Opposition Brief — McKnight v. General Motors Corp (No. 08-1113)

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C\ Supreme Coun, U.S.

FILED

Le MAY 29 2009

No.08-1113 OFFICE OF THE CLERK

Sn the

Supreme Court of the Anited States

LEROY McKNIGHT, ET AL.,

Petitioners,

Vv.

GENERAL Motors CorRPORATION,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

BRIEF IN OPPOSITION

Davip M. Davis PauL D. CLEMENT

Harpy, Lewis & Pace, P.C. Counsel of Record

401 SouTH OLD JEFFREY S. BUCHOLTZ

WooDWaRD AVE. Merritt FE. McA.IstTErR

SUITE 400 KING & SPALDING LLP

BiRMINGHAM, MI 48009 1700 PENNSYLVANIA AveE., N.W.

(248) 645-0800 WASHINGTON, D.C. 20006

(202) 737-0500

Attorneys for Respondent

General Motors Corporation

May 29, 2009

Becker Gallagher + Cincinnati, OH + Washington, D.C. - 800.890.5001

QUESTIONS PRESENTED

Title I (“Employment”) of the Americans with

Disabilities Act (“ADA”), 42 U.S.C. 12112(a) (2008),

bars “discriminatlion] against a qualified individual

on the basis of disability 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.”

The ADA defines “qualified individual” to

“mean{] an individual who, with or without

reasonable accommodation, can perform the

essential functions of the employment position that

such individual holds or desires.” 42 U.S.C.

12111(8).

The Questions Presented are:

(1) Whether retirees who become totally disabled

and receive Social Security Disability Insurance

(‘SSDI’) benefits are “qualified individualls]”

entitled to seek relief under § 12112(a) when they

have no current interest 1n holding an employment

position, but rather complain about the calculation of

their retirement benefits.

(2) Whether it violates § 12112(a) for a retirement

plan to provide that former employees’ supplemental

early retirement benefits will be reduced if they

receive SSDI benefits.

RULE 29.6 DISCLOSURE STATEMENT

Respondent General Motors Corporation

states that it is a _ publicly-traded corporation

incorporated under the laws of Delaware.

Respondent has no parent corporation and no

publicly-traded corporation owns ten percent or more

of its stock.

ill

TABLE OF CONTENTS

Page

Be EE iskciceoniicaniiine earns 1

A. Statutory back#round. ............<0..sscesssesersess 1

B. Statement of the Case. ...................sesesecsess 3

REASONS FOR DENYING THE WRIT ................... 9

L CERTIORARI IS NOT WARRANTED

BECAUSE THE APPARENT

CIRCUIT SPLIT LACKS PRACTICAL

CAPPER aos cssaicesecenecavciaccescasssenssveuss 11

A. The Apparent Circuit Spht is

PI oiiissccdcest en ios 11

B. This Case Is Not An Appropriate

Vehicle to Resolve the Apparent

SSR RICO Me dete ORCS ts 16

II. THE DECISION BELOW IS

CORRECT AND CONSISTENT WITH

THIS COURTS DECISION IN

FO evoke ees 21

A. The Sixth Circuit’s Decision is Fully

Consistent with Robinson. .................6.206+ 22

B. The Sixth Cuireuit’s Decision Is

Correct. ...... i os Fa aes mB rere te ee cree a oar eae 27

TABLE OF CONTENTS

(Continued)

a NEI ss ccsnsirushgudicoanicwea ncasaseaus ivaseierecoucciuseaes 35

APPENDIX

Or chs cac'ea puren vd shanesncdnnbabacsiaueaes la

ee i or a hac sea damendeesewatedeneel 2a

OE tes iusespsinikaseiiuhisseslevsavasites aoceiae 2a

NT MUR I Soros nce ers becaechedaemeueetnanccahouanaees 4a

Pe Rs EE va cic ctnictieis sed Aas bedi ieterseeaeen 6a

TABLE OF AUTHORITIES

Page

CASES

Alessi v. Raybestos-Manhattan, Inc.,

PO Be. We 8, ) ee 4, 21, 34

Amell v. United States,

Ee Te I cess inissccccsnsecennsssescccvinniacossice 31

Castellano v. City of New York,

442 F.30 G6 C6 Civ. 1996) .........5...0...00.6000052.2 passim

Cleveland v. Policy Mgmt. Sys. Corp.,

re aos ac dascevasseceecesdivedecdesens 6

District of Columbia v. Greater Washington Bd. of

Trade,

I a ois hac ecrecvvcvnisotnrvavrwmrccnenconess 31

EEOC v. CNS Ins. Cos.,

96 F.3d 1039 (7th Cir. 1996)............0.00.0.000en. 18, 19

EEOC v. Staten Island Sav. Bank,

207 F.3d 144 (2d Cir. 2OQO) ................cccceccccs.cnese 18

Fed. Mar. Comm'n v. Pac. Mar. Ass'n,

435 U.S. 40 (1978)................ Hee eo tm Sh 31

Fitts v. Federal Nat'l Mortg. Ass'n,

<2 Big BE is eee ae | ine ies ai

Ford v. Schering-Plough Corp.,

145 F.3d 601 (3d Cir. 1998) ............0..0.........passim

TABLE OF AUTHORITIES

(Continued)

Gilbert v. Homar,

EE viniccascadeccnsssassdenssvnevecdensbenssesecs 31

Howard Delivery Serv. v. Zurich Am. Ins. Co.,

Ne Ne Eo cinievisccsecccevecesGarscacssacvavsecsecs OM

Johnson v. K Mart Corp.,

27a F.28 1OS6 (Lith Cir. 2OOL).............0.00ss000000 13

Johnson v. K Mart Corp.,

281 F.3d 1368 (11th Cir. 2002) (en bance)........... 13

Kentucky Retirement Sys. v. EEOC.

Le ek | a ae 18, 21

Leheny v. City of Pittsburgh,

BBS FG 2 COG Ch, PEGG) 0. .cccesceccncsasnescceences 17

Morgan v. Joint Admin. Bd.,

268 F.3d 456 (7th Cir. 2001)....................68.. passim

Morrison: Knudsen Constr. Co. v. Dir.

ee oc i sccasvaeceednccasvesnaiesansacsayans 31

Newport News Shipbuilding & Dry Dock Co. v.

EEOC.

Mr ee assis ncsases vesienysceiescisnnseinvecenaces 31

Olmstead v. Zimring.

527 U.S. 581 (1999)

Parker v. Metro. Life Ins. Co..

121 F.3d 1006 (Gth Cir. 1997) (en banc) 7.8

TABLE OF AUTHORITIES

(Continued)

Parker v. Metropolitan Life Ins. Co.,

99 F.3d 181 (Gth Cir. 1996)..................csesccsseseee 7,8

Robinson v. Shell Oil Co.,

Be rire Be Se vein sv essnscenicsvsvchsisccenianees passim

Rodriguez v. United States,

480 U.S. 522 (1987) (per curiam).....................005 33

Walters v. Metro. Educational! Enters.,

SVG US, Be CUO OE ooicvn cscdsscccssncesensses 22, 20, 20, 2t

Weyer v. Twentieth Century Fox Film Corp.,

198 F.3d 1104 (9th Cir. 2000)........0..0.0.00ec. passim

STATUTES

Bt ae ks ey ita tots std pects dakas aicramcnnn 5)

ZO UB. TOBRDATHGAW) osc cs. ses .csssecsesenesonvese. 21, 34

Ae, PEI ona cchevcscnencss'csscadensigedasaies 21, 34

SS U.S. TIGER IAG onc... ciosiciscscces.s. See 21, 34

Oe re IIE oud c ep sccxni cc sevsessasetecsensseciuaedaawees 5

SRE OMe boo |.) SRS eS its passim

RSS a sk) ea

BP UGA. BERR BIS? occsscccissevccccss secon By lly ee as

42 U.S.C. 1220 1(e) ....... re vapesiaddos eauchabiasant i anaes

a, aut\J,

vill

TABLE OF AUTHORITIES

(Continued)

I gsc catccscvsrensecrsadeinasvcarenuses 2, 3 20

50s eusdavicnseseadedsurtedsevaventsisnties 23

TE FD sin cde ccecvcececeysccsccccesccvevavsvaves 7, 22

REGULATIONS

RR cn ne 20

Respondent General Motors Corporation

respectfully submits this Brief in Opposition.

STATEMENT

A. Statutory background.

The Americans with Disabilities Act’s basic

prohibition against discrimination in employment is

codified at 42 U.S.C. 12112(a). As applicable to this

case (it has since been amended in immaterial

respects, see Pet. App. 46a°47a), it provides:

(a) General rule. -- No covered entity

shall discriminate against a qualified

individual on the basis of disability 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.

The term of art “qualified individual” thus is

incorporated into § 12112(a) and defines the class of

individuals protected by the Act’s basic prohibition

against employment discrimination. That term is

defined by 42 U.S.C. 12111(8):

The term “qualified individual” means

an individual who, with or without

reasonable accommodation, can perform

the essential functions of the

employment position that such

individual holds or desires.

x*e

Subsection (b) of § 12112, entitled

“Construction,” provides that the word

“discriminate” in subsection (a) “includes” various

employment practices set out in seven paragraphs.

The paragraph relied upon by petitioners is §

12112(b)(2), which states that subsection (a) covers:

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’. title (such

relationship includes a_ relationship

with an employment or referral agency,

labor union, an organization providing

fringe benefits to an employee of the

covered entity, or an_ organization

providing training and apprenticeship

programs)

Although Title I’s basic prohibition against

discrimination protects only “qualified individuall[s],”

the ADA’s antiretaliation provision, 42 U.S.C.

12203, is not so limited. Subsection 12203(a)

provides:

(a) Retaliation. -- No person. shall

discriminate against any individual

because such individual has opposed

any act or practice made unlawful by

this Act or because such individual

made a charge, testified, assisted, or

participated in) any manner in an

investigation, proceeding, or hearing

under this Act.

The Petition Appendix contains many of the

relevant provisions of the ADA. It omits, however,

§ 12203, the anti-retaliation provision, and

§ 12201(c), the safe harbor provision for bona fide

benefit plans (see infra at 20-21 n.9). For the Court’s

convenience, respondent reproduces the most

significant provisions of the ADA, including §§ 12203

and 12201(c), in the Appendix hereto (“App.”).

B. Statement of the Case.

Petitioners are three retired former

employees of respondent who now receive Social

Security Disability Insurance (“SSDI”) benefits

based on a determination that they are totally

disabled. Petitioners took early retirement under

plans applicable to salaried and hourly workers with

30 years of service.!. Under the plans, petitioners

were eligible for supplemental early retirement

benefits until age 62 and one month. Then, as now,

respondent's early retirement plans provided for

“benefit integration” between the supplemental early

retirement benefits and Social Security benefits.

When Social Security Old Age benefits become

available, the supplemental early retirement

benefits expire (while the basic pension benefits

continue). Pet. App. 30a-3la. And the supplemental

early retirement benefits are lkewise reduced if a

retiree becomes eligible for SSDI benefits before

reaching the age of 62 and one month. As the court

below explained, “{blenefit integration permits a

1 Respondent's plans for salaried workers and hourly workers

are separate, but the plans are identical in all respects relevant

here Pet. App. 3a, 5a

higher level of income to all retired/disabled

employees by allowing benefits under such plans to

take credit for other income streams that a

participant many be entitled to receive.” Pet. App.

5a (internal quotations omitted). Early retirees are

also required to refund any overpayments of

supplemental early retirement benefits if SSDI

benefits are awarded retroactively. Pet. App. 6a.

After retiring and beginning to receive early

retirement benefits under respondent’s plans,

petitioners sought and were awarded SSDI benefits.

Accordingly, petitioners’ supplemental early

retirement benefits were reduced under the plans’

“benefit integration” provisions. The reduction is

smaller than the amount of SSDI benefits, so

petitioners receive more in total benefits than if they

had not sought and received SSDI benefits. See Pet.

5°6 & n.5. In accordance with the plans, respondent

also sought repayment of supplemental early

retirement benefits as a result of retroactive SSDI

benefits received by petitioners.

2. Petitioners filed this suit contending that

the benefit-integration provisions in respondent’s

plans discriminate on the basis of disability in

violation of § 12112(a) because supplemental early

retirement benefits are reduced on account of SSDI

benefits but not on account of income received from

other sources after retirement. For example, a

retiree who later works (with or without reasonable

accommodation of a disability) for another employer,

or who returns to respondent as a contract employee,

continues to receive the full amount of supplemental

early retirement benefits (until age 62 and one

month). Petitioners also alleged that the benefit:

integration provisions violated the Employee

Retirement Income Security Act of 1974 (“ERISA”),

29 U.S.C. 1001 et seg., and a Michigan statute.

With respect to petitioners ADA claim, no

petitioner alleges that respondent forced him to take

early retirement because of disability discrimination.

Nor does any petitioner allege that respondent

discriminated against him because of disability

during his employment. Indeed, petitioners do rot

allege that they had a disability during their

employment. And at the time that petitioners’

supplemental early retirement benefits were reduced

and this suit was filed, no petitioner “hlelld{j or

desireld]” a job with respondent (or elsewhere, for

that matter), consistent with the findings that

petitioners were totally disabled and entitled to

SSDI benefits. See 42 U.S.C. 423(d)(1)(A) (SSDI

eligibility requires “inability to engage in any

substantial gainful activity by reason of any

medically determinable physical or mental

impairment which can be expected to result in death

or which has lasted or can be expected to last for a

continuous period of not less than 12 months’”).2

2 In their amended complaint, two petitioners alleged that they

“could continue to work with reasonable accommodation,” Am.

Compl. J] 19, 29, despite their receipt of SSDI benefits, but did

not allege that they “desireld]” an “employment position” with

respondent. One petitioner conceded that he was “totally

disabled.” /d 4 13. The former two petitioners abandoned

their reasonable accommodation contention in the court below,

see Pet. App. 22a. and the petition does not suggest that any

petitioner could or would return to work at respondent or

elsewhere, even with accommodation. Given that petitioners

have satisfied the standard for SSDI benefits, it is not

Respondent moved for summary judgment on

the ground that petitioners, as retirees who neither

held nor desired a job and who could not work even

with reasonable accommodation, were not “qualified

individualls]” protected by § 12112(a). Respondent

also sought summary judgment on the ground that

its plans did not “discriminate . .. on the basis of

disability,” zd., even if the omitted words -- “against a

qualified individual” -- were not fatal to petitioners’

claims.

3. The district court agreed with respondent

on both issues. It held, first, that petitioners’ claims

failed because they were not “qualified individual[s]”

covered by § 12112(a). Petitioners argued that they

were “qualified individualls]” because they were

“qualified individualls]” at the time they retired.

Pet. App. 35a. The court disagreed, explaining that

the “plain language” of § 12111(8) requires

measuring a plaintiffs claim to be a “qualified

individual” in the present. Pet. App. 39a (§ 12111(8)

requires that plaintiff “can perform’ the essential

functions of the employment position that the

individual ‘holds or desires”).

In the alternative, the district court held that

petitioners’ claims failed on the merits because all of

surprising that the case thus comes to this Court with

petitioners concededly totally disabled. Cf Cleveland v. Policy

Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999). Indeed, there is a

degree of “protection integration,” to mirror the plans’ benefit

integration, in that the ADA protects those interested and able

to work and SSDI provides benefits to individuals suffering

total disabilities that preclude them from working. See :d. at

801 (The Social Security Act and the ADA both = help

individuals with disabilities, but in different ways.”)

respondent's employees had “equal access” to its

plans. Pet. App. 42a. When petitioners elected early

retirement, they knew that their supplemental early

retirement benefits would be reduced if they later

became eligible for SSDI. All employees were offered

the same benefits integration terms, without regard

to whether they were disabled. That only some early

retirees would become “the future disabled” did not

mean that the plans discriminated on the basis of

disability. See 1d.3

4. The Sixth Circuit affirmed on both

grounds. That court had held in Parker v.

Metropolitan Life Ins. Co., 99 F.3d 181, 183 (6th Cir.

1996), that § 12112(a) does not apply to former

employees who are not “qualified individualls].”

Petitioners urged the court below to reconsider

Parker in light of this Court’s decision in Robinson v.

Shell Oil Co., 519 U.S. 337 (1997), which held that

the word “employees” as used in Title VII's anti-

retaliation provision, 42 U.S.C. 2000e-3(a), extended

to former employees.4 Robinson did not address

3 The district court also dismissed petitioners’ ERISA claims.

The court noted that Congress and this Court had approved

benefits integration under ERISA, see Alessr v. Raybestos-

Manhattan, Inc., 451 U.S. 504 (1981), and that every court to

consider the question even after the enactment of the ADA has

held that benefits integration is permitted by ERISA. Pet. App.

42a-44a. The court then declhined to exercise supplemental

jurisdiction over petitioners’ state-law claims. Pet. App. 44a-

45a. Petitioners did not appeal the dismissal of therr ERISA

and state-law claims. Pet. App. 7a.

4 Even apart from the intervening fob:nson decision, the

precedential status of the Parker panel opinion was open to

debate. Parker was vacated by the Sixth Circuit upon

rehearing en banc, but rehearing was not sought as to the

§ 12111(8)’s “qualified individual” definition or the

ADA at all, but the Second and Third Circuits held

in the wake of Robinson that former employees are

covered by § 12111(8). See Ford v. Schering-Plough

Corp., 145 F.3d 601, 607 (3d Cir. 1998); Castellano v.

City of New York, 142 F.3d 58, 69 (2d Cir. 1998); but

cf. Ford, 145 F.3d at 615 (Alito, J., concurring in

judgment) (declining to reach this issue).

The court below held that Robinson did not

alter its analysis in Parker. Robinson emphasized

the lack of a “temporal qualifier” in the provision at

issue, which created ambiguity concerning its

application to former employees. 519 U.S. at 341-42.

Section 12111(8), in contrast, contains clear

“temporal qualifiers” -- the requirement that the

plaintiff “can perform” the essential duties of an

employment position that he or she “holds or

desires,” all expressed in the present tense. See Pet.

App. 17a-20a. Because the Second and Third.

Circuits disregarded these express “temporal

qualifiers,” their finding of ambiguity in § 12111(8)

“is tenuous at best.” Pet. App. 20a. The Sixth

Circuit thus joined the Seventh and Ninth Circuits

in holding, after Robinson, that former employees

who neither “hold{]” nor “desire[{]” an “employment

position,” and who “can[not] perform” the essential

functions of their former or any other job because

they are totally disabled, fall outside the scope of

“qualified individual” issue, and the en banc court did not

consider that issue. See Parker v. Metro. Life Ins. Co., 121

F.3d 1006, 1009 (6th Cir. 1997) (en banc). Pet. App. 12a-13a In

all events, the decision below now embodies the Sixth Circuit’s

precedent on the :ssue

§§ 12111(8) and 12112(a). See Morgan v. Joint

Admin. Bd., 268 F.3d 456, 457-58 (7th Cir. 2001);

Weyer v. Twentieth Century Fox Film Corp., 198

F.3d 1104, 1113 (9th Cir. 2000).5

The court of appeals also held that

respondent’s plans do not violate § 12112(a). The

plans were available to all employces regardless of

“contemporary or future disability status.” Pet. App.

24a (quoting Ford, 145 F.3d at 806). Respondent

thus provided “equal access to the same benefit plan”

to petitioners and all others with the requisite years

of service, and did not discriminate against

petitioners on the basis of disability in offering the

plans to them. /d.

REASONS FOR DENYING THE WRIT

The circuit split touted by the petition is of

negligible practical consequence and does not merit

this Court’s review. The question on which courts

have disagreed -- whether a totally disabled former

employee is a “qualified individual” entitled to bring

an ADA claim under §§ 12111(8) and 12112(a) -- is

academic, because even those courts that have

answered that question in the affirmative have

proceeded to reject claims like those at issue here.

In 1998, then-Judge Alito explained that the “ease”

with which similar claims could be rejected on other

grounds made it unnecessary to consider the

5 The courts below on occasion couched their rulings in the

language of “standing” See, eg. Pet. App. 2a. Despite this

imprecise usage, it is clear that the courts did not intend to

question whether petitioners had a basis under Article III to

bring their claams. See Pet. 6 n9.

principal question on which certiorari is sought here.

Ford, 145 F.3d at 615 (Alito, J., concurring in

judgment). Events since that time have confirmed

the correctness of that observation. As in Ford itself,

the question that Judge Alito declined to reach has

made no difference to the outcome in other ADA

cases brought by former employees challenging

benefits received post-employment. There is no need

for this Court to settle a dispute over what amounts

to dictum or over whether petitioners’ claims should

be rejected in one versus two steps.

This case exemplifies how the first question in

the petition lacks practical significance. Both courts

below held that petitioners’ claims failed regardless

of whether petitioners are “qualified individualls],”

because respondent’s plans did not discriminate on

the basis of disability. That holding is correct, and --

despite including it as a second question presented --

the petition makes no serious attempt to argue that

it independently merits this Court's review.

Accordingly, even if the Court otherwise might be

inclined to consider question one, this case is not an

appropriate vehicle because whether petitioners are

“qualified individuals” makes no difference to the

outcome.

Moreover, the Sixth Circuit's resolution of the

first question presented is correct. Section 12111(8)

contains precisely the “tempora] qualifiers” whose

absence was critical to this Court’s decision in

Robinson, supra. By limiting the term “qualified

individual” to a person “who, with or without

reasonable accommodation, can perform — the

essential functions of the employment position that

such individual holds or desires,” Congress made it

crystal clear that retirees who neither hold nor

desire any employment position and who are totally

disabled are not covered. Nor is there any basis for

concern that adhering to the plain language of

§§ 12111(8) and 12112(a) will risk inadequate

protection against retaliation. Unlike in Aobinson,

where the potentially underinclusive term

“employees” was used in Title VII’s anti-retaliation

provision, the ADA’s anti‘retaliation provision is not

linked to the “qualified individual” definition at issue

here. The ADA’s __§anti-retaliation provision

deliberately reaches far more broadly, protecting

“any individual” rather than only “qualified

individualls]” as defined in § 12111(8).

I. CERTIORARI IS NOT WARRANTED

BECAUSE THE APPARENT CIRCUIT

SPLIT LACKS PRACTICAL

CONSEQUENCE.

A. The Apparent Circuit Split is Academic.

Although the lower courts have disagreed on

the preliminary question whether totally disabled

former employees who neither hold nor desire any

employment position are “qualified individualls]”

entitled to bring suit under § 12112(a), the most

salient characteristic of that disagreement is its lack

of practical relevance to the outcome in cases

challenging post-employment _ benefits. That

question therefore does not merit this Court’s

review. The circuit courts that have addressed the

first question presented by the petition have

generally done so in two types of cases: (1) when a

former employee challenges a disparity in benefits

under a long-term disability plan, e.g., a disparity

between coverage for mental and _ physical

disabilities, see, e.g, Weyer v. Twentieth Century

Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000); Ford

v. Schering-Plough Corp., 145 F.3d 601 (3d Cir.

1998); or (2) when a retiree alleges that a pension

plan provides reduced benefits on account of

disability, see, e.g., Morgan v. Joint Admin. Bd., 268

F.3d 456 (7th Cir. 2001); Castellano v. City of New

York, 142 F.3d 58 (2d Cir. 1998). Both types of

claims have been consistently rejected regardless of

the resolution of the principal question on which

certiorari 1s sought.

1. In Ford, the plaintiff challenged her former

employer’s long-term disability benefits plan because

it limited benefits for mental disability to two years

but did not similarly limit benefits for physical

disability. 145 F.3d at 603. The case thus presented

the “purely legal question of whether a disparity

between disability benefits for mental and physical

disabilities violates the [ADA].” /d The majority’s

negative answer to that question ended the case, but

the majority nonetheless volunteered its analysis of

the “preliminary issue [of] whether Ford is even

eligible to sue under the ADA.” /d. at 604. Then-

Judge Alito did not join that analysis and concurred

only in the judgment. Judge Alito observed that “[iJn

light of the ease with which Ford's claims can be

resolved” on other grounds, there was no need to

reach the question “whether a former employee who

can no longer work can meet Title I’s ‘qualified

individual with a disability’ requirement. /d. at

615. The first question on which certiorari is sought

was likewise irrelevant to the outcome in Weyer.

After determining that as a former emplovee the

plaintiff was not covered by Title I, the Ninth Circuit

went on to hold that the disparity between mental

and physical disability benefits in the former

employer's plan did not violate Title I in any event.

Weyer, 198 F.3d at 1116-17.6

2. Former employees who, like petitioners,

have alleged post-employment discrimination in

pension or retirement benefits have also lost on the

merits, regardless of whether they have been treated

as “qualified individualls]” entitled to bring such a

claim. In Castellano v. City of New York, 142 F.3d

58 (2d Cir. 1998), former police officers and

firefighters who retired with disability pensions

argued that the ADA entitled them to the additional

benefits that New York City gave to officers who

retired after 20 years of service with “for service”

rather than disability pensions. Some plaintiffs had

served less than 20 years and thus were eligible only

for disability pensions. Other plaintiffs had served

for 20 years, but chose disability pensions rather

than “for service” pensions. See id. at 64°65. The

court considered at great length whether the

plaintiffs (who, unlike petitioners, were disabled at

the time of separation) could be deemed “qualified

individualls]” entitled to sue under § 12112(a),

6 The only exception to the courts of appeals’ unanimous

rejection of such mental-physical disability benefits disparity

claims was a decision by a divided panel of the Eleventh Circuit

that was vacated upon grant of rehearing en banc. See

Johnson v. N Mart Corp., 273 F.3d 1035 (1th Cir. 2001); rd. at

1070 (vacatur order). The panel decision remains vacated, and

rehearing remains stayed. pending the outcome of the

defendant's bankruptcy. See Johnson v. AK Mart Corp., 281

F.3d 1368 (ith Cir. 2002) (en banc).

ultimately answering that question in_ the

affirmative. See id. at 66°69. But the court then

made short work of the claims on the merits, holding

that the City did not discriminate based on disability

in reserving “for service” pensions to officers who

served the requisite 20 years or in declining to

permit 20-year veterans who freely chose disability

pensions to receive “for service” pensions as well. /d.

at 70-71. Just as the Sixth Circuit concluded in the

present case, the latter retirees had equal access to

the benefits they complained had been denied them,

and nothing in the ADA required the City to give

disabled retirees more benefits than similarly-

situated non-disabled retirees. /d. As to the vast

majority of plaintiffs in Castellano, the court’s

“qualified individual” discussion was thus

unnecessary.

One plaintiff (Velardi) made a_ different

allegation. Velardi alleged that he served 20 years

and should have been free to choose either a “for

service” or a disability pension, but that, because of

his disability, the City “forced” him to retire with a

disability pension. /d. at 72. The Second Circuit

held that this allegation stated a valid claim of

disability discrimination. /d. Although the court

appeared to believe that its conclusion that former

employees can be “qualified individualls]” despite

not “desirling]” a job was necessary to uphold

Velardi’s claim, see id., it was not. Velardi’s claim

was that the City had discriminated against him

while he was still an employee, in forcing him to

retire with a disability pension instead of giving him

the choice between a disability pension and a for:

service pension. Velardi “hfelld{J” a job and thus

plainly was covered by Title I at the time of the

alleged discrimination. Just as a covered employee

who alleges that he was fired in violation of the ADA

can sue under § 12112(a) despite being a “former”

employee at the time the suit is brought, Velardi

could sue for discrimination in the “terms,

conditions, and privileges of [his] employment,” /d.,

that occurred while he was an employee. The

Castellano court therefore did not need to consider

whether § 12111(8)’s “qualified individual” definition

can be extended to cover a former employee who

alleges discrimination occurring after his

employment has ended and at a time when he no

longer “desires” a job (or “can perform the essential

functions” of a job) with his former employer. And,

in all events, an individual like Velardi who is

disabled while still an employee poses a different

question from individuals like petitioners who

become disabled only after ending the employment

relationship.

For these reasons, despite some

methodological disagreement as to whether there are

one or two (or more) fatal defects in claims brought

by retirees, there is no circuit split over whether

retirees have a valid claim under the ADA. Claims

of post-employment discrimination affecting former

employees who are no longer “qualified individual[s]”

at the time of the alleged discrimination have been

uniformly rejected. Although some judges have

chosen to address the subsidiary issue of whether

such plaintiffs can sue under § 12112(a) before

holding that such claims in any event fail to state a

violation of that provision, any disagreement on that

subsidiary issue 1s an academic exercise. Review of

this issue can await the day, if it ever comes, on

which a court of appeals finds retirees to be

“qualified individualls]” and awards them some

relief. Then-Judge Alito was correct that there was

no need for the Third Circuit to reach the “qualified

individual” issue in Ford, and there is even less

reason for this Court to devote its scarce resources to

it in the absence of a conflict that matters to the

outcome of actual cases.

B. This Case Is Not An Appropriate Vehicle to

Resolve the Apparent Split.

This case exemplifies why the disagreement

concerning whether retirees who are totally disabled

and do not “desirel]” a job are “qualified

individualls]” does not merit this Court’s

intervention. As in the cases discussed above,

petitioners failed to allege a valid § 12112(a) claim,

even aside from petitioners’ failure to come within

the “qualified individualls]” entitled to bring suit.

ven if the Court might be inclined to consider the

first question presented in a case where the question

was outcome-determinative, this is not such a case.

Petitioners make a half-hearted effort to seek this

Court’s review on the Sixth Circuit’s second basis for

dismissing their claims, but there plainly is no need

for this Court to consider that question.

1. The Sixth Circuit concluded that because

petitioners had equal access to respondent's plans,

there was no violation of § 12112(a). Pet. App. 24a.

That conclusion is correct, as well as fully consistent

with other circuits’ treatment of similar claims

The Sixth Circuit reasoned that because

petitioners and all other employees had the same

opportunity to elect early retirement under the same

plans with the same terms, respondent did not

discriminate on the basis of disability in offering the

plans. Pet. App. 24a. Unlike in Castellano,

respondent did not “force” any petitioner to enroll in

a less-advantageous plan than other employees were

offered: indeed, respondent offered only a single,

unitary plan for salaried employees and a single,

unitary plan for hourly employees. As in Leheny v.

City of Pittsburgh, 183 F.3d 220, 230 (3d Cir. 1998),

and Ford, supra, all employees “had the opportunity

to join the same plan with the same schedule of

coverage, meaning that every [GM] employee

received equal treatment.” Pet. App. 24a (quoting

Ford, 145 F.3d at 806). Petitioners do not allege that

they were disabled at the time they elected to take

early retirement, let alone that respondent somehow

discriminated against them on the basis of disability

by offering them less favorable terms than non-

disabled employees received.

To the contrary, all of respondent’s employees

who were eligible for early retirement had the

opportunity to elect early retirement under the same

terms, without regard to whether they were then

disabled or would in the future become disabled. All

of respondent’s employees who elected early

retirement knew that, if they were to become totally

disabled and receive SSDI benefits before attaining

age 62 and one month, their supplemental early

retirement benefits would be reduced. See Pet. App.

24a (“So long as every employee is offered the same

plan regardless of that employee’s contemporary or

future disability status, then no discrimination has

occurred .. .”) (quoting Ford, 145 F.3d at 806); see

also Leheny, 183 F.3d at 230 (holding that equal

entitlement under the pension plan, even if reduced

in proportion to worker's compensation benefits

during the time retiree receives benefits, does not

violate ADA). This Court made a similar point in

the context of the Age Discrimination in

Employment Act in Kentucky Retirement Sys. v.

EEOC, 128 S. Ct. 2361, 2367 (2008) (“the specific

benefit at issue here is offered to all hazardous

position workers on the same _ nondiscriminatory

terms ex ante”).

In addition to the Third Circuit authority on

which the court below expressly relied, the decision

below is fully consistent with decisions of the Second,

Seventh, and Ninth Circuits. In HEOC v. Staten

Island Sav. Bank, 207 F.3d 144 (2d Cir. 2000), the

court held that it did not violate the ADA for the

employer to offer different long-term benefits for

mental and physical disabilities. As in the present

case, the court emphasized that, whatever the levels

or details of coverage in the plan, the plaintiffs “were

given access to the same fringe benefit plan as their

coworkers and, in, that sense, enjoyed equal

‘compensation, .. . terms, conditions, and privileges

of employment.” /d. at 149 (ellipsis in original).

“Viewed through this lens,” the court explained,

“they were not discriminated against at all.” /d.7

In EEOC v. CNS Ins. Cos., 96 F.3d 1039 (7th

Cir. 1996) (D. Wood, J.), the court similarly made

The Second Circuit noted that given its holding that the

employer had not discrnminated based on disability in violation

of § 12112(a), it did not need to consider whether the plaintiffs

were “qualified individuallsl.” /a@. at 147 0.3

clear that the key inquiry is whether the employer

discriminated based on disability in providing access

to its plan or plans. The court recognized that a

pension plan may be a term or condition of

employment covered by § 12112(a), but it

emphasized that

there is no claim here that CNA

discriminated on the basis of disability

in offering its pension plan to anyone.

It did not charge higher prices to

disabled people, on the theory that they

might require more in benefits. Nor did

it vary the terms of its plan depending

on whether or not the. employee was

disabled.

Id. at 1044. The court explained that the plaintiffs

claim in reality was that the plan discriminated

against “employees who in the future will become

disabled due to mental conditions,” because those

employees’ “present dollars (unbeknownst to them)

are buying only 24 months of benefits .... /d.

(emphasis in original). Because all employees had

equal access to the plan, the court concluded that

this claim was “more grist for the ERISA mill or the

national health care debate than for the ADA.” Jd;

see also Weyer, 198 F.3d at 1116 (“Fox did not treat

Weyer any differently because of her disability. It

simply gave her the same opportunity that it gave all

the rest of its employees... .”).

2. Petitioners argue briefly (Pet. 32-33) that

the decision below is contrary to this Court's decision

in Olmstead v. Zimring, 527 U.S. 581 (1999). This

contention cannot bear scrutiny. O/mstead did not

involve Title I of the ADA and did not present any

question relating in any way to retirement benefits.

To the contrary, Olmstead involved Title II of the

ADA (which governs public services furnished by

governmental entities) and presented “the question

whether the proscription of discrimination may

require placement of persons with mental

disabilities in community settings rather than in

institutions.” Jd. at 587. Regulations required

services to be provided “in the most integrated

setting appropriate to the needs of qualified

individuals with disabilities.” Jd. at 592 (quoting 28

C.F.R. 35.130(d) (1998)).8 The Court held that

“lujnjustified isolation . .. is properly regarded as

discrimination based on disability,” sd. at 597, but

also held that a state’s resource constraints could

limit its obligations, see id. at 607. None of these

issues has any bearing on, or counterpart in, the

present case, and there is nothing in O/mstead that

remotely strengthens the case for granting certiorari

here.

In short, the Sixth Circuit’s holding that

respondent’s plans do not violate § 12112(a) simply

does not merit the Court’s review. Because

petitioners’ claims would fail even if the Court were

to find them to be “qualified individualls],” this is not

an appropriate case for the Court to consider the

first question presented by the petition.9

8 Unhke in the present case, 1t was undisputed that the

plaintiffs were “qualified individuals with disabilities.” See id

at 602-03.

9 Although not raised below, another potential independent

ground to affirm the decision below may exist. In § 12201(c)(3),

IT. THE DECISION BELOW IS CORRECT AND

CONSISTENT WITH THIS COURT'S

DECISION IN ROBINSON.

Petitioners suggest that certiorari is

warranted because the decision below is inconsistent

with this Court’s decision in Robinson v. Shell O1l

Co., 519 U.S. 337 (1997). Petitioners also suggest

the ADA provides a safe harbor for “a bona fide benefit plan

that is not subject to State laws that regulate insurance.” This

provision exempts a “bona fide benefit plan” that is subject to

ERISA (and correspondingly not subject to state laws governing

insurance) from Title I’s prohibitions and restrictions. See

Fitts v. Federal Nat'l Mortg. Ass'n, 236 F.3d 1, 4 (D.C. Cir.

2001). The safe harbor does not apply if a pian is used as a

“subterfuge to evade the purposes” of Title I, 42 U.S.C.

12201(c), but there is no allegation here of any such “specific

intent.” See Ford, 145 F.3d at 615 (Ahito, J., concurring in

judgment) (no need to reach other issues “[iJn light of the ease

with which Ford’s claims can be resolved under section

{12201(e)]"). As this Court recognized in the context of the

ADEA just last Term, the interaction between the anti-

discrimination statutes and pension plans is much more

complex than the application of those statutes to individual

employment decisions. See Kentucky Retirement Sys., 128 S.

Ct. at 2367. Before this Court wades into that issue, it would

want not only a split, which is currently lacking because no

court of appeals has awarded relief to a retiree under the ADA

in a non-vacated opinion, but also a decision that addressed the

safe harbor provision as well as the questions raised in the

petition. The interaction with ERISA is particularly important

to address in light of this Court’s decision in Alessi v.

Raybestos-Manhattan, Inc., 451 U.S. 504 (1981), which

observed that ERISA “expressly preserved the option of pension

fund integration with benefits available under . . . the Social

Security Act,” id. at 514 (citing 29 U.S.C. 1054(b)(I)(B) Ov),

1054(b)(1(C), and 1054(b)1)(G)), and held that integration

with workers’ compensation benefits is authorized as well, see

id. at 526

that the Sixth Circuit's decision is incorrect because

the ADA’s prohibition on discrimination with respect

to “fringe benefits” cannot be given effect unless

former employees like petitioners are entitled to sue

and because the decision below leaves a “remedial

gap,” Pet. 28. None of these arguments is

persuasive. The decision below is entirely consistent

with Robinson and correctly interprets the plain

language of §§ 12111(8) and 12112(a).

A. The Sixth Circuit’s Decision is Fully

Consistent with Robinson.

1. The question in Robinson was whether the

word “employees” in the anti-retaliation provision of

Title VII included former employees. Section 704(a)

makes it unlawful “for an employer to discriminate

agaist any of his employees or applicants for

employment” who have utilized the protections of

Title VII or assisted others in so doing. 42 U.S.C.

2000e-3(a). The Robinson Court acknowledged that

“[a]t first blush,” the term “employee” in § 704(a)

“would seem to refer to those having an existing

employment relationship with the employer in

question.” 519 U.S. at 341. But the Court explained

that certain features of § 704(a) made it ambiguous

and militated in favor of holding it to include former

employees.

First, the Court emphasized that “there is no

temporal qualifier” in § 704(a) itself or in

surrounding provisions to make clear whether

§ 704(a) applies only to persons who are. still

“employees” at the time of the retaliation. /d. at 341-

42. On this critical “temporal qualifier” point, the

Court distinguished its decision just one month

earlier in Walters v. Metro. Educational Enters., 519

U.S. 202 (1997). The Court had held unanimously in

Walters that “employees” as used in § 701(b), 42

U.S.C. 2000e(b), relating to the 15-employee

threshold for coverage by Title VII, unambiguously

referred to current employees only. As the Court

explained in Robinson, § 701(b) was clear in that

regard because it “has two significant temporal

qualifiers.” 519 U.S. at 341 n.2. Section 701(b)

provides that Title VIJ applies to an employer “who

has fifteen or more employees for each working day

..” The “temporal qualifiers” in § 701(b) are the

present-tense word “has,” used in relation to “each

working day,” which together “specify the time frame

in which the employment relationship must exist.”

Robinson, 519 U.S. at 341 n.2. Second, the Robinson

Court relied on the fact that the word “employee”

clearly included former employees as used in at least

some provisions of Title VII. See id. at 342-43

(provision authorizing “reinstatement” necessarily

applies to former employees).

For those reasons, the Court concluded that

§ 704(a) was ambiguous with respect to the question

of “in what time frame must the employment

relationship exist.” /d at 344. Having found

§ 704(a) ambiguous, the Court considered what

interpretation would be most consistent with that

section's purpose. In doing so, the Court emphasized

that § 704(a) was an-anti-‘retaliation provision that

by its nature would be “effectively vitiate[d]” if it

were confined to current employees. Jd. at 345. If

employers could retaliate with impunity against

Title VII complainants after separation -- e.g, by

giving negative references -- that “would undermine

the effectiveness of Title VII by allowing the threat

of postemployment retaliation to deter victims of

discrimination from complaining... .” Jd. at 346.

2. Robinson did not mention §§ 12111(8) or

12112(a) of the ADA, and its analysis was closely

tied to the text and context of the particular Title VII

provisions at issue. Aobinson’s failure to mention

the ADA is hardly surprising, because the basic

dynamic that drove the analysis in Robinson -- the

potential underinclusiveness of Title VII's anti-

retaliation provision -- does not arise in the ADA,

which contains an anti-retaliation provision clearly

drawn in broader terms than the ADA’s anti-

discrimination provisions at issue here. See infra at

26-27. The court below, like the Seventh and Ninth

Circuits, engaged in a careful review of §§ 12111(8)

and 12112(a) in the light of Robinson and correctly

concluded that these ADA provisions unambiguously

do not cover totally disabled retirees who neither

hold nor desire a job. See Pet. App. 13a-21a.

a. First, these courts have observed that

“Title I, unlike the section of Title VII at issue in

Robinson, has a ‘temporal qualifier.” Weyer, 198

F.3d at 1112. Section 12111(8) defines “qualified

individual” as “someone who ‘can perform. That

definition uses the present tense. Thus, one must be

able to perform the’ essential functions of

employment at the time that one is discriminated

against.” Id. (emphasis in original). Section

12111(8)’s other temporal qualifiers reinforce this

conclusion. In addition to requiring a present ability

to perform the essential functions of a job, that

provision refers in the present tense to “the

employment position that such individual holds or

desires.” Jd. The ADA, therefore, has more in

common with the provision that the Court limited to

current employees in Wa/ters than to the anti-

retaliation provision distinguished in Robinson.

Moreover, § 12112(a) explicitly incorporates

the defined term “qualified individual’ in _ its

prohibition of “discriminatlion] against a qualified

individual.” There is no counterpart wv the “qualified

individual” definition in Title VII, so loose references

to Title VII and the ADA as “sibling statutes,” Ford,

145 F.3d at 606, obscure these important differences

in text and structure. The detailed and clear

definition of “qualified individual,” and __ its

incorporation into the substantive prohibition, stand

in stark contrast to the unilluminating definition of

“employee” (“an individual employed by an

employer’) and the bare use of the word “employees”

in § 704(a) at issue in Robinson. See 519 U.S. at

342. Although Title VII and the ADA may be closely

related in other respects, on the issue here “the

statutes are not analogous.” Weyer, 198 F.3d at

1111.

Second, the contextual and policy concerns

that impelled the Robinson Court to a_ broad

construction of Title VII’s anti-retaliation provision

are not present here, because §§ 12111(8) and

12112(a) have nothing to do with retaliation and the

ADA’s anti-retaliation provision is expressly drawn

to cover “any individual,” not just the narrower

subset of “qualified individualls]” covered by Title I's

anti-discrimination provisions. See Morgan v. Joint

Admin. Bd. 268 F.3d 456, 458 (7th Cir. 2001)

(Posner, J.) (‘The difference is stark.”). If the ADA’s

anti-retaliation provision were similar to Title VII's,

perhaps Robinson’s logic would transfer to that

provision (though that still would be beside the point

given that the provisions at issue here do not relate

to retaliation). In reality, however, the ADA’s anti:

retaliation provision is quite different, and that

difference further confirms that §§ 12111(8) and

12112(a) have the limited scope imparted by their

plain and precise language.

The ADA’s anti-retaliation provision is in Title

V, not Title I, and it is drafted to extend protection to

a far broader universe of individuals than those

protected by Title I. The ADA’s anti-retaliation

provision makes it unlawful to

discriminate against any individual

because such individual has opposed

any act or practice made unlawful by

this chapter or because such individual

made a charge, testified, assisted, or

participated in any manner in an

investigation, proceeding, or hearing

under this chapter.

42 U.S.C. 12203(a) (emphasis addes). As Judge

Posner explained, Title I’s “statutory protections

against discrimination are protections of ‘lotherwise]

qualified individualls} with a disability,’ 42 U.S.C.

12112(a), but the retaliation provision protects

individuals, period.” Morgan, 268 F.3d at 458. The

difference between the precisely defined term

“qualified individual” and the broad inclusion of “any

individual” further supports the common-sense

conclusion that Congress meant what it said in

§§ 12111(8) and 12112(a).

b. In Castellano and Ford, the Second and

Third Circuits concluded that Robinson's finding of

ambiguity in the word “employees” in § 704(a) served

to create ambiguity in a different term (“qualified

individual”), in a different type of provision (z.e., one

having nothing to do with retaliation), in a different

statute. Those courts seriously misread both

Robinson and §§ 12111(8) and 12112(a).

Both courts tracked ARobinsen’s path toward a

finding of ambiguity by declaring that these ADA

provisions, like § 704(a), lack a temporal qualifier.

The Third Circuit, for example, stated that “the ADA

contains an ambiguity concerning the definition of

‘qualified individual] with a disability’ because there

is no temporal qualifier for that definition.” Ford,

145 F.3d at 606; see also Castellano, 142 F.3d at 67.

This statement is mystifying -- there is a temporal

qualifier (indeed, multiple, mutually-reinforcing

temporal qualifiers) in that definition stse/f Just as

in Wa/ters, the repeated use of the present tense

“speciflies] the time-frame” in which the plaintiff

must satisfy the definition, ze., at the time of the

alleged discrimination. See Hobinson, 519 U.S. at

342 n.2. As the court below correctly pointed out,

“(tlhe Ford court appears to have disregarded the

plain language of the statute -- which does, in fact,

contain temporal qualifiers . . . -- and instead

manufactured ambiguity where none existed.” Pet.

App. 20a.

B. The Sixth Circuit’s Decision Is Correct.

The courts that have departed from the plain

language of §§ 12111(8) and 12112(a) have done so

because they have had difficulty reconeiling the

definition of “qualified individual” with the ADA’s

reference to discrimination with respect to “fringe

benefits.” 42 U.S.C. 12112(b)(2). The court below

correctly rejected the contention that such an

inconsistency exists or justifies disregarding the

plain language of §§ 12111(8) and 12112(a).

1. There is no inconsistency between the

“fringe benefits” language in § 12112(b)(2) and the

“qualified individual” definition. Subsection (a) of

§ 12112 makes it unlawful to “discriminate against a

qualified individual on the basis of disability,” and

subsection (b), entitled “Construction,” provides that

that quoted language “includes” activities set out in

seven paragraphs. See App. 2a-4a. It is § 12111(8)

that defines “qualified individual”; § 12112(a)

incorporates that defined term by explicit reference;

and nothing in § 12112(b), a gloss on § 12112(a),

purports to vary that definition. Given this

statutory structure, it would be passing strange for

an isolated, and indeed parenthetical, reference to

“fringe benefits” in § 12112(b) to defeat the plain

language of § 12111(8).

Paragraph (2) of § 12112(b) is the provision

that refers to “fringe benefits.” It does not even

address fringe benefits directly, but rather includes

a reference to “providing fringe benefits” in a

parenthetical listing of exemplary “relationships”

that preclude an employer from “contracting out”

discrimination prohibited by Title I. Paragraph (2)

provides that § 12112(a) includes

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 (such

relationship includes a_ relationship

with an employment or referral agency,

labor union, an organization providing

fringe benefits to an employee of the

covered entity, or an _ organization

providing training and apprenticeship

programs).

42 U.S.C. 12112(b)(2).

The Second and Third Circuits focused on

types of “fringe benefits” that are received after

employment has ended, such as pension benefits,

and concluded that it would conflict with the

prohibition on discrimination with respect to fringe

benefits to interpret the “qualified individual”

definition according to its plain language to exclude

retirees. See Ford, 145 F.3d at 605 (stating that

there is a “disjunction between the ADA’s definition

of ‘qualified individua] with a disability’ and the

rights that the ADA confers”); see also Castellano,

142 F.3d at 66°67.

The Second and Third Circuits set up a false

choice between the central “qualified individual”

language on the one hand and the very peripheral

(for present purposes) protections against

discrimination by organizations “providing fringe

benefits” on the other. First, focusing on the

inclusion of “fringe benefits” in paragraph (b)(2)

risks losing sight of the import of the provision as a

whole. As quoted in full above, it is clear that the

chief purpose of this paragraph governing

“participatlion} in a contractual or _ other

arrangement or relationship” is to ensure that an

employer cannot evade the ADA by outsourcing its

hiring, training, and benefits programs. That

purpose is far afield from the supposed conflict

identified by those courts. If the import of

paragraph (2) were a listing of potential types of

prohibited discrimination, all of which applied

exclusively to retirees, 1t might have relevance.

Instead, paragraph (2) is clearly an_ anti:

circumvention provision, not a provision designed to

shed light on the meaning of “qualified individual.”

Moreover, the very fact that the reference to fringe

benefits occurs in a parenthetical elaborating on

examples of relationships covered by the anti-

circumvention rationale of paragraph (2) strongly

cautions against the conclusion that paragraph (2)

holds the key to the question whether “qualified

individual” includes retirees. The answer to that

question must be found instead in the precise place

the statute promises to provide the answer, namely,

in the definition of “qualified individual” and its

multiple temporal qualifiers.

In all events, the central error that the

Castellano and Ford courts made is in incorrectly

assuming that fringe benefits apply exclusively to

retirees and thus that § 12112(b)(2)’s reference to

fringe benefits would be meaningless if former

employees are not eligible to sue under § 12112(a).

See Castellano, 142 F.3d at 69. That argument

critically depends on the proposition that only

former employees receive fringe benefits, but that

proposition 1s manifestly incorrect. In a broad range

of contexts, this Court has recognized that “fringe

benefits” include many benefits that are received or

utilized during employment. “Fringe benefits” thus

can include health insurance, vacation pay, overtime

pay, sick leave, and meals.!° While retirement

benefits might be among the items that make up the

universe of fringe benefits, they are hardly the

exclusive or even the most important fringe

benefit.!' Because employees who satisfy the plain

language of the “qualified individual” definition

receive multiple types of fringe benefits, the

inclusion of “fringe benefits” in § 12112(b)(2) can be

given effect without rewriting § 12111(8).

10 See, e.g., Howard Delivery Serv. v. Zurich Am. Ins. Co., 547

U.S. 651, 654 (2006) (“pension plans, and group health, life,

and disability insurance”); Gi/bert v. Homar, 520 U.S. 924, 932

(1997) (“health and life insurance”); District of Columbia v.

Greater Washington Bd. of Trade, 506 U.S. 125, 133 (1992)

(Stevens. J., dissenting) (“vacation pay and health insurance”);

Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 US.

669, 689 (1983) (“health and disability insurance programs’);

Morrison-Knudsen Constr. Co. v. Dir., 461 U.S. 624, 646 n.7

(1983) (Marshall, J., dissenting) (overtime, vacation pay,

meals furnished employees, and such exotic items as

automobile parts”); Fed. Mar. Comm'n v. Pac. Mar. Ass'n, 435

U.S. 40, 47 n.7 (1978) (“bargained-for plans for vacation pay,

pay guarantees, pensions, welfare, and holidays’); Ame// v.

L'nited States, 384 U.S. 158, 160 (1966) (“sick leave and

vacation pay, and for death, health, medical and pension

programs’).

i And even with respect to retirement benefits, an

orgamization that provides fringe benefits could discriminate

against current employees. For example, an organization that

allows current emplovees to check the balance in their

retirement plan over the telephone, but that fails to

accommodate employees with hearing disabilities, would seem

to come within the ambit of § 12112(b)(2)

2. To be sure, adhering to the “qualified

individual” definition means that fewer claims can

be brought with respect to fringe benefits received

after employment has ended. But that just means

that Congress could have gone further than it did in

Title I. “Congress could reasonably decide to enable

disabled people who can work with reasonable

accommodation to get and keep jobs, without also

deciding to equalize post-employment fringe benefits

for people who cannot work.” Weyer, 198 F.3d at

1112; Pet. App. 18a. The Third Circuit clearly erred

when it concluded (albeit in what amounts to

dictum) that the “qualified individual” definition

should give way “[iJn order for the rights guaranteed

by Title I to be fully effectuated.” Ford, 145 F.3d at

606. At best, that reasoning is circular. The

definition of “qualified individual” itself limits the

rights guaranteed by Title I. Full effectuation of the

rights guaranteed does not justify expanding the

universe of the rights guaranteed. At worst, that

reasoning ignores the compromises that produced

the ADA, like most legislation. As the court below

noted (agreeing with the Ninth Circuit's analysis of

this issue), insisting on “fully effectuating” one

provision of a complex statute “has the potential to

subvert the intent of Congress.” Pet. App. 19a. That

is because major legislation like the ADA

often results from a_— delicate

compromise among competing interests

and concerns. If we were to ‘fully

effectuate’ what we take to be the

underlying policy of the legislation,

without careful attention to the

qualifying words in the statute, then we

would be overturning the nuanced

compromise in the legislation, and

substituting our own _ cruder, less

responsive mandate for the law that

was actually passed.

Pet. App. 19a (quoting Weyer, 198 F.3d at 1113); see

also Rodriguez v. United States, 480 U.S. 522, 526

(1987) (per curiam) (“it frustrates rather than

effectuates legislative intent simplistically to assume

that whatever furthers the _ statute’s primary

objective must be the law”) (emphasis in original).

3. For similar reasons, petitioners’ contention

(Pet. 28) that the decision below leaves a “gap” in

protection cannot alter the plain language of

§§ 12111(8) and 12112(a). But, in all events, what

petitioners term a “gap” is just the result of

Congress’ decision in the ADA to address the rights

of workers and leave the difficult issues raised by the

totally disabled and their pension rights primarily to

other statutes. Title I was clearly -- and reasonably -

- intended to “draw workers with a disability into the

workforce.” Morgan, 268 F.3d at 458. Congress

simply did not undertake in the ADA to regulate

benefits for people who are totally disabled and

unable to work. That is principally the role of the

Social Security Act’s provision for SSDI benefits,

which pre-existed the ADA. Just because the ADA

does not cover a matter does not mean that an

“arbitrary gap” (Pet. 28) exists, for the matter may

be covered by other laws, such as the Social Security

Act and ERISA.

Indeed, although petitioners abandoned their

ERISA claim, that should not obscure the fact that

ERISA, and not the ADA, is the federal statute that

most directly and comprehensively “addresses fringe

benefits for people unable to perform the functions of

a job even with reasonable accommodations.”

Weyer, 198 F.3d at 1112; see a/so Pet. App. 21a.

Congress expressly authorized the kind of “benefit

integration” with SSDI benefits at issue in this case

when it enacted ERISA. See Alessi, 451 U.S. at 514

(citing 29 U.S.C. 1054(b)(1)(B)(iv), 1054(b)(1)(C), and

1054(b)\(1)(G)). And in Alessi, this Court spoke

approvingly of benefit integration, see jd., and held

that ERISA permitted integration with workers’

compensation benefits as well, zd. at 526. It is thus

not surprising that, far from prohibiting benefit

integration when it enacted the ADA, Congress took

pains to create a safe harbor delimiting the

respective domains of Title I and ERISA. See supra

at 20°21 n.9. Certainly, this kind of statutory safe

harbor is not the kind of “arbitrary gap” that would

strengthen the case for the Court’s review. !2

‘2 It also ts far from clear that interpreting §§ 12111(8) and

12112(a) as petitioners advocate would help people who are

totally disabled. Judge Posner, in Morgan, explained that

“{a]llowing former employees to complain about

postemployment discrimination that does not involve

retaliation would actually hurt them [by creating] perverse

incentives” for employers to stop offering disability benefits.

268 F.3d at 458. That would hurt all employees, but especially

disabled employees. See id. Nor is it clear that petitioners’

view would advance the interests of individuals” with

disabilities as a group. Benefit integration seeks to benefit all

retirees by taking into account offsetting SSDI benefits, just as

respondent's plans take into account Socia] Security Old Age

benefits by terminating the supplemental early retirement

benefits at age 62 and one month. This approach allows for

CONCLUSION

The petition should be denied.

Respectfully submitted,

PAUL D. CLEMENT

Counsel of Record

JEFFREY S. BUCHOLTZ

MERRITT EF. MCALISTER

KING & SPALDING LLP

1700 Pennsylvania Ave., N.W.

Washington, D.C. 20006

202-737-0500

DAVID M. DAVIS

HARDY, LEWIS & PAGE, P.C.

401 South Old Woodward Ave.

Suite 400

Birmingham, MI 48009

248-645-0800

Attorneys for Respondent

May 29, 2009

greater benefits for all retirees -- including those with non-total

disabilities who do not qualify for SSDI benefits

APPENDIX

STATUTES INVOLVED

42 U.S.C. 12111(8) provides:

The term “qualified individual” means an individual

who, with or without reasonable accommodation, can

perform the essential functions of the employment

position that such individual holds or desires. For

the purposes of this subchapter, consideration shall

be given to the employer’s judgment as to what

functions of a job are essential, and if an employer

has prepared a_ written description before

advertising or interviewing applicants for the job,

this description shall be considered evidence of the

essential functions of the job.

Prior to January 1, 2009, 42 U.S.C. 12112(a)

provided:

General rule. — 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.

As of January 1, 2009, 42 U.S.C. 12112(a) provides:

General rule. — No covered entity shall discriminate

against a qualified individual on the basis of

disability 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(b) provides?!

(b) Construction -- As used in subsection (a) of this

section, the term “discriminate against a qualified

individual on the basis of disability” 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 (such relationship

includes a relationship with an employment or

referral agency, labor union, an_ organization

providing fringe benefits to an employee of the

' Prior to January I, 2009, this subsection began, “As used in

subsection (a), the term ‘discriminate’ includes

covered entity, or an organization providing training

and apprenticeship programs);

(3) utilizing standards, criteria, or methods of

administration —

(A) that have the effect of discrimination on the basis

of disability; or

(B) that perpetuate the discrimination of others who

are subject to common administrative control;

(4) excluding or otherwise denying equal jobs or

benefits to a qualified individual because of the

known disability of an individual with whom the

qualified individual is known to have a relationship

or association;

(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, unless such covered

entity can demonstrate that the accommodation

would impose an undue hardship on the operation of

the business of such covered entity: or

(B) denying employment opportunities to a job

applicant or employee who is an otherwise qualified

individual with a disability, if such denial is based

on the need of such covered entity to make

reasonable accommodation to the physical or mental

impairments of the employee or applicant:

(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; and

(7) failing to select and administer tests concerning

employment in the most effective manner to ensure

that, when such test is administered to a job

applicant or employee who has a disability that

impairs sensory, manual, or speaking skills, such

test results accurately reflect the skills, aptitude, or

whatever other factor of such applicant or employee

that such test purports to measure, rather than

reflecting the impaired sensory, manual, or speaking

skills of such employee or applicant (except where

such skills are the factors that the test purports to

measure).

Prior to January 1, 2009, 42 U.S.C. 12201 provided:

Construction.

(a) In general. -- Except as otherwise provided in this

Act, nothing 1n this Act shall be construed to apply a

lesser standard than the standards applied under

title V of the Rehabilitation Act of 1973 (29 U.S.C.

2 New subsections that are immaterial to this case were added

to § 12201, effective January 1. 2009 The subsections

reproduced herein remain unchanged

790 et seq.) or the regulations issued by Federal

agencies pursuant to such title.

(b) Relationship to other laws. -- Nothing in this Act

shall be construed to invalidate or lhmit the

remedies, rights, and procedures of any Federal law

or law of any State or political subdivision of any

State or jurisdiction that provides greater or equal

protection for the rights of individuals’ with

disabilities than are afforded by this Act. Nothing in

this Act shall be construed to preclude the

prohibition of, or the imposition of restrictions on,

smoking in places of employment covered by

subchapter I, in_ transportation covered by

subchapter II or III, or in places of public

accommodation covered by subchapter III.

shall not be construed to prohibit or restrict --

(1) an insurer, hospital or medical service company,

health maintenance organization, or any agent, or

entity that administers benefit plans, or similar

organizations from underwriting risks, classifying

risks, or administering such risks that are based on

or not inconsistent with State law; or

(2) a person or organization covered by this Act from

establishing, sponsoring, observing or administering

the terms of a bona fide benefit plan that are based

on underwriting risks, classifying risks, or

administering such risks that are based on or not

inconsistent with State law; or

(3) a person or organization covered by this Act from

establishing, sponsoring, observing or administering

the terms of a bona fide benefit plan that is not

subject to State laws that regulate insurance.

Paragraphs (1), (2), and (3) shall not be used as a

subterfuge to evade the purposes of subchapter I and

Il.

(d) Accommodations and services. -- Nothing in this

Act shall be construed to require an individual with

a disability to accept an accommodation, aid, service,

opportunity, or benefit which such _ individual

chooses not to accept.

42 U.S.C. 12203 provides:

Prohibition against Retaliation and Coercion.

(a) Retaliation. -- No person shall discriminate

against any individual because such individual has

opposed any act or practice made unlawful by this

Act or because such individual made a charge,

testified, assisted, or participated in any manner in

an investigation, proceeding, or hearing under this

Act.

(b) Interference, coercion, or intimidation. -- It shall

be unlawful to coerce, intimidate, threaten, or

interfere with any individual in the exercise or

enjoyment of, or on account of his or her having

exercised or enjoyed, or on account of his or her

having aided or encouraged any other individual in

the exercise or enjoyment of, any right granted or

protected by this Act.

procedures available under sections 107, 203, and

308 of this Act shall be available to aggrieved

persons for violations of subsections (a) and (b), with

respect to subchapter JI, subchapter II and

subchapter III, respectively.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.