Seese v. Prudential Insurance Company of America
AMENDED MEMORANDUM OPINION & ORDER. (Entire document was not attached in prior filing). IT IS HEREBY ORDERED that Prudential's motion to dismiss 11 is GRANTED. Counts Four and Six are hereby dismissed. (Written Opinion). Signed by Judge Michael J. Davis on 9/23/15. (GRR)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Case No. 14‐3286 MJD/FLN
MEMORANDUM OPINION & ORDER
Prudential Insurance Company of America,
Barry A. O’Neil and Kate Westad, Lommen Abdo, P.A., Counsel for
Ian H. Morrison, Seyfarth Shaw, LLP and Barbara P. Berens and Erin K.
Fogarty Lisle, Berens Miller P.A., Counsel for Defendant.
The above‐entitled matter comes before the Court on Prudential Insurance
Company of America’s (“Prudential”) objections to the Report and
Recommendation of Magistrate Judge Franklin L. Noel dated July 20, 2015
recommending that the Court deny its motion to dismiss Count VI which alleges
claims under the Americans with Disabilities Act.
Pursuant to statute, the Court has conducted a de novo review of the
record. 28 U.S.C. § 636(b)(1); Local Rule 72.2(b). Based on that review, the Court
will not adopt the Report and Recommendation with respect to Prudential’s
motion to dismiss the ADA claims.
Plaintiff was an employee of Carlson Companies (“Carlson”) and worked
as a Systems Analyst for Carlson subsidiary Carlson Wagonlit Travel.
(Complaint ¶ 4.) Prudential issued a group long term disability insurance policy
(the “Plan”) to Carlson as an employee benefit. (Id. ¶ 3.) Carlson is the
administrator of the Plan and appointed Prudential as the Plan fiduciary to
review, approve and pay claims benefits provided by the Plan. (Id. ¶ 4.)
Plaintiff alleges that he was forced to leave his position at Carlson due to
disabling medical conditions. (Id. ¶ 10.) Plaintiff lists these disabling conditions
as severe chronic headache, severe chronic fatigue, depressed mood, chills/cold
temperature, stiff neck, chronic neck pain and spasm, significantly decreased
energy, dizziness, sleepiness and inability to work, or to stand or sit for an
extended period of time. (Id.) Plaintiff made a claim under the Plan for long
term disability benefits. (Id. ¶ 12.)
On or about January 23, 2012, Prudential denied Plaintiff’s claim based on
its determination that the medical evidence did not substantiate his disability.
(Id. ¶ 13.) He alleges that Carlson paid him short term disability benefits directly
as a self‐insured provider of such benefits. (Id.)
Plaintiff alleges that Prudential again denied his claim for long term
disability benefits on or about February 28, 2012 for the same reason his first
claim was denied. (Id. ¶ 14.) Plaintiff appealed the denial on or about September
25, 2012. (Id.) Following a review of the file, which included additional medical
records submitted in December 2012, Prudential determined that Plaintiff would
be capable of performing the material and substantial duties of his regular
occupation and denied his claim. (Id. ¶ 16.) Plaintiff submitted a voluntary
appeal of this decision, and Prudential again denied his claim. (Id.)
In this action, Plaintiff asserts four claims under ERISA, a state law breach
of contract claim and an ADA claim. Prudential moved to dismiss the breach of
contract claim, as such claim is preempted by ERISA. Prudential also moved to
dismiss the ADA claim on the basis that Prudential is not a proper defendant
under that statute.
The motion to dismiss was referred to Magistrate Judge Noel. In its brief
in opposition to Prudential’s motion, Plaintiff did not object to dismissal of the
breach of contract claim. Magistrate Judge Noel recommended the Court dismiss
the breach of contract claim, and there is no objection to that recommendation.
Magistrate Judge Noel recommended that the Court deny Prudential’s
motion to dismiss the ADA claim, finding that Prudential is a proper defendant
under Title III of the ADA, and is not protected under the ADA safe harbor
provision. For the reasons stated below, the Court finds that as a matter of law,
the ADA claim against Prudential must be dismissed.
Plaintiff alleges that it is an unfair discriminatory practice under Title III of
the ADA, 42 U.S.C. § 12182, to deny a person, because of his/her disability, the
full and equal enjoyment of the goods, services, facilities, privileges, advantages
or accommodations of any place of public accommodation. (Id. ¶ 46.) Plaintiff
further alleges that Prudential violated Title I of the ADA when it denied his
claim for benefits under the Plan. (Id. ¶¶ 52 and 54.)
Title I of the ADA provides that “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,
The Magistrate Judge did not address whether Plaintiff stated a claim under Title I.
employee compensation, job training, and other terms, conditions, and privileges
of employment.” 42 U.S.C. § 12112(a). A covered entity is defined as “an
employer, employment agency, labor organization or joint labor‐management
committee.” 42 U.S.C. § 12111(2). The Court finds that Plaintiff has failed to
state a claim under Title I because he has not alleged that he is a qualified
individual as defined under the ADA.
A qualified individual is one “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). In his complaint,
Plaintiff alleges he was forced to leave his position at Carlson because of his
disabling medical conditions. (Comp. ¶ 10.) Plaintiff does not allege that he
could perform the essential functions of his job with or without a reasonable
accommodation. Rather, he alleges he has been “diagnosed with chronic fatigue
syndrome and deemed completely disabled from working in any capacity by
multiple medical treating physicians.” (Id.)
Although the Eighth Circuit has not addressed this issue directly, it has
found that former disabled employees unable to perform their jobs cannot bring
a discrimination claim under the Rehabilitation Act, because the Act “was
designed to prohibit discrimination within the ambit of an employment
relationship in which the employee is potentially able to do the job in question.”
Beauford v. Father Flanagan’s Boys’ Home, 831 F.2d 768 (8th Cir. 1987) cert.
denied, 485 U.S. 938 (1988). The Eighth Circuit based this decision on the fact
that the Act applied to “otherwise qualified handicapped individuals” which had
been defined as “one who is able to meet all of a program’s requirements in spite
of his handicap.” Id. (citing Southeastern Comty. College v. Davis, 442 U.S. 397,
Other courts, including the Eighth Circuit, have applied the Beauford
decision to cases involving the ADA, given the similarities between the two
statutes. See Wojewski v. Rapid City Reg. Hospital, Inc., 450 F.3d 358 (8th Cir
2006) (finding that because the ADA, like the Rehabilitation Act, requires there be
an employer‐employee relationship, an independent contractor may not bring a
claim under the ADA); E.E.O.C. v. Group Health Plan, 212 F. Supp.2d 1094,1099
(E.D. Mo. 2002) (finding that a former employee may not bring a claim against
the plan administrator of an employee health plan under Title I).
Finally, a number of circuit courts have held that a former employee that is
totally disabled cannot bring a claim under Title I for discrimination in the
handling of disability benefits. See Weyer v. Twentieth Century Fox Film Corp.,
198 F.3d 1104, 1111‐12 (9th Cir. 2000) (finding that Title I unambiguously
excludes totally disabled persons); McKnight v. Gen. Motors Corp, 550 F.3d 519
(6th Cir. 2008) (finding that totally disabled former employees cannot bring suit
under Title I of the ADA); Morgan v. Joint Admin. Bd., 268 F.3d 456, 458‐59 (7th
Cir. 2001) (finding that Title I does not apply to former employees that are totally
disabled); see also Budd v. ADT Sec. Sys., Inc., 103 F.3d 699 (8th Cir. 1994) (per
curiam decision affirming dismissal of ADA claim on the basis that a plaintiff
who represented that he was unable to return to work is estopped from claiming
he is a qualified individual under the ADA).
Accordingly, Plaintiff has not alleged a claim under Title I of the ADA
because he has not, and cannot, allege that he can perform the essential functions
of his job with or without reasonable accommodation.
The Magistrate Judge held that Plaintiff had adequately plead a
discrimination claim under Title III of the ADA, as Prudential can properly be
considered a “public accommodation” under § 12181(7). Based on its de novo
review, the Court finds that Plaintiff has failed to state a claim under Title III.
This is an issue that has not been addressed by the Eighth Circuit. The
majority of circuit courts of appeal that have addressed the issue, however, have
found that a benefit plan offered by a private employer is not a service provided
by a public accommodation. See Parker v. Metropolitan Life Ins. Co., 121 F.3d
1006, 1014 (6th Cir. 1997); Ford v. Schering‐Plough Corp., 145 F.3d 601, 612 (3d
Cir. 1998); Weyer, 198 F.3d at 1115 (9th Cir. 2000); Morgan, 268 F.3d at 459.
In Parker, the Sixth Circuit looked to the statutory text of Title III and noted
it addresses discrimination by owners, lessors, and operators of public
accommodations. Id. 121 F.3d at 1010. Included in the definition of public
accommodation is “insurance office.” Id. Because the insurance at issue was a
long term disability policy provided by plaintiff’s employer, the court held that
“plaintiff did not seek the goods and services of an insurance office. Rather,
[plaintiff] accessed a benefit plan provided by her private employer and issued
by MetLife. A benefit plan offered by an employer is not a good offered by a
place of public accommodation.” Id.
The court then discussed the fact that “public accommodation” as
evidenced by the statutory text, is a physical place. “Every term listed in §
12181(7) and subsection (F) is a physical place open to the public.” Id. at 1014.
An employer benefits plan, however, is not a public accommodation because
[t]he public cannot enter the office of MetLife or [the employer] and obtain
the long‐term disability policy that plaintiff obtained. [Plaintiff] did not
access her policy from MetLife’s insurance office. Rather, she obtained her
benefits through her employer. There is thus no nexus between the
disparity in benefits and the services which MetLife offers to the public
from its insurance office.
Id. at 1011.
In Ford, the Third Circuit held that disability benefits offered in the context
of employment constitute part of the terms and conditions of employment, and
are therefore covered under Title I, not Title III. Id. 145 F.3d at 612. As a result,
the plaintiff could not assert a claim against her employer pursuant to Title III.
Id. With respect to the insurance carrier, the court held disability benefits
provided as a term and condition of employment do not qualify as a public
accommodation under Title III. Id. at 613. “Since [plaintiff] received her
disability benefits via her employment  she had no nexus to [the insurance
carrier’s] and thus was not discriminated against in connection with a public
accommodation.” Id. The court further noted that limiting “public
accommodation” to physical places is consistent with the Department of Justice’s
The purpose of the ADAʹs public accommodations requirements is to
ensure accessibility to the goods offered by a public accommodation, not to
alter the nature or mix of goods that the public accommodation has
typically provided. In other words, a bookstore, for example, must make
its facilities and sales operations accessible to individuals with disabilities,
but is not required to stock Brailled or large print books. Similarly, a video
store must make its facilities and rental operations accessible, but is not
required to stock closed‐captioned video tapes.
Id. (citing 28 CFR pt. 36, app. B, at 640 (1997)).
The Seventh Circuit took a different approach in Morgan, declining to
interpret “public accommodation” literally, as “denoting a physical site,”
recognizing that “[a]n insurance company can no more refuse to sell a policy to a
disabled person over the Internet than a furniture store can refuse to sell
furniture to a disabled person who enters the store.” 268 F.3d at 459. The court
also recognized that “[t]he site of the sale is irrelevant to Congress’ goal of
granting the disabled equal access to sellers of goods and services. What matters
is that the good or service be offered to the public.” Id. Because the retirement
plan at issue was not offered to the public, and resulted from negotiations
between the employer and the representative of its employees, it was not a public
accommodation under the ADA. Id.
The Court finds the reasoning set forth in Morgan to be persuasive. Here,
the Plan was private, limited to employees of Carlson. Because the Plan was not
offered to the public in general, it is not a public accommodation under Title III
of the ADA. See King v. Burwell, 135 S. Ct. 2480 (2015) (rules of statutory
construction require that when interpreting statute, words of a statute must be
read in their context and with a view to their place in the overall statutory
scheme); United States v. Felt & Tarrant Mfg. Co., 283 U.S. 269, 273 (1931)
(finding it is not within judicial province to read words out of a statute).
IT IS HEREBY ORDERED that Prudential’s motion to dismiss (ECF No.
11) is GRANTED. Counts Four and Six are hereby dismissed.
DATED: September 23, 2015
s/ Michael J. Davis
MICHAEL J. DAVIS
United States District Court
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