con-

gress deliberately restricted that protection in the

workplace context to the disabled who are able to work,

with an accommodation, if necessary. Tyndall v. National

Educ. Ctrs., 31 F.3d 209, 212 (4th Cir. 1994).

Thus, the panel’s ruling that Petitioner, who by her

own admission is totally disabled from working at any

job by severe depression, is not a “qualified individual

with a disability,” is consistent with the plain meaning of

the statute and consonant with Congress’s clear intent to

confine the protection of Title I to employees who are

able to perform the essential functions of their job.

Contrary to Petitioner’s argument, the panel’s

reliance on Beauford v. Father Flanagan’s Boys’ Home, 831

F.2d 768 (8th Cir. 1987), cert. denied, 485 U.S. 938 (1988),

was not misplaced. In Beauford, the Eighth Circuit found

that an employee who was totally disabled and could no

longer perform the essential functions of her job was not

entitled to maintain a claim for fringe benefits under

Section 504 of the Rehabilitation Act of 1973. The Eighth

Circuit recognized that the Rehabilitation Act reached

discrimination in fringe benefits but determined that the

plaintiff was not entitled to the protection of the Reha-

bilitation Act because the Act only extended its coverage

to “otherwise qualified handicapped individuals.” 831

F.2d at 770 (quoting 29 U.S.C. § 794) (emphasis omitted).

Because the plaintiff in Beauford admitted that she was

wholly unable to meet the defendant’s job requirements

“in spite of her handicap,” the Court denied her claim for

fringe benefits. Id. at 771. In so holding, the Eighth Cir-

cuit stated that “though it may seem undesirable to dis-

criminate against a handicapped employee who is no

longer able to do his or her job, this sort of discrimination

is simply not within the protection of section 504.” Id.

The Sixth Circuit panel properly relied on the com-

pelling reasoning of the Beauford court. Like the Beauford

plaintiff, Petitioner is totally disabled and is not a “quali-

fied individual with a disability.” Petitioner’s argument

that “Beauford differs from this action because the Reha-

bilitation Act does not specifically address discrimination

in contractual relationships” is unavailing. Pet. at 22.

Contrary to Petitioner’s assertion, both statutes are simi-

lar in their language and in their proscription of discrimi-

nation based on disability even with respect to fringe

benefits.>

In any event, the Sixth Circuit panel did not rely

solely on Beauford to determine that Petitioner lacked

standing under Title I of the ADA. The court also found

support in decisions of the Seventh and Eleventh Circuits,

which have also concluded that totally disabled individ-

uals who cannot perform the essential functions of their

jobs do not have standing to challenge their employer-

provided benefit plans under Title I of the ADA. EEOC v.

3 Both the ADA and the Rehabilitation Act require that in

order to be entitled to their protection, an individual must

otherwise be qualified to perform the essential functions of her

job. Compare 29 U.S.C. § 794 (discrimination prohibited only

against “otherwise qualified handicapped individuals”) with 42

U.S.C. § 12112(a) and 29 C.F.R. § 1630.2(m) (discrimination

prohibited only against a “qualified individual with a

disability”).

CNA Insurance Cos., 96 F.3d 1039, 1043-44 (7th Cir. 1997);

Gonzales v. Garner Food Servs., 89 F.3d 1523 (11th Cir.

1996), cert. denied, 117 S. Ct. 1822 (1997).

To circumvent the import of the statutory language

and legislative history of Title I, Plaintiff has advanced

one tortuous construction of the statute after another. For

example, despite the fact that nothing in the statute con-

fers standing to the totally disabled, Petitioner attempted

to persuade the Sixth Circuit panel that it should over-

look her inability to work and find that she was entitled

to protection under Title I to preserve her “employment

position” as a “benefit recipient.” The panel court refused

to create an entirely new category of employees entitled

“benefit recipients” and found instead that Petitioner’s

construction of the statute conflicted with the plain mean-

ing of its words. App. at 51. The Seventh and Eleventh

Circuits have also rejected this construction. CNA Ins.

Cos., 96 F.3d at 1043 (“an employment position is a job”);

Garner Food Servs., 89 F.3d at 1530. This agreement among

circuit courts that Title I applies only to those who can

fulfill the essential functions of the job at issue is yet

another reason for the Court to refrain expending its

limited resources by reviewing Petitioner’s Title I claim.

Changing tactics, Petitioner now urges this Court to

apply the reasoning of its recent decision in Robinson v.

Shell Oil, 117 S. Ct. 843 (1997), to manufacture standing

for those who are not qualified individuals with disabil-

ities under Title I. Petitioner resorts to the argument that

“the Sixth Circuit should have examined the issue of

Petitioner’s right to bring suit under Title I in the context

of the ADA’s broader meaning and purpose of the statute

as a whole.” Pet. at 24. Petitioner supports this expansion

10

of the scope of Title I by citing the preamble to the statute

while disregarding the specific provisions enacted by

Congress to address discrimination against the disabled.

Pet. at 24. According to Petitioner, the Court must review

this case to “extend to the ADA the same principles of

statutory construction to secure civil rights within the full

intent of Congress which were applied in Robinson.” Pet.

at 23. Petitioner is wrong. Nothing in the ADA or recent

circuit court decisions supports intervention by this

Court to expand the scope of Title I beyond the rights that

Congress plainly intended to secure, and the reasoning of

the Robinson decision is similarly unpersuasive on this

issue.

In Robinson, the Court determined that former

employees could pursue claims against their employers

for discrimination under the anti-retaliation provision of

Title VII. 117 S. Ct. at 849. The Court found that the term

“employees” as used in Title VII was ambiguous and that

the “broader context” of Title VII implied that the anti-

retaliation provisions of the statute should be extended to

include former employees. Id. at 848.

The Court’s decision in Robinson does not advance

Petitioner’s contention that a totally disabled individual

has standing to maintain an action under Title I of the

ADA. The decision below was not based on whether

Petitioner was a current or former employee, and consid-

eration of her employment status was not necessary to

the determination that she was not entitled to the protec-

tions of Title I. Further, unlike Title VII, the application of

the ADA’s protection is not determined merely by refer-

ence to the word “employee.” In the ADA the meaning of

“employee” is not ambiguous because Congress imposed

11

specific requirements that must be met by those seeking

protection under Title I of the statute. The ADA estab-

lishes that an employee’s current* ability to perform the

essential functions of the job as defined by the employer

is a threshold requirement for invoking ADA protection.

42 U.S.C. § 12111(8). Title VII contains no such require-

ment. Thus, the Court’s analysis in Robinson has no rele-

vant application to the Title I issue in this action.

Petitioner implores this Court to apply the “broader

context” of the statute at the expense of its unambiguous

language and clear Congressional intent. Petitioner’s

shifting constructions of Title I are best disposed of by

applying the elemental rule of statutory construction: “In

determining the scope of a statute, we look first to its

language. If the statutory language is unam-

biguous . . . that language must ordinarily be regarded as

‘conclusive.’ ” Reves v. Ernst & Young, 507 U.S. 170, 113 S.

Ct. 1163, 1169 (1993) (citations omitted); see also Board of

Governors v. Dimension Financial Corp., 474 U.S. 361, 373

(1986) (the “purpose” of a statute is determined first by

* Petitioner’s attempt to analogize the ADA to Title VII by

claiming that the ADA contains no “temporal qualifier” in its

definition of “employee” is simply wrong. The ADA specifically

extends the protection of Title I to qualified individuals with a

disability “who, with or without reasonable accommodation,

can perform the essential function of the employment position

that such individual holds or desires.” 42 U.S.C. § 12111(8)

(emphasis added); see also 29 C.F.R. § 1630.2(m). The actual —

ability to come to work and perform the essential functions of

the job are paramount to the determination of whether an

employee is “qualified” under the ADA. Tyndall v. National

Educ. Ctrs., 31 F.3d 209, 213 (4th Cir. 1994).

12

examining its plain language). Despite the broad pro-

nouncement of the statute’s preamble (42 U.S.C. § 12101),

an examination of the statute’s language and the legisla-

tive history demonstrates that Congress did not extend

protection to all disabled employees. No doubt as a result

of the inevitable compromise of legislators with disparate

agendas and constituencies, the protection afforded by

Title I of the ADA was expressly limited to individuals

who are able to work, with or without a reasonable

accommodation. In sum, when Congress enacted the

ADA it simply did not provide the protection that Peti-

tioner seeks.

It is Petitioner’s construction of Title I that is demon-

strably at odds with the language and Congressional

intent expressed in the statute. The Sixth Circuit panel’s

thoughtful analysis of the issue was eminently correct

and presents no basis for review by this Court. Petitioner

is not a qualified individual with a disability and lacks

standing to maintain her action under Title I. It is not

incumbent upon this Court to rewrite the ADA.

B. Even If Petitioner Had Standing Under Title I

of the ADA, the Terms of the Plan Do Not

Violate the ADA by Providing Disparate Bene-

fit Levels.

Petitioner argues that the terms of the Plan, which

provide for long-term disability benefits until age 65 for

physical disabilities but which limit such benefits for

mental disabilities to two years, violate the ADA. Even if

Petitioner had standing under Title I of the ADA, how-

ever, the Sixth Circuit’s decision is plainly correct because

ian aatcriiaeiaiiiaiiaiaiiiiiiiaiiiiiiieal

13

providing disparate levels of benefits to different classes

of disabled individuals does not violate the ADA.

Congress enacted the ADA to prevent employers

from completely denying coverage based on an individ-

ual’s disability. The legislative purpose and history of the

ADA confirm that the ADA ensures only that disabled

employees are given the same access to the benefits

offered by an employer as those offered to able-bodied

employees. Thus, distinctions in the level of benetits pro-

vided for different conditions do not constitute discrimi-

nation if such distinctions are applied equally to all

employees.* Congress addressed precisely this issue with

regard to an employer who offers lesser benefits for men-

tal as opposed to physical impairments:

[While it is permissible for an employer to offer

insurance policies that limit coverage for certain

procedures or treatments, e.g., only a specified

amount per year for mental health coverage, a

person who has a mental health condition may

not be denied coverage for other conditions

such as for a broken leg or for heart surgery

because of the existence of the mental health

condition. . . . All people with disabilities must

° The Equal Employment Opportunity Commission’s own

interpretive guidance of the ADA supports the Congressional

intent to ensure that the disabled are provided equal access to

benefits by their employers. See EEOC Compliance Manual (BNA)

at 70:1052-53 (noting that distinctions between mental and

physical conditions in the benefits provided by employers

“constrain individuals both with and without disabilities” and

“do not intentionally discriminate on the basis of disability.”) .

14

have equal access to the health insurance cover-

age that is provided by the employer to all

employees.

S. Rep. No. 116, 101st Cong., 1st Sess., at 29; see

also H.R. Rep. No. 485, part 3, 101st Cong., 2d

Sess., at 71.

The Supreme Court has held in Rehabilitation Act

cases® that a disparity in the benefits offered for mental

health conditions and physical conditions does not create

a cognizable claim of discrimination against the disabled.

Traynor v. Turnage, 485 U.S. 535 (1988); Alexander v. Choate,

469 U.S. 287 (1985). The Sixth Circuit in this case, and the

Seventh Circuit and the Eighth Circuit have properly

extended the same rationale used by this Court in Traynor

and Alexander in their determination that employers do

not violate the ADA by offering unequal benefits for

mental and physical conditions. See CNA Ins. Cos., 96 F.3d

at 1044 (7th Cir. 1996); Krauel v. lowa Methodist Medical

Center, 95 F.3d 674 (8th Cir. 1996) (holding that employee

benefit plan that did not provide coverage for treatment

of infertility did not violate the ADA because the exclu-

sion of such treatment applied to all employees).

In Alexander v. Choate, the Court held that the state of

Tennessee did not violate section 504 of the Rehabilitation

Act by reducing the number of in-patient days for which

Medicaid would reimburse hospitals on behalf of a single

recipient in a fiscal year. 469 U.S. at 309. The Court

6 Cases brought pursuant to the Rehabilitation Act are

instructive as to the ADA. See 42 U.S.C. § 12117(b) (ADA and

Rehabilitation Act to be construed so as not to achieve

inconsistent or conflicting standards).

15

rejected the argument that such a reduction violated sec-

tion 504 of the Rehabilitation Act by affecting the dis-

abled more severely than those without disabilities and

stated that the Rehabilitation Act “does not... guarantee

the handicapped equal results from the provision of state

Medicaid.” Id. at 304. Instead, the Court noted, “section

504 seeks to assure even-handed treatment and the

opportunity for handicapped individuals to participate in

and benefit from programs receiving federal assistance.”

Id. at 303. In Traynor v. Turnage, this Court subsequently

held that a regulation permitting veterans to receive edu-

cation assistance benefits beyond a ten-year period only

if the mental or physical disability which prevented the

veteran from completing his education was “not the

result of [his] own willful misconduct” did not violate the

Rehabilitation Act. The Court in Traynor specifically

stated that the “central purpose of § 504. . . is to assure

that handicapped individuals receive ‘even-handed treat-

ment’ in relation to non-handicapped individuals.” Id. at

548 (citations omitted). The Court further stated that

“[t]here is nothing in the Rehabilitation Act that requires

that any benefit extended to one category of handicapped

persons also be extended to all other categories of hand-

icapped persons.” id. at 549.

The legislative goal of the ADA mirrors that of the

Rehabilitation Act. The ADA provides the disabled with

equal access to benefits - not equal results. As a conse-

quence, distinctions in insurance coverage that are

equally applied to all employees do not intentionally

discriminate on the basis of disability. The Sixth, Seventh

and Eighth Circuits agree. These courts have uniformly

ruled that the language and the legislative history of the

16

ADA do not evince an intent on the part of Congress to

mandate parity in the benefits provided for mental and

physical conditions.

Petitioner is not a victim of disability discrimination.

As the Sixth Circuit en banc noted, “[bJecause all

employees at Schering-Plough, whether disabled or not,

received the same access to the long-term disability plan,

neither the defendants nor the plan discriminated

between the disabled and the able bodied.” App. at 23.

Disabled employees were not charged more for the bene-

fits that they received under the Plan and they could

receive benefits under the same terms as employees who

were not disabled.

Congress simply failed in enacting the ADA to man-

date parity in the benefits provided to employees.

Although Petitioner’s situation may be one that evokes

sympathy, Petitioner cannot properly ask this Court to

rewrite the ADA. In EEOC v. CNA the Seventh Circuit

succinctly observed:

Without far stronger language in the ADA sup-

porting this result, we are loath to read into it a

rule that has been the subject of vigorous, some-

times contentious national debate for the last

several years. Few, if any, mental health advo-

cates have thought that the result they would

like to see has been there all along in the ADA.

96 F.3d at 1044.

As the Sixth Circuit en banc noted, the recent passage

of the Mental Health Parity Act, “suggests Congress

believed that the ADA neither governs the content of

insurance policies nor requires parity between physical

ee ee ae re

17

and mental illnesses. ... ” App. at 29. In passing the

Mental Health Parity Act, which amends the Health

Insurance Portability Act, Congress eliminated some of

the distinctions between benefits offered for mental and

physical conditions. For example, when a group health

insurance plan does not have an annual or lifetime limit

on the benefits offered for physical conditions, it may not

contain such a limitation for mental health benefits.” 42

U.S.C. § 300gg-5(1)-(2). Logically, Congress would not

have enacted the Mental Health Parity Act if the precise

relief that Petitioner seeks, i.c., required parity in the

benefits for mental and physical illnesses in employer-

provided insurance, had been provided under the ADA.

Certiorari should not be granted to unravel an issue that

remains the subject of Congressional consideration.

C. Petitioner’s Assertion That Regulations Pro-

mulgated by the Equal Employment Oppor-

tunity Commission Interpreting Title I of the

ADA Conflict With the Sixth Circuit Panel’s

Decision Does Not Provide a Proper Ground

for Review by This Court.

Petitioner argues that the Sixth Circuit panel failed to

accord the proper deference to regulations promulgated

by the Equal Employment Opportunity Commission

(“EEOC”) that interpret Title I of the ADA. The Sixth

Circuit panel properly relied on the plain meaning of the

statute rather than Petitioner’s erroneous interpretation

of the EEOC’s regulations.

7 The Mental Health Parity Act does not have any effect on

long term disability plans such as the one Petitioner challenges.

18

According to Petitioner’s expansive interpretation,

the EEOC’s regulations provide that “an individual's pre-

sent ability to perform the essential functions of his or

her job is irrelevant” to the determination of whether the

individual has standing to pursue an action under Title I

of the ADA. Pet. at 27. A review of the actual language of

the provisions cited by Petitioner reveals that Petitioner’s

interpretation is a mere chimera that is entitled no defer-

ence by this Court. For example, 29 C.F.R. § 1630.4(f)

merely provides that covered entities may not discrimi-

nate against a qualified individual with a disability with

regard to the “fringe benefits available by virtue of

employment, whether or not administered by the covered

entity,” while 29 C.F.R. § 1630.13(b)® prohibits employers

from requiring medical examinations of employees or

making inquiries with regard to the nature or severity of

a disability. The cited regulations clearly do not support

the expansion of those who may bring actions under Title

I to persons who are unable to work.

Thus, the alleged conflict between the Sixth Circuit's

decision and the EEOC’s regulations does not warrant

review. The regulations cited by Petitioner are not truly in

conflict with the Sixth Circuit’s interpretation of Title I or

with the express language of the statute. Even if the cited

EEOC regulations had actually supported Petitioner’s

8 29 C.F.R. § 1630.13(b) states:

Examination or inquiry of employees. Except as

permitted by § 1630.14, it is unlawful for a covered

entity to require a medical examination of an

employee or to make inquiries as to whether an

employee is an individual with a disability or as to

the nature or severity of such disability.

19

argument that her complete inability to work is irrelevant

under Title I, the Sixth Circuit would not owe any defer-

ence to an erroneous interpretation of a Congressional

statute. Public Employees Retirement System of Ohio v. Betts,

492 U.S. 158, 171 (1989) (holding that “no deference is due

to agency interpretations at odds with the plain language

of the statute itself”).

Il. PETITIONER EXAGGERATES THE SIGNIFI-

CANCE OF ANY CONFLICT BETWEEN THE

FIRST AND SIXTH CIRCUITS ON THE TITLE III

ISSUE.

Petitioner relies heavily on a purported conflict

between the Sixth Circuit and a decision of the First

Circuit. Pet. at 9-15. Petitioner overstates the significance

of the conflict. Moreover, the analysis of the First Circuit

is flawed and should be disregarded.

In Carparts Distribution Center, Inc. v. Automotive

Wholesaler’s Assoc., 37 F.3d 12 (1st Cir. 1994), the First

Circuit determined that the meaning of the term place of

“public accommodation” in Title III is not limited to

physical structures. 37 F.3d at 19. Citing technological

advances in the means of conducting commercial activity,

the First Circuit found that Title III applies even when a

disabled person merely makes a request over the tele-

phone. Id. The First Circuit did not even reach the precise

issue addressed by the Sixth Circuit en banc, namely

whether Title III applies to regulate the content of the

products or services offered by places of public accom-

modation. 37 F.3d at 20. Thus, the First Circuit's decision,

which solely addresses the issue of the disabled’s access

20

to the goods and services of places of public accommoda-

tion is inapposite.

What is really at issue here is whether Title III per-

mits the regulation of the content of the goods and ser-

vices offered by places of public accommodation. As

noted above, the legislative history of the ADA clearly

explains that Congress merely intended to provide equal

access to the goods and services offered by places of

public accommodation. Petitioner has not presented the

Court with a manifest conflict between circuit courts.? As

a consequence, it would be premature for the Court to

expend its resources to settle a variance that may be

resolved by further developments among the circuit

courts and lower courts.

In any event, the First Circuit’s interpretation of the

meaning of Title III is flawed and inconsistent with the

plain meaning of the statute. The Sixth Circuit correctly

concluded that Petitioner did not have a claim under Title

III because the prohibitions of Title III only apply to

“places of public accommodation.” App. at 17-20. The

9 Petitioner cites several district court cases which she

contends have addressed Title III’s “applicability to

discrimination in the provision and coverage of insurance... .”

Pet. at 14. The existence of these cases, whatever the true import

of their holdings, is not determinative of the propriety of

granting the Petition. The Court expends its resources when

there is a conflict among the circuit courts calling for review.

Supreme Court Rule 10(a). Supreme Court review is not

warranted to correct district court decisions. Instead, the Court

should exercise its discretion and refrain from reviewing this

issue until it is presented with a real conflict among circuit

courts.

21

statute provides a list of physical locations as examples of

places of public accommodation, without any reference to

the content of the services offered by such places. 42

U.S.C. § 12181(7). This interpretation is confirmed by the

legislative history of Title III which clarifies that Con-

gress’s express purpose in enacting Title III was to pro-

vide disabled persons with the same access to the goods

and services offered by places of public accommodation

as persons who are not disabled enjoy. See, e.g., H.R. Rep.

No. 485, 101st Cong., 2d Sess., at 35; S. Rep. No. 116, 101st

Cong., lst Sess., at 58.

The Sixth Circuit also relied on its previous decision

in Stoutenborough v. National Football League, 59 F.3d 580

(6th Cir.), cert. denied, 116 S. Ct. 674 (1995), which found

that Title III plainly applied only to physical places and

that television broadcasts of blacked out football games

do not involve a “place of public accommodation.” 59

F.3d at 583. Thus, relying on the plain meaning of the

statute, its legislative history and Sixth Circuit precedent,

the Court reasoned that the plain meaning of the text of

Title III refers solely to physical places.

Ill. PETITIONER’S CLAIM THAT THE JUSTICE

DEPARTMENT’S INTERPRETATION OF TITLE

III CONFLICTS WITH THE SIXTH CIRCUIT’S EN

BANC DECISION DOES NOT WARRANT

REVIEW BY THIS COURT.

Petitioner argues that selected language from the

Department of Justice Technical Assistance Manual sug-

gests that Title III permits the regulation of the substan-

tive terms of insurance contracts. See Department of Justice

22

Technical Assistance Manual, § IlII-3.11000 reprinted in

Americans with Disabilities Act Manual (BNA) at 90:0917.

According to Petitioner, the Sixth Circuit did not give this

interpretation of Title III the deference due to agency

interpretations’ under Chevron, U.S.A. v. Natural

Resources Defense Council, 467 U.S. 837 (1984).

The fundamental principle in the construction of stat-

utes is that a court must give effect to the plain meaning

of the statute’s words. When the statute’s meaning is

plain and Congress has expressed its intent in unam-

biguous terms, a reviewing court need not defer to an

agency’s contrary interpretation of the statute. Dole v.

United Steel Workers, 494 U.S. 26, 42-43 (1990); Board of

Governors v. Dimension Financial Corp., 474 U.S. 361, 368

(1986). The principle of Chevron deference does not per-

mit an agency to nullify through interpretation the clearly

expressed intent of Congress.

Applying these principles, the Sixth Circuit correctly

determined that the Department of Justice’s interpreta-

tion of Title III to include the regulation of the content of

insurance products did not merit deference. That inter-

pretation is inconsistent with the express language of the

10 Other language in the same Department of Justice Technical

Manual supplies an interpretation of Title III that is inconsistent

with the language cited by Petitioner. The Department of Justice

also opines in conformity with its own regulations that “[a]s a

general rule, a public accommodation is not required to alter its

inventory to carry accessible or special products that are

designed for or are easier to use by customers with disabilities.”

Department of Justice Technical Assistance Manual § Ill 4.2500

reprinted in Americans with Disabilities Act Manual (BNA) at

90:0921. See, e.g., 28 C.F.R. Part 36 (App. B) at 630.

23

ADA and ignores the guidance provided by Congress in

the legislative history of the statute. App. at 13-14. The

language of Title III clearly expresses Congress’s intent to

proscribe discrimination against the disabled “in the full

and equal enjoyment of the goods, services, facilities,

privileges, advantages, or accommodations of any place of

public accommodation. . . . ” 42 U.S.C. § 12182(a) (1994)

(emphasis supplied). Title III’s framework is such that it

is mainly descriptive of equality in the access to the

physical facilities that it defines as “places of public

accommodation.” 42 U.S.C. § 12182. The actual words in

the provision do not refer in any way to the content of the

goods and services offered by the places of public accom-

modation.

Logically, if Congress had such an intent it could

easily have used the precise words that would support

the regulation of the content of the affected goods and

services. Moreover, it is unlikely that Congress would

have enacted a measure that would impose tremendous

costs on business without any debate. Yet, a review of the

legislative history shows that no such debate occurred.

The fact that the potential for using Title III of the ADA to

regulate the content of the goods and services offered by

places of public accommodation was not even debated by

Congress indicates that Congress was fully aware that

Title III would have no such effect.

The Sixth Circuit owed no deference to the Depart-

ment of Justice’s impermissible construction of Title III

since Congress clearly intended to limit the reach of Title

III to providing the disabled with the opportunity for full

24

participation in, and access to, places of public accom-

modation. Presley v. Etowah County Comm’‘n, 502 U.S. 491,

508-09 (1992). |

IV. THE SIXTH CIRCUIT’S HOLDING THAT TITLE

III! DOES NOT APPLY TO EMPLOYERS IS COR-

RECT.

The Sixth Circuit properly ruled that the Schering-

Plough Respondents cannot be held liable under Title III

of the ADA because “discrimination in the provision of

fringe benefits during employment is governed strictly by

Title I....” App. at 22. As the Sixth Circuit ruled, Title III

expressly does not govern the terms and conditions of

employment by providers of places of public accom-

modation. Id. This ruling is supported by the legislative

history of Title III which specifically and unambiguously

states that “Title III is not intended to govern any terms

or conditions of employment by providers of public

accommodations or potential places of employment;

employment practices are governed by Title I of this

legislation.” Rep. No. 116, 101st Cong., 1st Sess. 58 (1989).

It is no accident that Congress entitled Title III “Pub-

lic Accommodation and Services Operated by Private

Entities.” Title II] explicitly pertains to the conduct of

places of public accommodation in providing services.

The plain language of Title III does not comprehend

employment practices, and there is no textual basis for

asserting a cause of action under Title III arising from the

employment relationship.

25

On the other hand, Title I defines a comprehensive

scheme for addressing discrimination against the dis-

abled in the terms, conditions and privileges of employ-

ment. This scheme applies exclusively to employment

and it encompasses the very claims that Petitioner

asserted below. Many of Title I’s provisions would be

rendered superfluous if this Court were to decide that

claims against employers who provide disability benefits

through third parties are cognizable under Title II. More-

over, any employer who purchased a disability plan and

offered its employees the opportunity to participate in it

could be subject to suit under both Title I and Title III. It

follows that such an employer who was not liable under

Title I because the employee was not a “qualified individ-

ual with a disability,” would still be subject to liability

under Title III, which does not apply the same standing

requirement.

There is an additional incongruity. Title I of the ADA

incorporates the procedures of Title VII of the Civil

Rights Act of 1964, including its exhaustion requirements.

42 U.S.C. § 12117(a). If actions based on the employment

relationship were also cognizable under Title III, a dis-

abled employee could circumvent the exhaustion require-

ments of Title I by bringing his disability claim under

Title III. In many cases, the exhaustion requirements of

Title I would be rendered irrelevant.

Petitioner does not directly address this ruling, no

doubt because no authority exists to refute the above

unequivocal statement of legislative intent. Her claims

against the Schering-Plough Respondents arise from the

employment relationship, which Congress has exclu-

sively covered by Title I of the ADA. As a consequence,

26

this Court should not review the ruling that the Schering-

Plough Respondents cannot be held liable to Petitioner

under Title III of the ADA.

¢

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari should be denied.

Respectfully submitted,

Freperick J. Lewis

Counsel of Record

NicoLte Marit WALTHOUR

McKniGHt Hupson Lewis/

Forp & Harrison, LLP

6750 Poplar Avenue

Memphis, Tennessee 38138

Telephone: 901-756-1550

Attorneys for Respondents

Schering-Plough Corporation and

Schering-Plough Animal Health

Care Products, Inc.