198 F.3d 1104 (9th Cir. 2000), 98-35215, Weyer v. Twentieth Century Fox

Docket Nº:98-35215
Citation:198 F.3d 1104
Party Name:HELEN WEYER, WILLIAM WEYER, and the marital community composed thereof, Plaintiffs-Appellants, v. TWENTIETH CENTURY FOX FILM CORPORATION, a Delaware corporation doing business in Washington, UNUM LIFE INSURANCE COMPANY OF AMERICA, a Nevada corporation doing business in Washington, Defendants-Appellees.
Case Date:January 03, 2000
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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198 F.3d 1104 (9th Cir. 2000)

HELEN WEYER, WILLIAM WEYER, and the marital community composed thereof, Plaintiffs-Appellants,

v.

TWENTIETH CENTURY FOX FILM CORPORATION, a Delaware corporation doing business in Washington, UNUM LIFE INSURANCE COMPANY OF AMERICA, a Nevada corporation doing business in Washington, Defendants-Appellees.

No. 98-35215

United States Court of Appeals, Ninth Circuit

January 3, 2000

Argued and Submitted May 7, 1999

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COUNSEL: Lonnie Davis, Disabilities Law Project, Seattle, WA, for the appellants.

Jeffrey A. Hollingsworth & Zane A. Brown, Jr., Perkins Coie LLP., Seattle, WA, for appellee Twentieth Century Fox Film Corp.

D. Michael Reilly & Todd L. Nunn, Lane Powell Spears Lubersky LLP, for appellee UNUM Life Insurance Company.

Stephen C. Monkarsh & Donna D. Melby, Sedgwick, Detert, Moran & Arnold, Los Angeles, CA, for appellee UNUM Life Insurance Company.

Ann M. Courtney, UNUM Life Insurance Company of America, Portland, Me, for appellee UNUM Life Insurance Company

Robert J. Gregory, Equal Employment Opportunity Commission, Washington, D.C., as amicus curiae in support of appellants.

Gregory G. Katsas & Clinton R. Pinyan, Jones, Day, Reavis & Pogue, Washington D.C., as amicus curie for American Council of Life Insurance and Health Insurance Association of America in support of appellees.

Appeal from the United States District Court for the Western District of Washington; William L. Dwyer, District Judge, Presiding. D.C. No. CV-96-01661-WLD

Before: Robert R. Beezer, Charles Wiggins, and Andrew J. Kleinfeld, Circuit Judges.

OPINION

KLEINFELD, Circuit Judge:

This case concerns whether an employer and its insurance administrator can offer a group disability insurance policy as a fringe benefit that gives more benefits for physical disabilities than for mental disabilities, without violating the Americans with Disabilities Act or related Washington statutes.

I. Facts

Helen Weyer worked for Twentieth Century Fox Film Corporation ("Fox") as an Administrative Coordinator. As one of its fringe benefits, Fox offered Weyer and the rest of its employees the chance to buy a favorable group long-term disability insurance policy administered by UNUM Life Insurance Company of America ("UNUM"). Weyer chose to buy the policy. Although she paid for the premiums herself, she paid a discounted group rate rather than a substantially higher individual policy rate. In addition, because Weyer enrolled in the group policy, she did not have to take the standard physical exam for individual policies.

Under the policy, individuals who were disabled because of mental illness, alcoholism, or drug abuse could only get benefits for twenty-four months.1 Individuals with

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physical disabilities were not subject to the same limitation and could get benefits until age 65.

In March 1994, Weyer became unable to work because of severe depression. She was totally disabled and has remained so during all times relevant to this lawsuit. Because of her disability, Weyer quit working at Fox and got benefits under the policy for two years. In March 1996, Weyer stopped getting benefits because her disability from depression, which was considered a mental illness, was subject to the twenty-four month limitation.

When Fox chose the UNUM policy, UNUM had another policy that did not contain the twenty-four month limit. The policy without the limit, however, was rare in the industry and more expensive because of the increased risk. Though the employees, not Fox, paid the premiums, Fox sought to avoid expensive plan features that would make the policy less desirable as a fringe benefit, by deterring healthy employees from buying the group policy.

Weyer sued Fox and UNUM under Titles I and III of the Americans with Disabilities Act ("Act") and related Washington statutes for offering and administering a plan that discriminated against those with mental disabilities in favor of those with physical disabilities. The district court granted summary judgment for Fox and UNUM on all counts, and Weyer appeals.

II. Analysis

We review a district court's grant of summary judgment de novo.2 We determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law.3

A. Is Weyer a "qualified individual" under Title I?

Title I of the Act says that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to . . . terms, conditions, and privileges of employment."4 The plain language of the Act thus allows only those who are "qualified individuals" to bring suit. The Act defines a "qualified individual" as "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."5

"An ADA plaintiff bears the burden of proving that she is a `qualified individual with a disability' -that is, a person `who, with or without reasonable accommodation, can perform the essential functions' of her job."6 A totally disabled person who cannot "perform the essential functions of the employment position" with or without reasonable accommodations thus cannot be a "qualified individual " entitled to sue under Title I of the Act. We so held in Kennedy v. Applause, Inc. 7

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There, we explained that "[b]ecause [the plaintiff] was totally disabled, there was no genuine issue [of fact] that she could have performed her job with the proposed, or any other, accommodation."8

Weyer got Social Security benefits for total disability, identified herself as "totally disabled" to Fox and UNUM as late as September 1996, and presented no evidence that she could perform the essential functions of her former employment position with or without reasonable accommodation. Her brief concedes that "[t]here is no dispute that Ms. Weyer is totally disabled."9 She therefore did not raise a material issue of fact as to whether she was a "qualified individual" entitled to sue under Title I.10

That Weyer seeks a remedy for discrimination in fringe benefits applicable to a time following her employment does not alter the plain statutory requirement that she must be able to "perform the essential functions of the employment position" to sue under Title I of the Act. Five circuits have so held, and we are not persuaded to decide the issue differently. In Parker v. Metropolitan Life Ins. Co., 11 the Sixth Circuit dealt with a case that is materially identical to this one. The plaintiff in Parker was totally disabled from depression and got benefits under a policy with the same two year limitation on mental disabilities.12 When the benefits ended after two years, the employee sued under Title I. The Sixth Circuit held that the plaintiff had no standing to sue under Title I because she "was at no time a `qualified individual with a disability' " under the plain meaning of the statute.13 The Sixth Circuit explained that "[a]t the time she could `perform the essential functions' of her job, she was not disabled for purposes of her long term disability claim, and therefore was not covered by the Disabilities Act, and at the time her insurance benefits were terminated, she could no longer perform her job."9 14 While the Sixth Circuit said that excluding those in the plaintiff's position might have resulted from Congressional "oversight," they declined "to rewrite the statute in a way that conflicts with what appears to be fairly clear language."15 "Such an oversight is . . . for Congress to remedy."16 By quoting this language from the opinion, we do not intimate that the statutory language resulted from oversight; Congress may have intentionally limited the scope of the Act as it did.

Similarly, the Seventh Circuit in EEOC v. CNA Ins. Cos.17 held that a totally disabled plaintiff could not sue under Title I for alleged discrimination in a similar long-term disability policy. The Seventh Circuit noted that Title I expressly refers to the ability to perform a job, not the ability to receive benefit checks,18 and said that the plaintiff's efforts to shoehorn "a person who is no longer able to hold an `employment position' " into the definition of a "qualified individual" were "strained."19

The Eighth Circuit in Beauford v. Father Flanagan's Boys' Home 20 held that a totally disabled plaintiff alleging discrimination

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in the employer's refusal to approve certain fringe benefits could not sue under similar language in the Rehabilitation Act.21 The Eighth Circuit reasoned that because "Beauford admits that she cannot perform the essential functions of the job in question and further states that she will be unable to do so in the near future, . . . she does not meet the prerequisites to be protected under this provision."22

[B]oth the language of the statute and its interpreta tion by the Supreme Court [in Southeastern Commu nity College v. Davis23] indicate that section 504 was designed to prohibit discrimination within the ambit of an employment relationship in which the em ployee is potentially able to do the job in question . Though it may seem undesirable to discriminate against a handicapped employee who is no longer able to do his or her job, this sort of discrimination is simply not within the protection of section 504. 24

The Eleventh Circuit followed suit in Gonzales v. Garner Food Services, Inc.,25 in which it held that a plaintiff whose health benefits...

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