42 F. Supp.2d 34 (1999) | Cited 0 times | D. Maine | March 3, 1999


Before the court are cross motions for summary judgment filedin an action brought by Plaintiff, Mr. Joseph Conners, againstDefendants, Maine Medical Center ("MMC") and UNUM LifeInsurance Company of America ("UNUM"). Mr. Conners filed afour-count Amended Complaint alleging that the Long TermDisability Plan ("LTD Plan") available to MMC employeesviolates the Americans With Disabilities Act, 42 U.S.C. § 12101et seq. ("ADA"), and the Maine Human Rights Act, 5 M.R.S.A. §4572 ("MHRA"), by providing a two-year cap on benefits formental disabilities, but not for physical disabilities, andthat Defendants' refusal to pay benefits beyond the two-yearperiod was a wrongful denial of disability benefits inviolation of the Employee Retirement Income Security Act,29 U.S.C. § 1001 et seq. ("ERISA").


MMC gives employees the option to participate in its LTDPlan, which is funded solely through employee contributions.UNUM acts as the disability claims administrator, meaning thatUNUM considers employees' claims for benefits under the LTDPlan, determines whether such claims are valid, and pays outbenefits for valid claims. Maine Medical Center Long TermDisability Plan Affidavit of Stella M. Fohlin ("FohlinAffidavit") (Docket No. 21), Attachment A at 27-28. If a claimis denied, employees may appeal to UNUM and UNUM shall make thefinal decisions regarding claims for benefits. Id.

Since 1988, MMC has maintained an LTD Plan funded by aninsurance policy that MMC purchased from UNUM, a company whichsells a variety of insurance products to employers and otherentities. Id. ¶ 4. The LTD Plan is open to all employees,disabled and nondisabled alike. Under the LTD Plan, benefitsfor total physical disability may be paid out until therecipient reaches age sixty-five. Id. For disabilities causedby mental or nervous conditions, benefits are limited totwenty-four months, with an additional ninety-day coverage ifthe recipient is hospitalized on the date benefits wouldotherwise expire. Id. at 19. The language of the LTD Plan wasapproved by the Maine Bureau of Insurance in 1995. Id. ¶ 7.While an employee of MMC, Mr. Conners enrolled in the LTD Plan.

Mr. Conners worked for MMC as an electrician beginning inOctober of 1978. Fohlin Affidavit, Attachment B at 13. As aresult of two tours in the Vietnam War, Mr. Conners suffersfrom post-traumaticstress disorder and severe depression and anxiety. Id. at 8,11, 17, 45-52, and 68-72. He was diagnosed as having thiscondition by a physician in October 1993. Id. at 8. As a resultof his illness, Mr. Conners has trouble concentrating, feelsanxious and distracted, and cannot function at work. Id. at 8,11, 17, 45-52. Mr. Conners' physician prescribed himmind-altering drugs for the depression and anxiety and advisedhim not to work while taking the medication. Id. at 8, 11, and17. Mr. Conners has been unable to work since October 27, 1993,and in April 25, 1994, Mr. Conners filed an application for LTDbenefits with UNUM. Id. at 5-13.

In May of 1994, UNUM approved Mr. Conners' application fordisability benefits. Id. at 21-22. Mr. Conners was notified onJune 27, 1994, in writing that he was subject to thetwenty-four month limitation on benefits because he sufferedfrom a disability caused by a psychiatric disorder. Id. at32-33. After additional correspondence not relevant here, Mr.Conners was reminded on January 24, 1996, that in order toreceive disability benefits beyond the two-year term, he wouldhave to submit evidence that he was physically disabled. Id. at89-80. Mr. Conners complained to UNUM that he had not beenaware of the two-year limitation on mental disability benefitswhen he enrolled in the LTD Plan and that he wished to submitevidence to show that he was physically disabled. Id. at 81-83.In addition, Mr. Conners complained to the Maine Bureau ofInsurance that the UNUM policy was discriminatory. Id. at84-87.

Despite Mr. Conners' attempt to show that the disability fromwhich he suffered was physical and his complaint that the LTDPlan was discriminatory, Mr. Conners was notified on April 17,1996, that his disability benefits would be terminated on April26, 1996. Id. at 111-12. A year later on April 24, 1997, Mr.Conners filed an appeal, id. at 117, which was denied by UNUMon May 30, 1997. Id. at 126-27. Again, UNUM explained that Mr.Conners was not eligible for benefits beyond twenty-four monthsbecause his disability was caused by a mental disorder. Id.;Plaintiff's Statement of Facts Not in Dispute (Docket No. 25),Exhibit 6. Mr. Conners appealed for a second time, contendingthat the distinction between mental and physical disabilitieswas against the law. Id. at 130; Plaintiff's Statement ofMaterial Facts Not in Dispute, Exhibit 13. UNUM denied Mr.Conners' request that it designate his disability as physical,for the final time, by letter on June 5, 1997. Id. at 131-32;Plaintiff's Reply Memorandum to Defendants' Joint Objection toCross Motion for Summary Judgment, (Docket No. 30), Exhibit A.

On April 25, 1997, MMC informed Mr. Conners that hisemployment had been terminated in April of 1996, according tothe LTD Plan policy that once LTD benefits are terminated andthe employee does not return to work, employment is suspended.Plaintiff's Reply Memorandum to Defendants' Joint Objection toCross Motion for Summary Judgment, Exhibit C. In this letterMMC explained that the termination of disability benefits and,thus, Mr. Conners' employment, meant that MMC no longercontributed to his pension. Id. Upon receiving this letter, Mr.Conners filed an appeal that was denied by a letter from theMaine Medical Center in December of 1997. Plaintiff's Statementof Facts Not in Dispute, Exhibit 2. In October of 1997, Mr.Conners filed a complaint with the Maine Human RightsCommission. Id., Exhibit 5 at 2. On April 15, 1998, the MaineHuman Rights Commission issued a report favorable to Mr.Conners and recommended that the Commission conclude thatunlawful discrimination against Mr. Conners had occurred. Id.,Exhibit 5. On July 20, 1998, Mr. Conners filed this action instate court. Defendants's Statement of Facts As to Which Thereis No Dispute (Docket No. 22), ¶ 1. UNUM and MMC removed theaction to this Court in July of 1998, and Mr. Conners filed anAmendedComplaint in this Court in October of 1998 (Docket No. 12).


Summary judgment is appropriate when the record shows thatthere is no genuine issue as to any material fact and that themoving party is entitled to summary judgment as a matter oflaw. Fed.R.Civ.P. 56(c). Once the moving party has come forwardidentifying those portions of "the pleadings, depositions,answers to interrogatories, and admissions on file, togetherwith affidavits, if any" which "it believes demonstrate theabsence of a genuine issue of material fact," the adverse partymay avoid summary judgment only by providing properly supportedevidence of disputed material facts that would require trial.Celotex Corp. v. Catrett, 477 U.S. 317, 317, 322, 106 S.Ct.2548, 2551-52, 91 L.Ed.2d 265 (1986).

The trial court must "view the entire record in the lightmost hospitable to the party opposing summary judgment,indulging all reasonable inferences in that party's favor."Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990). Thecourt will not, however, pay heed to "conclusory allegations,improbable inferences [or] unsupported speculation."Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1stCir. 1990). If no genuine issue of material fact emerges, thenthe motion for summary judgment may be granted. Because thefacts in this case are not in dispute, the Court's analysisfocuses on the legal questions raised by the parties in theircross motions for summary judgment.

A. The ADA.

In Count I of his Amended Complaint, Mr. Conners alleges thatthe LTD Plan violates Title I of the ADA because of thedisparity in benefits between mental and physical disabilities.Title I proscribes discrimination in the terms and conditionsof employment and mandates in relevant part:

(a) 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.

42 U.S.C. § 12112(a). In Count II of his Amended Complaint, Mr.Conners alleges that the LTD Plan violates Title III of theADA. Title III of the ADA provides:

(a) General rule

No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations by any person who owns, leases (or leases to), or operates a place of public accommodation.

42 U.S.C. § 12182(a). Mr. Conners claims that the Defendantsviolated Title I and Title III of the ADA because the disparityin the duration of the benefit program for a mental versus aphysical disability constitutes discrimination against him onthe basis of his mental disability. Defendants raise severalobjections to Mr. Conners' claims including that Mr. Connersdoes not have standing to assert his claim, that his claims arenot timely, and that disability plans that provide fewerbenefits for a mental disability than for a physical disabilityare not unlawful under the ADA.

1. Eligibility to Sue Under Title I: Disabled Former Employee's Ability to Sue as a Qualified Individual with a Disability.

Under the ADA, an employer may not discriminate against a"qualified individual with a disability" on the basis of thatdisability in the "terms, conditions, and privileges ofemployment." 42 U.S.C. § 12112(a). Under the ADA, "terms,conditions, and privileges," in employment include "fringebenefits" made available to employees under a contractualarrangementbetween an employer and an organization providing suchbenefits. See 42 U.S.C. § 12112(b); 29 C.F.R. § 1630.4 ("fringebenefits available by virtue of employment, whether or notadministered by the [employer]"). Pursuant to this language,the EEOC has advocated in favor of the application of ADA TitleI protection to employer-provided disability benefits. See EEOCv. CNA Ins. Cos., 96 F.3d 1039, 1043 (7th Cir. 1996). Othercourts have likewise determined that benefits offered postemployment such as pension and disability benefits are "fringebenefits" under the ADA and thus, an employer may notdiscrimination based on disability in regard to disabilitybenefits under Title I. See Ford v. Schering-Plough Corp.,145 F.3d 601, 604-05 (3d Cir. 1998), cert. denied, ___ U.S. ___,119 S.Ct. 850, 142 L.Ed.2d 704 (1999); Castellano v. The Cityof New York, 142 F.3d 58, 67 (2d Cir. 1998); Lewis v. AetnaLife Ins. Co., 982 F. Supp. 1158, 1160-61 (E.D.Va. 1997).Accordingly, this Court finds that disability benefits providedto employees qualify as both a privilege of employment and afringe benefit available by virtue of employment within themeaning of 42 U.S.C. § 12112(a). Hence, Title I of the ADAprevents discrimination based on disability in the provision ofdisability benefits.

Having determined that Title I of the ADA proscribesdiscrimination in disability benefits, the Court must stillresolve the threshold issue of whether Mr. Conners is eligibleto sue under Title I of the ADA. Although Defendants presenttheir argument relating to this issue as a challenge to Mr.Conners' standing, the question of standing is not at issue inthis case. Mr. Conners has been "injured in fact" by the denialof his benefits, which is "an injury to himself that is likelyto be redressed by a favorable decision." See Simon v. EasternKentucky Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917,48 L.Ed.2d 450 (1976). In addition, Mr. Conners' injury isarguably in the zone of interests regulated by the ADA. See 39 n. 19, 96 S.Ct. at 1925 n. 9. Rather, the challengepresented by Defendants requires the Court to ascertain Mr.Conners' eligibility under the ADA's requirements to file suit.See Ford, 145 F.3d at 605.

Title I of the ADA provides protection against unlawfuldiscrimination only to a "qualified individual with adisability." A "qualified individual with a disability" isdefined by the statute as follows:

The term "qualified individual with a disability" means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. 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.

42 U.S.C. § 12111(8). Accordingly, an individual eligible tosue under the ADA must be disabled, but still able to performthe essential functions of his or her position with or withouta reasonable accommodation by the employer. There is no disputein this case, however, that Mr. Conners is currently unable towork even with a reasonable accommodation. In fact, Mr.Conners, and any other LTD Plan disability benefit claimants,would not be qualified for disability benefits were he able towork with or without a reasonable accommodation.

Defendants contend that Mr. Conners is clearly ineligible tosue under Title I because, by virtue of the fact that he iscurrently totally disabled and unable to work even with areasonable accommodation, he does not fit the criteria of a"qualified individual with a disability." They urge the Courtto endorse the approach adopted by two federal courts of appealin the context of challenges to alleged discrimination in theprovision of fringe benefits.See Gonzales v. Garner Food Services, Inc., 89 F.3d 1523,1526-28 (11th Cir. 1996), request for reh'g denied, Thomas v.Garner Food Services, Inc., 104 F.3d 373 (11th Cir. 1996),cert. denied, Wood v. Garner Food Services, Inc.,520 U.S. 1229, 117 S.Ct. 1822, 137 L.Ed.2d 1030 (1997); CNA InsuranceCos., 96 F.3d at 1042-45; see also Parker v. Metropolitan LifeIns. Co., 99 F.3d 181, 185-87 (6th Cir. 1996), reh'g en bancgranted, judgment vacated, 107 F.3d 359 (6th Cir. 1997), reh'gen banc, 121 F.3d 1006 (6th Cir. 1997), cert. denied, ___ U.S.___, 118 S.Ct. 871, 139 L.Ed.2d 768 (1998); Morton v. GTE NorthInc., 922 F. Supp. 1169, 1178-84 (N.D.Tex. 1996). These courtsdetermined that disabled ex-employees who can no longer workwith or without reasonable accommodation to perform theessential functions of their former employment, are not"qualified individuals with a disability" under Title I of theADA.

A court's proper first step in interpreting a statute is todetermine whether the language at issue has a plain andunambiguous meaning with regard to the particular disputepresented by the facts of the case. See Robinson v. Shell OilCo., 519 U.S. 337, 340, 117 S.Ct. 843, 846, 136 L.Ed.2d 808(1997). Having determined that, under the ADA, an employer maynot discriminate in its provision of disability benefits, theCourt finds that the particular facts of Mr. Conners' claimilluminate an internal inconsistency in the ADA between itsdefinition of a "qualified individual with a disability" andthe rights the statute confers. The disability benefits soughtby Mr. Conners are meaningful only in the post-employmentcontext: Mr. Conners is eligible for disability benefits underthe LTD Plan only if he is unable to perform work functions.Yet, to be a "qualified individual with a disability" eligibleto sue under the ADA, Mr. Conners must be able to perform theessential functions of his position with or without reasonableaccommodation. Thus, Mr. Conners' claim reveals a potentialdisjunction between the ADA's definition of a "qualifiedindividual with a disability" and the rights that the ADAconfers. Title I prohibits discrimination by employersregarding the "terms, conditions, and privileges" inemployment. 42 U.S.C. § 12112(a). However, if "terms,conditions, and privileges" include disability benefits, inorder to effectuate the right against discrimination indisability benefits, Title I of the ADA must permit suits byindividuals other than those who are currently able to workwith or without reasonable accommodations. Without a broaderreading of who qualifies as a "qualified individual with adisability," Title I contains an internal contradiction anddoes not protect the right to be free of discrimination inpost-employment fringe benefits.

The contradiction between the explicit rights created byTitle I of the ADA and the apparent eligibility standards forfiling a suit under Title I requires the Court to view theeligibility requirements under Title I as ambiguous rather thanas having "an unassailable plain meaning." Ford, 145 F.3d at606. "The locus of the ambiguity is whether the ADA contains atemporal qualifier for the term `qualified individual with adisability[.]'" Id. In order to interpret ambiguous language,the Court must first consider "the language itself, thespecific context in which that language is used, and thebroader context of the statute as a whole." Id. (citingRobinson, 519 U.S. at 340, 117 S.Ct. at 846 (citing Estate ofCowart v. Nicklos Drilling Co., 505 U.S. 469, 477, 112 S.Ct.2589, 2594-95, 120 L.Ed.2d 379 (1992))).

An examination of the legislative purpose of the "qualifiedindividual with a disability" requirement reveals thatCongress's purpose for requiring that disabled persons becapable of performing the essential functions of their jobs isnot thwarted by permitting disabled persons no longer employedfrom suing their prior employer for discrimination inpost-employment fringe benefits. In Castellano v. City of NewYork, 142 F.3d 58 (2d Cir. 1998),the Court of Appeals for the Second Circuit held that a retiredemployee, no longer able to perform the essential functions ofhis or her job, was a "qualified individual with a disability"for purposes of suing because of discrimination based on adisability in an employer's pension plan. That Court stated thepurpose of the underlying inclusion of the essential functionsrequirement within the definition of "qualified individuals,"as the following:

Congress has stated its purpose to be "to ensure that employers can continue to require that all applicants and employees, including those with disabilities, are able to perform the essential, i.e., the non-marginal functions of the job in question." H.R.Rep. No. 101-485(II), at 55 (1990), reprinted in 1990 U.S.C.C.A.N. 337; S.Rep. No. 101-116, reprinted in Arnold & Porter Legislative History P.L. 101-336, Americans with Disabilities Act of 1989, at 26 (1989). Congress used the phrase "qualified individual with a disability" to "reaffirm that [the ADA] does not undermine an employer's ability to choose and maintain qualified workers'," H.R.Rep. No. 101-485(II) at 55 (1990), reprinted in 1990 U.S.C.C.A.N. 337, and to allow employers to "select the most qualified applicant available" rather than be obliged to "prefer applicants with disabilities over other applicants on the basis of disability." H.R.Rep. No. 101-485(II), at 56 (1990), reprinted in 1990 U.S.C.C.A.N. 338; S.Rep. No. 101-116, reprinted in Arnold & Porter Legislative History P.L. 101-336, Americans with Disabilities Act of 1989, at 26-27 (1989). The definition "permits employers to select the most qualified applicant available rather than be obliged to prefer applicants with disabilities over other applicants on the basis of disability." H.R.Rep. No. 101-485(II), at 56 (1990), reprinted in 1990 U.S.C.C.A.N. 338; S.Rep. No. 101-116, reprinted in Arnold & Porter Legislative History P.L. 101-136, Americans with Disabilities Act of 1989, at 26-27 (1989)

Castellano, 142 F.3d at 67. It is clear that Congress wasconcerned with employers being forced to hire, fire, or retainunqualified, disabled employees. Where the allegeddiscrimination relates to the provision of post-employmentfringe benefits, however, Congress's express concern is nolonger implicated. Furthermore, individuals, such as Mr.Conners, who become disabled during their term of employmentare entitled to participate in the LTD Plan when they are ableto perform the essential functions of their position. BecauseMr. Conners was qualified (i.e., performed the essentialfunctions of his job) while employed and on that basis becameentitled to post-employment benefits, including disabilitybenefits if eligible, the purpose of the essential functionsrequirement was served and is not circumvented if it is notrequired in the context of suing for discrimination indisability benefits.

"An interpretation that would prevent former employees whoare no longer `qualified individuals' from bringing claims ofdiscrimination in tile provision of post-employment fringebenefits would also undermine the plain purpose of sections12112(a) and (b)(2) of the ADA: to provide comprehensiveprotection from discrimination in the provision of fringebenefits." Id. at 68. Title I of the ADA seeks to prohibitdisability discrimination in all aspects of the employmentrelationship. See 42 U.S.C. § 12101(a), (b)(1) ("It is thepurpose of this chapter — to provide a clear and comprehensivenational mandate for the elimination of discrimination againstindividuals with disabilities."). To this end, the ADAspecifically proscribes discrimination in fringe benefits ofemployment. As the Court of Appeals for the Second Circuitpointed out, a number of fringe benefits including pensions,health and life insurance, and disability benefits arepost-employment benefits. Under Defendants' reasoning, anindividual receiving post-employment fringe benefits would beunable to sue an employer discriminating against him or her inits provision of these benefitsbased on disability. Such a reading would permit employers todiscriminate freely against individuals who were qualifiedduring their employment to receive disability benefits once theindividuals became eligible for the benefits. "So enormous agap in the protection afforded by Title I would be clearly atodds with the expressed purpose of the ADA to `address themajor areas of discrimination faced day-to-day by people withdisabilities,' 42 U.S.C. § 12101(b), and `to bring individualswith disabilities into the economic and social mainstream ofAmerican life . . . in a clear, balanced, and reasonablemanner.'." Lewis, 982 F. Supp. at 1163 (citing H.R.Rep. No. 485,101st Cong.Pt. 2 at 99 (1990)).

A recent decision tendered by the United States Supreme Courtin Robinson v. Shell Oil, 519 U.S. 337, 117 S.Ct. 843, 136L.Ed.2d 808 (1997), interpreting the term "employee" in theantiretaliation provision of the ADA's sibling statute TitleVII, lends support for interpreting Title I of the ADA topermit suits by disabled individuals against their formeremployers concerning disability benefits. See Ford, 145 F.3d at606 ("Cases interpreting Title VII are relevant to our analysisof the ADA because the ADA is essentially a sibling statute ofTitle VII. Indeed the ADA's accompanying House Report statesthat the purpose of the ADA is `to provide civil rightsprotections for persons with disabilities that are parallel tothose available to minorities and women.'") (citing H.R.Rep.No. 101-485, pt. 3, at 48 (1990), reprinted in 1990U.S.C.C.A.N. 267, 471). In Robinson, an employer provided anegative reference allegedly in retaliation for the formeremployee's filing of an EEOC charge against it. See 519 U.S. at338-40, 117 S.Ct. at 845-46. The plaintiff former employee suedunder section 704(a) of Title VII and the Supreme Courtanalyzed whether former employees are allowed to bring suitsagainst their previous employers under Title VII forpost-termination retaliation.

Section 704(a) of Title VII, prohibits an employer fromdiscriminating against any of its employees or applicants foremployment. See 42 U.S.C. § 2000e-3(a). In Robinson, theSupreme Court found that the undefined term "employees," asused in section 704(a), was ambiguous as to whether it excludesformer employees or encompasses former employees. See id. at846-48. Resolving the ambiguity, the Supreme Court held thatthe term employees as used in section 704(a) of Title VII,protects former employees as well as current employees eventhough "former employees" are nowhere mentioned in the text.Id. at 347, 117 S.Ct. at 849. The Supreme Court approved theargument presented by the EEOC that a narrow reading of theterm "employees" to exclude suits by former employees forretaliatory acts after employment,

"would vitiate much of the protection afforded by section 704(a) . . . [and] would undermine the effectiveness of Title VII by allowing the threat of post-employment retaliation to deter victims of discrimination from complaining to the EEOC, and would provide a perverse incentive for employers to fire employees who might bring Title VII claims."

Id. at 344, 117 S.Ct. at 848. The reasoning of the SupremeCourt in Robinson applies with equal force to the instant case.As discussed, limiting the temporal reach of "qualifiedindividuals with a disability" to exclude former employeeswould undermine the purpose of preventing disabilitydiscrimination in the provision of fringe benefits and vitiatethe right of individuals to be free from such discrimination.

The foregoing discussion demonstrates that Defendants'position is illogical. Were the Court to adopt the Defendants'definition of a "qualified individual with a disability," adisabled person in need of disability benefits because he orshe is currently unable to work would be unable to sue his orher prior employer for discrimination in regard to thesebenefits underTitle I of the ADA. Such a construction of the statute wouldresult in the situation that just when an employee becomeseligible for disability benefits offered by his or heremployer, he or she is at the same moment ineligible to asserthis or her right to receive those benefits free ofdiscrimination based on his or her disability. Disabilitybenefits would be effectively immune from the proscriptionsagainst discrimination in employment benefits under the ADA. Asthe Court of Appeals for the Third Circuit explained inFord v. Schering-Plough Co., "[o]nce an individual becomesdisabled and thus eligible for disability benefits, thatindividual loses the ability to sue under a strict reading ofTitle I's definition of `qualified individual with adisability' because that individual can no longer work with orwithout a reasonable accommodation." 145 F.3d at 606.Therefore, the narrow reading of "qualified individual with adisability" proposed by Defendants would permit employers todiscriminate in regard to fringe benefits that are provided inthe post-employment context and effectively render ADA'sprotections void.

The Court determines that the decisions by the Seventh andEleventh Circuits in CNA and Gonzales are not persuasive. Ineach case, plaintiff-employees obtained insurance plans throughtheir employers that provided benefits that could be accessedafter employment. See CNA, 96 F.3d at 1041 (disability benefitspolicy); Gonzales, 89 F.3d at 1524 (health insurance policy).In CNA, the Court of Appeals for the Seventh Circuit rejectedthe very same argument presented in this case by noting that"nothing happened that discriminated against [plaintiff] duringthe time she was working at the CNA. The only thing thatoccurred was CNA's 1985 decision to reduce the long-termbenefits available to all of its employees for mental healthproblems." 96 F.3d at 1045. The Seventh Circuit Court ofAppeals conflated two issues, the first being whether theindividual could sue regarding fringe benefits while completelydisabled, and the second being whether the individual's suithad merit and was based upon actual discrimination. Ultimately,the court declined to find the individual eligible to suebecause her suit lacked merit.

In Gonzales, the Court of Appeals for the Eleventh Circuitheld that the meaning of a "qualified individual with adisability" unambiguously did not include disabled employeesunable to perform the essential functions of their jobs. 89F.3d at 1530-31. However, the court concentrated on what itbelieved to be the plain meaning of the ADA without addressingthe possibility that the disparity between the rights createdby the ADA and the apparent legal remedy fashioned by the ADAcreates an ambiguity in the eligibility requirements forobtaining a remedy. See id. at 1526-29. Because the Court findsthat an ambiguity is exposed by a disabled claimant assertinghis or her rights against discrimination in fringe benefits,the Court disagrees with the analysis presented by the Court ofAppeals for the Eleventh Circuit. In addition, the Court notesthat these decisions were handed down before the Supreme Courtissued its decision in Robinson.

The Court of Appeals for the First Circuit has not resolvednor addressed whether there exists an ambiguity between therequirements for suit under the ADA and the rights the statuteconfers. In August v. Offices Unlimited, Inc., 981 F.2d 576(1st Cir. 1992), however, the Court of Appeals for the FirstCircuit examined whether an employee who was unable to workbecause of severe depression was not a "qualified handicappedperson" within the meaning of the Massachusetts handicappeddiscrimination statute, M.G.L.A. c. 151B § 4(16). TheMassachusetts statute contains language similar to the ADA andstates that it is an unlawful practice "for an employer,personally or through an agent, to dismiss from employment orrefuse to hire, rehire or advance in employment or otherwisediscriminate against,because of his handicap, any person alleging to be a qualifiedhandicapped person. . . ." Mass.Gen.L. ch. 151B § 4(16). A"qualified handicapped person" under the statute is a person"who is capable of performing the essential functions of aparticular job, or who would be capable of performing theessential functions of a particular job with reasonableaccommodation to his handicap." Mass.Gen.L. ch. 151B § 1(16).The court found that the plaintiff was incapable of performingthe essential functions of his position with or withoutreasonable accommodation to his handicap. See August, 981 F.2dat 580-82.

Relying on the United States Court of Appeals for the EighthCircuit's decision in Beauford v. Father Flanagan's Boys' Home,831 F.2d 768 (8th Cir. 1987), interpreting the "otherwisequalified handicapped individual" requirement as renderingtotally disabled employees ineligible to sue under the federalRehabilitation Act, the court concluded that, because theplaintiff was totally disabled at all relevant times includingthe day of the alleged discrimination, the plaintiff could notestablish that he was a "qualified handicapped person" underthe Massachusetts statute. See August, 981 F.2d at 584.

Although the decision in August provides potential supportfor a decision by the Court of Appeals for the First Circuitdisagreeing with the Court's conclusion here — that disabledindividuals who are no longer able to perform the essentialfunctions of employment are eligible to sue under the ADA —the Court is not dissuaded from its position. The decisiontendered by the Court of Appeals in August was issued in 1992,before the Supreme Court's decision in Robinson. Furthermore,the August decision involved the interpretation of aMassachusetts state anti-discrimination statute rather than theADA itself. In addition, the court considered only the plainlanguage of the Massachusetts statute and did not discuss itslegislative purpose. See id. at 580. Thus, that court did notconsider whether an ambiguity was created regarding entitlementto sue under the statute by the facts presented in the case inlight of the broad purpose of the statute in preventingdiscrimination in fringe benefits. Accordingly, the Court findsthat, although relevant, the decision by the Court of Appealsfor the First Circuit in August is not controlling here.

To conclude, the factual predicate of Mr. Conners' claimunder Title I of the ADA illuminates an internal inconsistencyin the statute regarding a plaintiff's eligibility to sue fordiscrimination in disability benefits. With all due respect,this Court declines to follow the Seventh and Eleventh Circuitsand concurs with the decisions tendered by the Second and ThirdCircuits. The Court finds that the term "qualified individualwith a disability" should be interpreted to include individualsformerly employed and currently completely disabled so as to beeligible for the disability benefits offered by his or herformer employer. Thus, former employees currently totallydisabled are "qualified individuals with a disability" and maysue under the ADA for discrimination in disability benefitsthat they receive post-employment. Accordingly, Mr. Conners iseligible to sue under Title I of the ADA.

2. Title III Claim: The UNUM Plan as a Good or Service Provided by Place of Public Accommodation.

Defendants also contend that Mr. Conners cannot maintain aclaim under Title III of the ADA against MMC and UNUM becauseTitle III does not apply to benefits or services that anindividual receives from his or her employer by virtue of hisor her employment. As mentioned, prohibited discriminationunder Title III includes the denial, on the basis ofdisability, of the opportunity to benefit from the goods,services, privileges, advantages, or accommodations of anentity. See 42 U.S.C. § 12182(b); 28 C.F.R. § 36.202. Thus,Title III specifically prohibits tile provision of unequal orseparate benefitsby a place of public accommodation. Citing law from othercircuits, Defendants ask the Court to interpret the term"public accommodation" as being limited to actual physicalstructures with defined physical boundaries that a personphysically enters for the purpose of utilizing the facilitiesor obtaining services therein. Furthermore, they contend thatTitle III narrowly proscribes the denial of equal physicalaccess to persons on the basis of their disability and does notapply to the substance of the goods or services provided by thepublic accommodations. Applying this definition, Defendantscontend that UNUM and MMC are not public accommodations underTitle III because Mr. Conners did not walk into their physicalstructures and purchase the LTD Plan.

Defendants rely primarily on decisions published by theCourts of Appeal for the Third and Sixth Circuits' inFord and Parker, wherein the courts held that, although aninsurance office is a public accommodation as expressly setforth in section 12181(7) of the ADA, where a plaintiff hasaccessed a benefit plan provided by her private employer andissued by an insurance company, the benefit plan is not a goodoffered by a place of public accommodation. Ford, 145 F.3d at612-14; Parker, 121 F.3d at 1010-15; see also Erwin v.Northwestern Mutual Life, 999 F. Supp. 1227, 1230-34 (S.D.Ind.1998).1 However, in regard to this issue the Court can relyon controlling law from the Court of Appeals for the FirstCircuit with which the courts in Ford and Parker clearlydisagree. See Ford, 145 F.3d at 613-14; Parker, 121F.3d at 1012-13. In Carparts Distribution Center, Inc. v.Automotive Wholesaler's Assoc. of New England, Inc., 37 F.3d 12(1st Cir. 1994), the First Circuit Court of Appeals held that adefendant who provides medical benefit plans could beconsidered a public accommodation under Title III. Id. at19-20. The question of whether Title III intended only toprotect access to services, or whether Congress meant, inaddition, to proscribe discriminatory products and servicesoffered by public accommodations, was left undecided inCarparts. Nothing in the legislative history precludesextending the statute to the substance of the good or service.Id. at 20. This Court agrees, as another district court fromthis circuit has, that under the plain language of Title III,the Act would extend to the substance or contents of aninsurance policy. See Doukas v. Metropolitan Life Ins. Co.,950 F. Supp. 422, 425-27 (D.N.H. 1996) (Devine, D.J.). UNUM is apublic accommodation, and its insurance policies are a good orservice under Title III. Because the court of appeals for thiscircuit has held that Title III applies to discrimination inemployee benefit plans and this Court finds that Title III'sproscription applies to the substance of, rather than merelythe access to, employee benefit plans, Mr. Conners may pursue aclaim under Title III of the ADA.

3. Statute of Limitations: The Timeliness of Plaintiff's ADA Claims.

The ADA applies the limitations period and exhaustionrequirements set forth underTitle VII of the Civil Rights Act of 1964 to claims broughtunder Title I. See 42 U.S.C. § 12117(a) (adopting for Title Iof the ADA enforcement procedures available under Title VII ofthe Civil Rights Act of 1964). However, the ADA does notspecify a statute of limitations for claims filed under TitleIII. Therefore, the issue of whether the claims under Title Iand Title III are timely must be considered separately by theCourt.

a. Title I.

There are several requirements that a plaintiff must meetprior to filing a federal civil rights action under Title I ofthe ADA in federal court. A plaintiff alleging a violation ofTitle I in Maine must file a charge of discrimination with theEEOC within 300 days of the accrual of his cause of action.See 42 U.S.C. § 2000e-5(e)(1); 42 U.S.C. § 12117(a).2 "Thelimitations periods, while guaranteeing the protection of thecivil rights laws to those who promptly assert their rights,also protect employers from the burden of defending claimsarising from employment decisions that are long past." DelawareState College v. Ricks, 449 U.S. 250, 256-57, 101 S.Ct. 498,503, 66 L.Ed.2d 431 (1980). Mr. Conners filed hisadministrative charge of discrimination challenging theapplication of the two-year limit on his disability benefitsunder the LTD Plan on October 24, 1997. Plaintiff's Statementof Facts Not In Dispute, Exhibit 5 at 2.

The 300-day administrative filing requirement for aplaintiff's ADA claim begins to run only after a plaintiff'sclaim has accrued. Here, we have a directive from Congress thattime limitations in civil rights actions commence with the dateof the "alleged unlawful employment practice." See42 U.S.C. § 2000e-5(e)(1). Determining the timeliness of Mr. Conners'administrative charge requires the Court to first identifyprecisely the unlawful discrimination of which he complains. Inhis motion for summary judgment, Mr. Conners argues thatdiscrimination not only motivated UNUM and MMC from limitinghis disability benefits, but also in terminating his employmenton April 26, 1996, which resulted in MMC no longer contributingto Mr. Conners' pension. Plaintiff's Cross-Motion for SummaryJudgment on Liability and Incorporated Memorandum withArguments Opposing Defendants' Motion for Summary Judgment(Docket No. 24) at 10-11. In effect, he argues that the day ofthe alleged unlawful employment action and, thus, the day thatthe 300-day statute of limitations commences, was the day thathe was notified of the termination of his employment, April 25,1997, and, hence, his charge was timely.3 Id.; seePlaintiff's Reply Memorandum to Defendants' Join Objection toCross Motion for Summary Judgment, Exhibit C. This argumentcannot be squared with the allegations of Mr. Conners' AmendedComplaint, which clearly allege that the Defendantsdiscriminated when they applied a limitation on Mr. Conners'disability benefits because his disability was caused by amental, rather than a physical, disorder. Amended Complaint ¶¶20, 24.

In this case, Mr. Conners challenges the LTD Plan'sdifferentiation between mental and physical disabilities, notMMC's decision to terminate his employment or to stopcontributing to his pension plan. The decision to limit Mr.Conners' benefits is the decision that is relevant to Mr.Conners' cause of action. The fact that his employment wasterminated pursuant to a company policy that a person who nolonger receives disability benefits is no longer an employee isan inevitable, albeit delayed,consequence of the original determination that the two-yearlimit applied to Mr. Conners. See Ricks, 449 U.S. at 257-58,101 S.Ct. at 503-04. In regard to his ADA claims, Mr. Connersalleges in his Amended Complaint, the following:

The Defendants further discriminated against Mr. Conners and other similarly situated individuals with what are termed "mental" or "nervous" disabilities by terminating their long-term disability benefits after 24 months precisely because of that characterization of their disabilities while allowing individuals with so-called "physical disabilities" to receive long-term disability benefits to age 65. In addition, at the time UNUM's (sic) ceased making long-term disability insurance payments to Joseph Conners, Maine Medical Center also ceased contributing to his vested pension benefits plan by characterizing his disability as mental rather than physical thereby discriminating against him in violation of the ADA.

Amended Complaint, ¶ 20. It is clear from the AmendedComplaint, that Mr. Conners ultimately complains of UNUM andMMC's decision to classify his disability as mental and limithis benefits according to an allegedly discriminatorydisability benefits plan. A thorough reading of the recorddemonstrates that the subsequent termination of Mr. Conners'employment and MMC's contributions to his pension occurredpursuant to the company policy that once disability benefitsare terminated, employment is terminated. Mr. Conners does notallege that the company policy according to which these laterdecisions were made is itself discriminatory. Hence, Mr.Conners has not alleged any additional discriminatory acts inaddition to the original decision to cap Mr. Conners'disability benefits.

The Supreme Court and the Court of Appeals for the FirstCircuit have held that the date of the original allegedlydiscriminatory decision, not the date upon which subsequentconsequences of the original determination occurred, is theallegedly unlawful decision from which the statute oflimitations runs. "The emphasis is not upon the effects ofearlier . . . decisions; rather it is [upon] whether anypresent violation exists." Id. at 258, 101 S.Ct. at 504. InRicks, a denial of tenure case, the Supreme Court held that"the only alleged discrimination occurred — and the filinglimitations period therefore commenced — at the time thetenure decision was made and communicated to Ricks." 449 258, 101 S.Ct. at 504. Likewise, in Chardon v. Fernandez, a42 U.S.C. § 1983 case involving the termination of employmentof public employees, the Court similarly stated that "theoperative decision was made — and notice given — in advanceof a designated date on which employment terminated."454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981). The key question in bothcases was whether the relevant date for purposes of the statuteof limitations is when "the consequences became painful,"Chardon, 454 U.S. at 8, 102 S.Ct. at 29, or is the date thedecision was made and the employee was notified. The SupremeCourt and the Court of Appeals for the First Circuit insubsequent decisions determined that the time the originalallegedly discriminatory decision was made is relevant forstatute of limitations purposes. See American Airlines, Inc. v.Cardoza-Rodriguez, 133 F.3d 111, 123 (1st Cir. 1998) (holdingthat statute of limitations for Title VII claim began to runwhen employees elected to retire early rather than whenemployment terminated); Morris v. Gov't Dev. Bank of PuertoRico, 27 F.3d 746, 749 (1st Cir. 1994) (holding that "the pointat which the consequences of the act become hardest to bear —which may or may not coincide with the occurrence of the actitself — has no relevance for purposes of framing thelimitations period."); Kassaye v. Bryant College, 999 F.2d 603,606 (1st Cir. 1993) (holding that "the mere effects orconsequences of past discrimination, as opposed toindependently actionable violations of Title VII, areinsufficient to serve as the triggerof the limitations period."). Here, the Amended Complaint andthe record demonstrate that the only allegedly unlawful actiontaken by MMC and UNUM was the original decision to apply atwo-year limitation to Mr. Conners' disability benefits becausehe suffered from a mental, rather than a physical, disability.Although this decision set into motion a chain of events makingthis original determination harder to bear, the subsequenttermination of employment and pension contributions were mereeffects of the earlier decision and are of no consequence tothe statute of limitations inquiry. Thus, the unlawfuldiscrimination of which Mr. Conners' complains is the decisionto limit his disability benefits to two years because hesuffers from a mental disability.

The next task is to ascertain the date upon which Mr.Conners' claim that the LTD Plan is discriminatory accrued.Defendants contend that Mr. Conner's claim accrued when hefirst enrolled in a disability benefit plan that allegedlydiscriminates against him under the ADA. The Defendants reasonthat once a claimant is enrolled in a purportedlydiscriminatory plan, the claimant's cause of action has accruedwhether or not the claimant is eligible for the benefits onthat date. According to Defendants' logic, because the LTD Planwas adopted before the ADA was enacted into law and went intoeffect, Mr. Conner's claim accrued on the date the ADA wentinto effect, July 26, 1992, because on that date Mr. Connerswas enrolled in a disability benefit plan that allegedlydiscriminated against him under existing law. Defendants'argument is not on target. Although Mr. Conners may have been avictim of discrimination when he received the LTD Plan and theADA had been enacted into law proscribing discriminationagainst individuals based on a disability, Mr. Conners'discrimination claim was not ripe for adjudication on that dateand, therefore, did not accrue on that date.

Defendants alternatively contend that the date of theallegedly discriminatory practice was on June 27, 1994, whenMr. Conners was made aware that an allegedly discriminatoryaction had been taken against him. In its letter of June 27,1994, not before, UNUM explicitly made it clear that it hadclassified Mr. Conners' disability as "mental" and, therefore,had designated him as subject to the two-year limitation on hisbenefits. See Fohlin Affidavit, Attachment B at 31-32. Beforethat time, Mr. Conners' status under the LTD Plan was unclear,and a claim for wrongful denial of such benefits would not havebeen ripe.4 For example, UNUM's letter to Mr. Connersinforming him that he was eligible for disability benefits,mailed to Mr. Conners on May 5, 1994, did not clarify that hisdisability had been classified as mental. Id. at 22-23.Neither that letter, nor other letters Mr. Conners receivedconcerning his disability benefits prior to the letter of June27, 1994, indicated that Mr. Conners' disability had beenclassified as mental under the LTD Plan. Therefore, the Courtagrees with Defendants that the second date they propose, June27, 1994, when Defendants notified Mr. Conners that hisdisability had been classified as mental and explained that thetwo-year limitation applied to him, is the date upon which thealleged discriminatory action occurred.

Mr. Conners argues that June 27, 1994, is not the date uponwhich his claim accrued because his benefits were notdefinitely and finally denied until he had exhausted hisgrievance procedures with the company. Mr. Conners suggeststhat his claim accrued when he had thoroughly exhausted theappeals process regarding his disability benefits which,according to the record, ended on June 5, 1997, when MMCfinally denied Mr. Conner's appeals. Plaintiff's Statement ofMaterial Facts Not in Dispute, Exhibit 11.5 It is true thatMr. Conners consistently appealed MMC and UNUM's decision afterJanuary of 1996. Despite Mr. Conners' diligent attempt tochallenge the denial of his benefits and to pursue his rightsunder the LTD Plan, the fact remains that it was clearly andunequivocally obvious that Mr. Conners would be subjected toinferior coverage on the basis of his disability on June 27,1994.6 The Supreme Court has held that "the pendency of agrievance, or some other method of collateral review of anemployment decision, does not toll the running of thelimitations period." Ricks, 449 U.S. at 261, 101 S.Ct. at 506(citing Electrical Workers v. Robbins & Myers, Inc.,429 U.S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976)). Despite theexistence of a grievance procedure, Mr. Conners' pursuit ofthose remedies, and UNUM and MMC's assurances that Mr. Conners'appeals would be seriously considered, the rule remains thatlimitations periods normally commence when the allegedlyunlawful employment practice giving rise to the cause of actionthat is the subject of the complaint occurs. In this case, thatdate is June 27, 1994, when Defendants clearly communicated toMr. Conners that they had designated his disability as mentaland subjected him to the two-year limitation on mentaldisabilities.

Therefore, the 300-day limitations periodcommenced to run on June 27, 1994.7 Because Mr. Connersfiled his administrative charge on October 24, 1997 — morethan three years after this date, his administrative charge wasnot timely. Mr. Conners has not argued that there wasinterference or involvement of the Defendants in causing anyfiling delay, and nothing in the record points to any suchcircumstances. No other basis exists in the record for invokingequitable tolling principles. Accordingly, Mr. Conners' claimunder Title I is barred because he failed to file a timelyadministrative charge. Summary judgment will be entered forDefendants on Count I.

b. Title III.

The ADA does not contain an express statute of limitationsfor Title III claims. Where a federal statute does not containan express limitations period, federal courts must adopt themost analogous state statute of limitations. See Wilson v.Garcia, 471 U.S. 261, 266, 268, 105 S.Ct. 1938, 85 L.Ed.2d 254(1985). No court has determined the appropriate limitationsperiod under Maine law to apply to Title III ADA claims. Toaccomplish this task, the court "must characterize the essenceof the claim in the pending case, and decide which statestatute provides the most appropriate limiting principle." 268, 105 S.Ct. at 1942-43. The Court finds that a claim fordiscrimination brought under the ADA is best characterized as aclaim for personal injury. Maine has a six-year statute oflimitations for all civil actions, 14 M.R.S.A. § 752.Defendants urge the Court to adopt the two-year statute oflimitations that applies to all claims brought under the MHRAfor ADA claims. 5 M.R.S.A. § 4613(2)(C). The MHRA proscribesdiscrimination based on a physical or mental disability inpublic accommodations and is, therefore, analogous to the ADA.See 5 M.R.S.A. § 4591. However, the Supreme Court, in theinterest of uniformity within a state as to time periods forfiling civil rights actions, has advised that courts shouldcharacterize civil rights claims generally, rather thanpredicate a choice of the correct statute of limitations on ananalysis of the particular facts of each claim. See Wilson, 471U.S. at 272-76, 105 S.Ct. at 1945-47. Accordingly, the Courtfinds that the six-year statute of limitations that applies toall civil actions applies to Mr. Conners' ADA claim rather thanthe more specific two-year limitation period contained in theMHRA. See McKay v. Winthrop Bd. of Educ., 1997 WL 816505(D.Me.) (applying Maine six-year statute of limitations forcivil actions to ADA claim).

Having determined that Maine's six-year statute oflimitations for civil actions applies to Mr. Conners' ADAclaim, the Court must next determine the date upon which hisclaim under Title III of the ADA accrued. In a federal questioncase, and in the absence of a contrary directive from Congress,"the discovery rule," applies to determine the date that aclaim accrued. According to the so-called "discovery rule," aplaintiff's cause of action accrues when he or she discovers,or with due diligence should have discovered the injury that isthe basis of the litigation. See Bolduc v. NationalSemiconductor Corp., 35 F. Supp.2d 106, 118-19 (D.Me.)Consistent with the discovery rule, the Court finds that aclaim made under the ADA accrues when a plaintiff receivesfinal and definite notice of the allegedly discriminatorydecision. The Court ascertains that the allegedly unlawfulemployment practice against Mr. Conners occurred on June 27,1994, for purposes of his Title I claim. On that date, Mr.Conners received clear and definite notice that UNUM hadmade a decision against him that is alleged to be unlawful.Thus, in accordance with the discovery rule, Mr. Conners' claimaccrued for purposes of his Title III claim on June 27, 1994.

Mr. Conners filed his suit on July 20, 1998 — approximatelyfour years after the date his claim accrued. Consequently, Mr.Conners' claim under Title III of the ADA is timely because itwas filed within the applicable statutory period under statelaw. Accordingly, Mr. Conners' claim under Title III of the ADAis timely and, thus, summary judgment will not be granted forDefendants on Count II.

4. Physical/Mental Distinctions in Employee Benefit Plans as Discrimination in Violation of the ADA.

Although Mr. Conners' claim under Title III of the ADA istimely, it must be dismissed because Mr. Conners may notmaintain claims under either Title I or Title III because hehas not stated a cognizable claim for discrimination under theADA. In essence, Mr. Conners claims that the LTD Plandiscriminates against him by arbitrarily providing differentlevels of benefits for psychological disabilities than areprovided for physical disabilities. The Court concludes thatMr. Conners argument does not support a finding ofdiscrimination under the ADA.

A disability benefit plan like the one at issue in this caseis common in today's workplace. However, the question ofwhether such a plan is discriminatory under the ADA is not asettled point of law. United States Circuit Courts of Appealfor the Third, Sixth, and Seventh Circuits have addressed thisprecise question and found that such disparity does notconstitute discrimination under the ADA. See Ford v.Schering-Plough Corp., 145 F.3d 601; Parker, 121 F.3d 1006; CNAIns. Co., 96 F.3d 1039; see also Krauel v. Iowa MethodistMedical Center, 95 F.3d 674, 679-80 (8th Cir. 1996) (holdingthat a health plan that excluded treatment of infertility fromits disability benefits was not discriminatory under the ADA);Rogers v. Dep't of Health and Environmental Control,985 F. Supp. 635 (D.S.C. 1997); EEOC v. The Chase Manhattan Bank,1998 WL 851605 (S.D.N.Y.) (unpublished disposition).8 ADistrict Court issued a contrary opinion on the issue anddetermined that such a distinction is unlawful discriminationunder the ADA. See Lewis, 982 F. Supp. 1158. The Court ofAppeals for the First Circuit has not addressed the issue, norhas a district court from this circuit.

The courts that have squarely confronted this issue rely oncases from the Supreme Court and Circuit Courts of Appealsconcerning the Rehabilitation Act. In the Supreme Court case,Traynor v. Turnage, 485 U.S. 535, 108 S.Ct. 1372, 99 L.Ed.2d618 (1988), relied on by the Courts of Appeal for the Third andSixth Circuits in Ford and Parker, the Supreme Court rejectedthe argument that a statute that precluded the VeteransAdministration from granting extensions to a ten-yeardelimiting period for veterans to claim their benefits if theveterans' disabilities arose from their own willful misconduct,defined by the relevant regulations as including alcoholism,discriminated against one type of disability. The Supreme Courtreasoned that "[t]his litigation does not involve a program oractivity that is alleged to treat handicapped persons lessfavorably than nonhandicapped persons." Id. at 548, 108 1382. The Court explicitly declared that "[t]here is nothingin the Rehabilitation Act that requires that any benefitextended to one category of handicapped persons also beextended to all other categories of handicapped persons."Id. at 549, 108 S.Ct. at 1382. Thus, according to the SupremeCourt's decision in Traynor, differentiating between differentdisabilities in the provision of benefits is distinguishablefrom differentiating between the disabled and the nondisabled.According to the Courts of Appeal for the Third and SixthCircuits, the holding in Traynor, that a covered entity is freeto differentiate between different disabilities under theRehabilitation Act, should be extended to the ADA. See Ford,145 F.3d at 608-609; Parker, 121 F.3d at 1016.

In accordance with the rule from Traynor, the Court ofAppeals for the Seventh Circuit rejected the plaintiff'schallenge to the disparity between benefits for mental andphysical illnesses, and stated,

One of those terms, conditions or privileges ofemployment [under the ADA] may be a pension plan,but there is no claim here that CNA discriminated onthe basis of disability in offering its pension planto anyone. It did not charge higher prices todisabled people, on the theory that they mightrequire more in benefits. [citations omitted.] Nordid it vary the terms of its plan depending onwhether or not the employee was disabled. Allemployees — the perfectly healthy, the physicallydisabled, and the mentally disabled — had a planthat promised them long-term benefits from the onsetof disability until age 65 if their problem wasphysical, and long-term benefits for two years if theproblem was mental or nervous. [citations omitted.][The plaintiff] raises a different kind ofdiscrimination claim, more grist for the ERISA millor the national health care debate than for the ADA.She claims that the plan discriminates againstemployees who in the future will become disabled dueto mental conditions rather than physical conditions;their present dollars (unbeknownst to them) arebuying only 24 months of benefits, instead ofbenefits lasting much longer. However this is dressedup, it is really a claim that benefits plansthemselves may not treat mental health conditionsless favorably than they treat physical healthconditions. Without far stronger language in the ADAsupporting this result, we are loath to read into ita rule that has been the subject of vigorous,sometimes contentious, national debate for the lastseveral years. Few, if any, mental health advocateshave thought that the result they would like to seehas been there all along in the ADA.

CNA, 96 F.3d at 1044. Furthermore, in denying the plaintiff'sclaim in Ford, the Court of Appeals for the Third Circuitexplained that,

[w]hile the defendants' insurance plan differentiated between types of disabilities, this is a far cry from a specific disabled employee facing differential treatment due to her disability. Every . . . employee had the opportunity to join the same plan with the same schedule of coverage, meaning that every . . . employee received equal treatment. 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 even if the plan offers different coverage for various disabilities. The ADA does not require equal coverage for every type of disability; such a requirement, if it existed would destabilize the insurance industry in a manner definitely not intended by Congress when passing the ADA.

Ford, 145 F.3d at 608. According to the foregoing reasoning, abenefits plan that distinguishes between disabilities isconceptually different from a benefits plan that distinguishesbetween the disabled and the nondisabled. The ADA forbids acovered entity from denying an individual or class ofindividuals benefits that are offered to all individualsbecause the individual or individuals are disabled. However, ifall individuals are denied the same benefits and nodifferential treatment betweenthe disabled and nondisabled occurs in the initial provision ofbenefits, no discrimination under the ADA has taken place.

As the Court of Appeals for the Third Circuit points out,reading the ADA so that it does not prohibit differentiatingbetween benefits is in accord with the statute's legislativehistory. The Ford Court points to the report from the SenateLabor and Human Resources Committee, which states:

In addition, employers may not deny health insurance coverage completely to an individual based on the person's diagnosis or disability. For example, 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. A limitation may be placed on reimbursements for a procedure or the types of drugs or procedures covered[,] e.g., a limit on the number of x-rays or non-coverage of experimental drugs or procedures; but, that limitation must apply to persons with or without disabilities. All people with disabilities must have equal access to the health insurance coverage that is provided by the employer to all employees.

Ford, 145 F.3d at 610 (citing S.Rep. No. 101-116, at 29(1989)).

Subsequent legislative occurrences to the ADA's passageillustrate that Congress did not believe that the ADA mandatedparity between mental and physical disability benefits. In1996, an amendment to the Health Insurance Portability andAccountability Act of 1996, Pub.L. No. 104-191, 110 Stat. 1936(1996), that would have mandated parity between insurancecoverage for mental and physical illnesses was proposed anddefeated. The Ford and CNA Courts reasoned that "such anamendment would have been unnecessary altogether if the ADAalready required such parity." See Ford, 145 F.3d at 610; CNA,96 F.3d at 1044. Furthermore, after the ADA, Congress passedthe Mental Health Parity Act of 1996, Pub.L. No. 104-204, TitleVII, 110 Stat. 2944 (1996) (codified at 29 U.S.C. § 1185a and42 U.S.C. § 300gg-5), which mandates that a health insuranceplan containing no annual or lifetime limit for medicalbenefits cannot have such limits on mental health benefits. TheFord Court reasoned that "[s]uch congressional action revealsboth that the ADA does not contain parity requirements and thatno parity requirements for mental and physical disabilitybenefits have been enacted subsequent to the ADA." Ford, 145F.3d at 610. Thus, the legislative history of the ADA and thehistory and substance of subsequent legislation reveals thatCongress did not intend for the ADA to require parity in mentaland physical disability benefits.

One district court has stood up to this precedent and foundthat the distinction drawn by these courts is illusory and thatthe ADA prohibits both discrimination between the disabled andthe nondisabled and discrimination between disabilities.See Lewis, 982 F. Supp. at 1168-69. That court reasoned that:

Both a decision to deny coverage on the basis of mental disability and to provide inferior coverage for mental disabilities target the mentally disabled for inferior treatment. In both cases, an insurer has subjected the mentally disabled individual to treatment inferior to that accorded to others solely on the basis of that individual's disability. . . . Under defendants' logic, an employer could hire an employee with a physical disability over a more qualified employee with a mental disability solely because of the mental disability, without violating the ADA, simply because both applicants were members of the protected class. . . . [T]he ADA prohibits discrimination on the basis of an individual's particular disability. Thus, whether a disabled person is treated differently than a non-disabled person or another disabled person, the same wrong has occurred. That is, the person has been discriminated against because of his particular disability.

Id. at 1168. The Lewis court found that the interpretation ofthe ADA to permit differentiating between disabilities is notin accord with the plain language of section 12112(a) of theADA, "which prohibits discrimination against an `individualwith a disability because of the disability of suchindividual.'" Id. (quoting 42 U.S.C.A. § 12112(a)). Althoughthe Lewis court discussed the decisions by the courts of appealin CNA and Parker, it did not, as it could not, adequatelysupport its position with the ADA's legislative history. Thestatute's language, cited by Lewis as support for finding thedistinction clearly laid out in the legislative historyillusory, does not provide compelling evidence that the statutemust be interpreted as the Lewis court contends. Accordingly,the Court finds the opinions of the Third, Sixth, and SeventhCircuit Courts and the legislative history before andsubsequent to the ADA more persuasive.9

Because the Court determines that there is nothing in the ADAthat requires a covered entity to provide the same benefits formental disabilities as for physical disabilities, it is notnecessary for the Court to determine whether the safe harborprovision for insurers under the ADA applies. Consequently, itis not necessary to examine whether the Defendants may justifytheir differentiation between mental and physical disabilitiesunder the LTD Plan with actuarial evidence.

According to appellate precedent and the relevant legislativehistory, there is simply no requirement under the ADA thatinsurance policies provide the same benefits to all categoriesof disabled people. The provision of a shorter benefits term topeople suffering from a mental rather than a physicaldisability may be based on antiquated or ignorant beliefs, asMr. Conners contends. However, this is an argument that isappropriately presented to the legislature. There is nothing inthe ADA that requires that any benefit extended to one categoryof disabled persons also be extended to all other categories ofdisabled persons. Accordingly, the foregoing is an alternativebasis upon which this Court may rest a decision to grantsummary judgment in favor of Defendants on Count I and thepremise upon which the Court will grant summary judgment infavor of Defendants on Count II.

B. The MHRA.

The MHRA provides, in relevant part, the following:

1. Unlawful employment. It shall be unlawful employment discrimination, in violation of this Act, except where based on a bona fide occupational qualification:

A. For any employer to fire or refuse to hire or otherwise discriminate against any applicant for employment because of race or color, sex, physical or mental handicap, religion . . . or discriminate with respect to hire, tenure, promotion, transfer, compensation, terms, conditions or privileges of employment, or any other matter directly or indirectly related to employment . . . because of their race or color, sex, physical or mental handicap, religion. . . .

5 M.R.S.A. § 4572. Under the MHRA, a claim must be filed withintwo years of the date of the act of the allegedly unlawfuldiscrimination. See 5 M.R.S.A. § 4613(2)(c). The Court hasdetermined that Mr. Conners' claim accrued on June 27, 1994,when he was notified in writing that he was subject to thetwo-year limitation on disability benefits. Mr. Conners filedhis Complaint on July 20, 1998, and, thus, failed to filebefore the statute of limitations on his MHRA claim had run.Accordingly, the Court will grant summary judgment in favor ofDefendants on Count III.10


In Count IV of his Amended Complaint, Mr. Conners allegesthat Defendants' refusal to continue to provide him withdisability benefits under the LTD Plan constitutes a wrongfuldenial of benefits in violation of ERISA. The civil enforcementprovision of ERISA provides in relevant part that:

A civil action may be brought —

(1) by a participant or beneficiary —

(A) for the relief provided for in subsection (c) of this section, or

(B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan;

(2) by the Secretary, or by a participant, beneficiary or fiduciary for appropriate relief under section 1109 of this title; [entitled "Liability for Breach of Fiduciary Duty"]

(3) by a participant beneficiary or fiduciary (A) to enjoin any act or practice which violates any provision of this title or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violates or (ii) to enforce any provisions of this title or the terms of the plan. . . .

29 U.S.C. § 1132(a)(1)(B). Mr. Conners alleges that Defendantswrongfully applied the two-year limitation on his disabilitybenefits because they incorrectly determined that he suffersfrom a mental or nervous disease rather than a physicaldisability. Amended Complaint, ¶ 36. Mr. Conners' AmendedComplaint also sufficiently alleges a claim for breach offiduciary duty. He alleges that he is entitled to reinstatementof disability benefits, reimbursement for benefits due and notpaid, interest, costs, and attorney fees. Id. ¶ 39. In hisspecific request for relief, Mr. Conners also requests"judgment against Defendants Maine Medical Center and UNUM fordamages in the amount determined to be caused by theDefendants' discrimination, plus interest and costs, attorneyfees, and such further relief as the Court deems just andproper." Id. Therefore, a plain reading of Mr. Conners' AmendedComplaint demonstrates that Mr. Conners requestsextracontractual damages — damages in addition to thereinstatement of his benefits and restitutionary relief in theform of reimbursement for benefits due and not paid.

Defendants ask the Court to grant summary judgment againstMr. Conners to the extent that he seeks relief not providedunder ERISA, namely "damages . . . caused by the Defendants'discrimination." Under section 1132(a)(1)(B), Mr. Conners mayrecover benefits due to him under the terms of the plan.See 29 U.S.C. § 1132(a). This section provides only for therecovery of what is due a plan participant under the terms ofthe benefit plan and does not support a claim for compensatorydamages.

Mr. Conners has also sufficiently alleged that Defendantsbreached their fiduciary duty against him when they denied hisclaim for benefits available for physically disabled planparticipants. Under section 1132(a)(2), a participant may bringa civil action to recover "appropriate relief under section1109 of this title," which is entitled "liability for breach offiduciary duty;" and under section 1132(a)(3), a participantmay recover injunctive relief. The issue is, thus, whether aplan participant or beneficiary may recover damages undersection 1109(a). The answer to this query is short and clear.The Supreme Court has held that section 1109 is not authorityfor an award of extracontractual damages to a beneficiary, nordoes the legislative history of the section reveal acongressional intent for the judiciary to imply a private rightof action to recover damages. See Massachusetts Mutual LifeInsurance Co. v. Russell, 473 U.S. 134, 144, 148, 105 S.Ct.3085, 3091, 3093, 87 L.Ed.2d 96 (1985); see also Varity Corp.v. Howe, 516 U.S. 489, 116 S.Ct. 1065, 134 L.Ed.2d 130(upholding the Supreme Court's decision that an award ofdamages to a civil litigant under section 1132(a)(2) in abreach of fiduciary claim is not permitted and holding that aparticipant may, however, recover equitable relief undersection 1132(a)(3) in a breach of fiduciary duty claim).Therefore, although Mr. Conners may pursue his ERISA claims inCount IV, he is limited to recovery of benefits that he is owedunder the LTD Plan and may not recover extracontractual damagescaused by Defendants' alleged discrimination.11

Finally, Mr. Conners presents a labyrinthine argument insupport of his right to summary judgment on his ERISA claim inCount IV. In effect, he contends that Defendants have violatedERISA because the LTD Plan violates a Maine law that regulatesinsurance which is not preempted by section 1144 of ERISA. TheMaine law cited by Mr. Conners provides in relevant part that:

No insurer authorized to transact business in this State may refuse to insure or continue to insure, limit the amount, extent or kind of coverage available to an individual or charge an individual a rate different from that normally charged for the same coverage solely because the insured or the applicant for insurance has a physical or mental handicap, as defined in Title 5, section 4553(7-A). . . .

24-A M.R.S.A. § 2159-A. The proper way for this claim to havearisen in this case is for Mr. Conners to have brought a statelaw claim alleging that the LTD Plan violated 24-A M.R.S.A. §2159-A. Defendants may then have asserted that the claim underthe state law was preemptedby ERISA, and Mr. Conners may have presented the argumentpresented here in response. Mr. Conners has disguised thisstate law claim as a claim under ERISA, rather than presenting,in a straightforward manner, a claim under state law. TheCourt, therefore, will not consider Mr. Conners' argument thathis plan violates 24-A M.R.S.A. § 2159-A because it was notpleaded in the Amended Complaint. Thus, the Court will notgrant summary judgment in favor of Mr. Conner's on Count V. Aspreviously explained, Mr. Conners is free to pursue his claimunder ERISA as it was presented in his Amended Complaint and todemonstrate that his disability was wrongfully designated asmental and that he is entitled to full-term disability benefitsunder the LTD Plan.


To conclude, the Court ORDERS that Defendants' motion forsummary judgment (Docket No. 19) be, and it hereby is, GRANTED.The Court FURTHER ORDERS that Plaintiff's cross motion forsummary judgment (Docket No. 24) be, and it hereby is, DENIED.Accordingly, judgment must be entered in favor of Defendants onCounts I, II, and III. Plaintiff's ERISA claim in Count IVremains viable insofar as it does not seek to recoverextracontractual damages. Because only the ERISA claim remains,this case will be taken off the jury trial list and scheduledfor a bench trial.


1. Defendants also rely on the statement made by the UnitedStates District Court of Massachusetts in Motzkin v. Trusteesof Boston Univ., 938 F. Supp. 983, 996 (D.Mass. 1996) (Karol,M.J.), stating that "the legislative intent is so clear fromthe language of Titles I and III that one need not go beyondthat language to conclude that employment discrimination is theexclusive province of Title I" as support for their argument.However, that case is distinguishable from the case at bar. Inthat case, a plaintiff attempted to bring a discriminationclaim under Title III of the ADA against his employer for earlytermination allegedly based on his disability. See id. at985-87. The court held that a job is not a privilege,advantage, good, or service offered to members of the public byplaces of public accommodation, see id. at 996, and, thus,Title III does not apply to employment discrimination. However,in the case at bar, Mr. Conners alleges that UNUM and MMCdiscriminated against him in their provision of disabilitybenefits that distinguish between physical and mental benefits.Disability benefits are more akin to a privilege, advantage,good, or service than to one's employment. Thus, Title IIIarguably applies here.

2. Because Maine has an agency with the authority to addresscharges of discriminatory employment practices, the applicableperiod for filing a charge of discrimination is 300, ratherthan 180, days. See 42 U.S.C. § 2000e-5(e)(1).

3. It is undisputed that Maine Medical Center informed Mr.Conners in April of 1997 that they had terminated hisemployment as of April 26, 1996.

4. Defendants cite this Court's decision in Bolduc v.National Semiconductor Corp., 35 F. Supp.2d 106 (D.Me.), assupport for their contention that the accrual date of thisclaim was the date on which Mr. Conners was enrolled in a planthat is purportedly discriminatory under the ADA. Bolduc doesnot lend Defendants support for their position. In Bolduc, asin this case, the Court found that the statute of limitationscommenced on the day that Mr. Bolduc had clear and unequivocalnotice that his claim for benefits had been clearly repudiatedby his employer. See id. at 119-20. The employer had clearlyrepudiated Mr. Bolduc's claim for benefits when it hired Mr.Bolduc and told him that he was not eligible for employmentbenefits because he was hired as an independent contractor. Seeid. at 118-20. At that point, Mr. Bolduc was eligible toreceive the employment benefits that he sought, but for theemployer's determination regarding his status. Mr. Bolduc'sclaim was ripe for adjudication at the time he was told hewould not receive benefits by virtue of his independentcontractor status because his injury was capable of beingredressed by a favorable decision of this Court. Here, Mr.Conners was enrolled in the LTD Plan but was not explicitlygiven notice that he would not receive full-term benefits untilthe letter of June 27, 1994. Before this notification, Mr.Conners was unaware of how his disability, if he becamedisabled, would be characterized and whether he would receivefull-term benefits.

5. Mr. Conners suggests that the final date of the appellateprocess was in December of 1997, when Maine Medical Centerdenied, for the final time, his request for benefits under theMaine Medical Center Pension Plan that had been terminated asa result of the termination of his employment. As discussed,the termination of Mr. Conners' employment and pensioncontributions are merely consequences of the original allegedlyunlawful act of designating Mr. Conner's disability as mentaland not the discrimination which gives rise to the cause ofaction. Thus, the date that the grievance procedures for thedecision regarding Mr. Conners' employment and pension wereexhausted is not the relevant date to this cause of action.Instead, the date June 5, 1997, on which the grievanceprocedures to protest Defendants' decision regarding hisdisability benefits were complete, is relevant to Mr. Conners'argument.

6. The Court is sympathetic to Mr. Conners' position. It istrue that the Court's decision could encourage a deluge ofhypothetical claims which may never ripen into actualcontroversies or injuries. Mr. Conners may have resolved hiscomplaint with UNUM and MMC before the two years ran out andnever have experienced the loss of disability benefits. It isalso not unreasonable for an individual who is subjected to anadverse decision regarding his or her benefits to believe thisis not a final determination until the appellate processregarding that decision is complete. However, this concern wasarticulated by Justice Brennan in his dissent inChardon, when he stated that:

The effect of this ruling will be to increase the number of unripe and anticipatory lawsuits in the federal courts — lawsuits that should not be filed until some concrete harm has been suffered, and until the parties, and the forces of time, have had maximum opportunity to resolve the controversy.

Chardon, 454 U.S. at 9, 102 S.Ct. at 30 (J. Brennan,dissenting). A majority of the Court chose to reject thisargument, and this Court is bound to the analysis of themajority.

7. The Court need not consider whether the date provided bythe Maine Human Rights Commission as the date the allegedunlawful discrimination occurred — April 26, 1996 — is thecorrect date for purposes of the 300-day statute oflimitations. Mr. Conners filed his administrative charge withthe MHRC in October of 1997, more than 300 days after April 26,1996.

8. Courts interpreting the ADA's predecessor, theRehabilitation Act of 1973, 29 U.S.C. § 794 (1994), have issuedopinions finding that providing a lower level of benefits forpsychological disabilities than for physical disabilities doesnot constitute unlawful discrimination. See Modderno v. King,82 F.3d 1059 (D.C. Cir. 1996); Doe v. Colautti, 592 F.2d 704(3rd Cir. 1979).

9. The Court notes that the scenario presented by theLewis court — that an employer is free to refuse to hire amore qualified mentally disabled person over a physicallydisabled person simply because the person is mentally disabled— is not an inevitable result under this Court'sinterpretation of the ADA. A plaintiff may still sue under theADA and demonstrate that a covered entity refused to providehim or her with goods, services or employment because he or sheis disabled. It remains unlawful for a covered entity toexclude an individual from employment or benefits due todiscrimination solely on the basis of the disability. As theSupreme Court recently held within the context of agediscrimination, "[t]he fact that one person in the protectedclass has lost out to another person in the protected class isthus irrelevant, so long as he has lost out because of hisage." O'Connor v. Consolidated Coin Caterers Corp.,517 U.S. 308, 312, 116 S.Ct. 1307, 1310, 134 L.Ed.2d 433 (1996)(emphasis added). In the present situation, no individual hasbeen singled out and treated differently because of his or herdisability, while in the hypothetical posed by the Lewis Court,a qualified individual was not hired because of his disability.Thus, interpreting the ADA to mean that a covered entity maylawfully differentiate between disabilities in providingbenefits, services, or goods as long as all individuals aregiven the same benefits despite their disability status is notin conflict with the premise underlying the ADA thatdiscrimination against an individual with a disability becauseof the disability of such individual is unlawful.

10. Because the statute of limitations is dispositive ofCount III in favor of Defendants, the Court will not considerDefendants' additional arguments that ERISA preempts a claimunder the MHRA in this case and that Mr. Conner's claim underthe MHRA would fail on the merits.

11. Instead of addressing Defendants' arguments, Mr. Connersattempts to convince the Court that his ERISA claim is timely.Although Defendants challenged the timeliness of Counts I, IIand III, it does not appear to the Court that Defendantschallenged the timeliness of Mr. Conners' ERISA claim containedin Count IV. However, the Court finds that Mr. Conners ERISAclaim is timely. As discussed, Mr. Conner's claim accrued onJune 27, 1994, when he was told that UNUM had classified hisdisability as mental and he was subject to the two-yearlimitation on LTD benefits. Maine has a six-year statute oflimitations for all civil actions, which this Court has heldapplies to ERISA claims. See Bolduc, 35 F. Supp.2d 106, 117-18(D.Me.). Because Mr. Conners pursued his administrativeremedies provided under the LTD Plan from approximately Januaryof 1996 through July of 1997, and filed this action on July 20,1998, Mr. Conners is well within the six-year statute oflimitations.

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