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and
Sheehan
_______
on brief for
appellants.
Samuel A. Marcosson, Attorney, with whom James R. Neely,
____________________
________________
Jr., Deputy General Counsel, Gwendolyn Young Reams, Associate
___
______________________
General Counsel and Vincent J. Blackwood, Assistant General
______________________
Counsel were on brief for the Equal Employment Opportunity
Commission, amicus curiae.
William
Garza, Cary
LaCheen, Herbert
Semmel, Thomas
_______________
______________
________________
______
Kendricks on brief for American Civil Liberties Union, Gay and
_________
Lesbian Advocates and Defenders and Gay Men's Health Crisis,
amici curiae.
James H. Schulte, with whom Burns, Bryant, Hinchey, Cox &
_________________
______________________________
Schulte, P.A. was on brief for appellees.
_____________
____________________
October 12, 1994
____________________
-2-
TORRUELLA,
Circuit
Judge.
_______________
Plaintiffs-appellants
Senter, appeal
their
from
the district
dismissing
discrimination based
on disability
judgment under
laws.
plenary.
1991).
and draw
in favor of
the plaintiffs.
Id.
___
II.
II.
BACKGROUND
BACKGROUND
__________
In May 1986, Plaintiff
diagnosed
as
positive").
Acquired
infected with
Human Immunodeficiency
In March 1991,
Immune
he was diagnosed
Deficiency
Syndrome
Virus ("HIV
as suffering from
("AIDS").
He
died
on
was
the
director, and
Inc.
sole
an
("Carparts"),
shareholder,
employee
an
president,
of Carparts
automotive
chief
Distribution
parts
wholesale
participant in a self-
Association
of
offered by
New England
the defendants
AWANE,
In October
Plan")
Automotive Wholesalers
1977.
Plan ("the
Benefit
in this case,
Health
of New
England, Inc.
1990, AWANE
Plan informed
the Plan
members of
order to
limit benefits
effective January 1,
1991.
to $25,000,
Otherwise, lifetime
benefits under
$1 million per
illnesses, many
Senter directly
treatment and
spring
of which were
submitted claims
medications to
or summer
of
1989, Senter
1991, when
HIV or
for payment
AIDS
of his
AWANE Plan
submitted the
or matters
Carparts
("plaintiffs"
or
alleged,1
aware of Senter's
condition
Plaintiffs
claim
and
amendments to the
that the
cap
on
"appellants")
AIDS-related illnesses
was
1
Following Senter's death, Shirley M. Senter and Daniel W.
Dirsh were appointed co-executors for his estate.
On April 1,
1993, the district court allowed the substitution of the coexecutors for Senter as plaintiffs in this action.
-3-
HIV positive,
medical
expenses
suffering from
expenses
was
and that
instituted in
related
claims that
months.
According
he had
to
lifetime
response
to
filed during
plaintiffs, after
to AIDS-related
cap on
AIDS
related
Senter's illness
the
and
previous several
Senter
reached
the
matters in a
cap
on
brought
health
instituted by defendants,
the basis
of
rendered
healthcare
providers
out
of
and
that
with
discriminatory
responsible
Senter's behalf
compliance
354-A ("Section
individuals
Such a
with
alleging
the
AIDS,
Carparts
on
action
benefits for
a disability.
allegedly
Carparts
this
for
and
on
provision
payments
to
effectively
put
anti-discrimination
laws,
12101, et seq.
__ ____
The district court dismissed
on July 19, 1993.
their complaint
notice of
We agree.
days before
to
federal
court claiming
effective.
They
that
the
issues raised
were
pretrial
indicated
conference
on
their intention
April
to
move
15,
1993,
the
to dismiss
the
assert
claims under
and
others,
an
42
amended
The plaintiffs'
granted
the ADA.
they
the ADA.
U.S.C
their complaint
to
include,
Title I and
12112(a), 12182(a).
The
motion was
among
Title III of
defendants filed
defendants' objection as a
P. 12(b)(6).
neither
R. Civ.
Title I nor
Title III of
to this case
respect
neither
to plaintiffs
defendant was
as required
a "public
by
Title I,
accommodation" as
and that
required by
Title III.
Where no motion to dismiss has
court may,
the inadequacy of
-5-
complaint.
Yet a
plaintiffs
court may
notice
to
374
not do
so without
Cir.
Pavilonis v.
_________
1973)
at least giving
omitted);
see also
_________
amend
AWANE's
the complaint,
objection,
issues regarding
district
neither
plaintiffs
filing
opportunity
to the
their claims
response
the
to
substantive
on which the
to respond
complaint regarding
filed a
addressed
R. Civ.
and
perceived shortcomings
under Title
in their
and Title
or any
III
to Fed.
alone
at 374.
We also find,
interpreting
Title
See id.
___ ___
and
of
the
ADA
are
dismissal was
The district
Title III
of
the
court erred
ADA
to have
to
arise
on
remand.
contend that
the
district court
erred in
-6-
12112(a).
12111(2).
As the
unlawful for a
disability against
to discriminate on
a qualified
other
provision "makes it
individual with a
of
disability in
regard
to, among
virtue
that
benefit."
provided
by
things, fringe
the basis
benefits, available
by
defendants
is
considered
a fringe
v. Automotive Wholesaler's
_______________________
(D.N.H. 1993).
The district
court
2
For purposes of this appeal, we assume that Senter is a
"qualified
individual with
a disability."
We
make no
determination as to whether defendants' cap on benefits in the
present case constitutes "discrimination" based on a disability.
-7-
I of the ADA.
interpreting
employers
Title I
who
liability under
of the
discriminate
ADA to
with
permit suits
respect
to
only against
the
terms
and
2000-e, et seq.
__ ____
significant
between
difference
"employer" in the
(Title
VII)
two statutes.
with
____
42
Interpretive Guidance on
U.S.C.
Title I
the
definition
Compare 42
_______
of
term
2000e(b)
The
published by
the
42 U.S.C.
is no
(ADA).3
____________________
3
the
U.S.C.
12111(5)(A)
of the ADA,
There
2000(e)(b).
such person.
42 U.S.C.
12111(5)(A).
-8-
Equal
Employment
that
Opportunity
Commission ("EEOC"),
the
ADA that
35,740
[it is]
(1991) (to
be
given under
codified
(Interpretive Guidance on
at
establishes
56
C.F.R.
1630.2(a)-(f)).
Fed. Reg.
1630,
App.)
guidance")
(internal
Additionally,
remedies
Title I
quotations
of
the ADA
and
The
employers
issue before
of Senter
us
provides
within the
ADA
and
therefore
"powers,
to claims of
42 U.S.C.
12117(a).
whether defendants
common sense
omitted).
that the
is not
resort for
citation
of
of
judgment to
courts by reason
subject
of the
were
word, but
liability
for
Title
opportunity
to
I,
amend
If under
then
plaintiffs
their
complaint
should
to
be
allege
given
the
an
facts
Plaintiffs
we agree, that
defendants could be
____________________
liability
under Title
I,
under
any
one
of
at
least
three
theories.
First,
functioned as
health
defendants
would
Senter's "employer"
be
"employers"
with respect to
if
they
his employee
1223 (1983),
reinstated and
______________
469 U.S.
881 (1984)
(interpreting the
employment opportunities,
director
F. Supp.
of State agency
term "employer"
sufficiently broad
regardless
described as an
of any
of whether
'employer' of an
1984), cert.
_____
v.
(2d Cir.
'employer,' . . . is
F.2d 23
at
481, 483
(D.R.I. 1984)
that administered
(court found
disability benefits
for State employees liable under Title VII even though agency did
not employ
limited
is not
to control
because it
"exercise[d] significant
entities
such
responsibility to provide
they are so
as
Carparts
to
delegate
intertwined with
employees,
they must
I of the
ADA.
be
deemed
an "employer" for
Spirt,
_____
an
purposes of Title
their
See
___
universities
retirement
delegate
benefits
intertwined
deemed
to
with
for
their
responsibility
their
employees,
those universities
. .
to
provide
so
closely
that they
must be
are
of Title VII").
Relevant to
level
of benefits
that
would
to
Carparts'
with Carparts.
If defendants
be acting as an
of
provided
be
the
employment
determination is
relationship.5
Also
this aspect
relevant
in the
to
this
administrative
tend
Plan.
to suggest
See id.
___ ___
that
and
defendants
are
so
____________________
5
In contrast,
a product
intertwined
as to
respect
to
health care
allowed
to proceed
these questions.
be
acting
benefits.
can
For
together
as an
Only
"employer"
if the
plaintiffs develop
litigation is
a record
with
to answer
P. 12(b)(6), the
manner in which
on
if defendants
behalf of
are "agents" of
the
entity in
a "covered
the matter
for
employee
benefits
entity,"6 who
of
providing and
Just as "delegation of
cannot
insulate
Spirt, 691
_____
F.2d
at
1063,
neither
plan under
can
it
Title I
insulate
of the
ADA.
See
___
id.
___
(recognizing
administered
by
that
an
"exempting
employer
would
plans
not
seriously
actually
impair
the
102(a)
a "qualified
individual with a
may not
disability
aspects of employment.
____________________
6
42 U.S.C.
circuit, have
12112(a).
interpreted analogous
provisions of Title
technically an employee of
1973),
the court
Wilson, 488
______
VII
VII to
a plaintiff who is
that employer.
applied Title
not in this
For example, in
F.2d 1338,
to a
1341 (D.C.
hospital which
refused
though
to assign a private
male nurse to
of a particular patient.
holding at
We
do not want to
there is
automatic
of another
At the
same
Sibley might be
______
made out.
analogous
(6th Cir.
v.
1991),
cert. denied, 112 S. Ct. 658 (U.S. 1991) (interpreting Title VII,
_____ ______
court stated that "a
one
who
significantly
employment
affects
opportunities")
access
(internal
422
(7th Cir.
of
any
defendant is
individual
quotations and
citations
1986) (argument
that
to
plaintiff is
F.2d
not an
"[t]here are no
indications that
[language proscribing
alleged
that
prematurely
dismissed
defendants
ADA.
plaintiffs'
Because
were
"covered
complaint without
affording
for
us to determine
given
an
the record is
Title I.
opportunity to
not sufficiently
On remand,
address
this
Senter's
plaintiffs should
issue
so that
the
12182(a).
Prohibited discrimination under Title III
denial,
on
benefit
from
the
basis of
the
____________________
disability,
goods, services,
of the
privileges,
includes the
opportunity
to
advantages
or
8
We recognize defendants' claim that a number of the factual
allegations advanced in the briefs supporting the appeal are not
alleged in the complaint.
Our view, however, is that in the
present procedural circumstances the opportunity should have been
given to flesh out the complaint with more detailed allegations.
If on remand the plaintiffs are unwilling or unable to do so,
that will be a quite different matter.
-14-
accommodations
of an
entity.
42
U.S.C.
12182(b);
28 C.F.R.
36.202.
The
district
court
interpreted
accommodation"
as "being limited
with
physical
definite
the
to actual
boundaries
which
term
physical structures
a
person physically
Because
"public
obtaining
of the
III claim.
erred
in finding
Plaintiffs
that Title
contend that
III of
the district
the ADA
did not
court
apply to
establishments
limited to
actual
impression
in this Circuit.
of "public
physical structures
is a
accommodation" are
question of
first
reasons we find
district court to
allow
plaintiffs
the
opportunity
to adduce
further
evidence
places of "public
Sierra Club v.
___________
Larson, 2 F.3d
______
The
entities
are
considered
public
accommodations
and then
provides an illustrative
for
entities
list which
of
an
accountant,
"professional
or
office
lawyer,"
of
service establishment[s]".
42 U.S.C.
terms do not
have
structures for
meaning
"insurance
healthcare
meaning of the
physical
an
provider,"
office,"
and
12181(7)(f).9
"other
The plain
enter.
Even
to
if the
ambiguous.
This
ambiguity,
regulations
and public
considered
policy concerns,
together
with
persuades us
agency
that the
including
considered
"travel
"public
service"
among
accommodations," Congress
contemplated that
services which do
not require
the
a person to
physically enter
one
the
imagine
existence
establishments conducting
business
providing
their customers to
utilize
their services.
an
facilities for
clearly
providers of
of
by telephone or correspondence
can
list
by mail
Likewise,
of
other
service
and
phone
without
enter in
order to
ADA, but
telephone or by
persons who
purchase the
Congress
same services
over the
entities
disputed
-16-
Our
interpretation
is
also
consistent
with
the
legislative
history of the
"invoke
the sweep of
address
the major
people with
enacted to
for the
ADA.
The
purpose of the
Congressional authority . .
areas of
discrimination faced
disabilities,"
"provide a
42 U.S.C
elimination of
42 U.S.C.
12101(b)(1).
clear,
balanced, and
101st
Cong., 2d Sess.,
pt. 2, at
available to
was
with
purpose of Title
disabilities into
American life . .
H.R.
. in a
Rep. No.
485,
The ADA
national mandate
The
reasonable manner."
goods
day-to-day by
disabilities."
the economic
. in order to
12101(b).
ADA is to
offered by
those who do
array of
private establishments
and made
not have
disabilities.
S.
Rep. No.
tread with
and ambiguous--for
based
on a disability "of
class
to participate
facilities,
entity."
42
U.S.C.
the opportunity of
in or
privileges,
benefit from
advantages,
or
12182(b)(1)(A)(1).
the
the individual or
goods, services,
accommodations
As
a matter of
of
an
bare
language, one could spend some time arguing about whether this is
intended
Indeed,
operations
impression
that
sense
either
of
accommodation
it is
Committee Report
III could
easily
primarily concerned
physical
or something
access
to
analogous, such
describing
come away
with the
with access
place
of
as access
time, there
is
nothing in
that
history that
public
provided
in the
At the
explicitly
offered.
Suppose, for
example, a company
of these ambiguities.
harbor
anyone who
of
sorts for
is
"an insurer,
hospital, or
medical service
agent,
or
entity that
administers
(3).
One might
plans, or
12201(c)(1).
there is
some
similar
However,
benefit
this is because
substance of the
indication in
at
insurance
the legislative
-18-
history that the industry received this exemption not because its
policies would
III, but
because "there is
some uncertainty
under Title
over the
possible
applies to insurance .
. . ."
See S. Rep.
___
stage it is unwise to
kind of
claim under
Title III
may be able
go beyond
to develop some
may be
a less
the
Title I
claims, this
further proceedings
the
case.
While
guidance, the
case must
be remanded
regardless of
it is
tempting
nature of the
and is subject
record and
to
to
remains in
provide further
issues are
Many goods
and
services are
sold
over
the
telephone
or
by
of Title
enter to obtain
purposes
of
the ADA
III to
physical structures
would
with
the
which persons
severely frustrate
Congress's
-19-
advantages, available
indiscriminately
MISCELLANEOUS
MISCELLANEOUS
_____________
Plaintiffs also alleged a
Ann.
and
354(A), referred
of the
Plaintiffs
serves as an
should not
to as the "Law
Civil Rights
claimed
in the
Act of
Against Discrimination,"
1965, 42
district
court
U.S.C.
1985(3).10
that Section
354-A
1144.
Because the
district court found that the ADA did not apply to defendants, it
reasoned that no disruption
result by holding
then
that Section
found Section
354-A
354-A is preempted.
preempted by
ERISA
ADA would
The
court
with respect
to
____________________
10
Plaintiffs claimed that Senter, being afflicted with AIDS,
was a member of a discrete and insular minority deserving of
protected class status under 42 U.S.C.
1985(3).
Plaintiffs'
Section
1985 claim alleged
that defendants
conspired to
discriminate against Senter through the institution of a lifetime
cap on AIDS-related medical benefits.
primarily on its
nor the
public accommodation
applied to defendants.
the employment
provisions of
these claims
the ADA
district court
42 U.S.C.
order
1985
the
district
court
in
concluding
dismissed
plaintiffs'
that
defendants
were
not
I of the
"public
We vacate
the district court's
order dismissing
_______________________________________________________
and 42 U.S.C.
1985 claim be
reviewed and
_________________________________________________________________
reinstated.
We remand for proceedings consistent with this
_________________________________________________________________
opinion.
_______
-21-