Johnson v. K Mart Corporation, 99-14563

• Decision Date: 21 November 2001
• Docket Number: No. 99-14563,99-14563
• Citation: 273 F.3d 1035
• Parties: (11th Cir. 2001) JAMES JOHNSON, Plaintiff-Appellant, v. K MART CORPORATION, Defendant-Appellee
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1035

273 F.3d 1035 (11th Cir. 2001) JAMES JOHNSON, Plaintiff-Appellant,
v.
K MART CORPORATION, Defendant-Appellee. No. 99-14563 UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT November 21, 2001
Order Granting Rehearing En Banc Dec. 19, 2001.

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Appeal from the United States District Court for the Middle District of Florida

Before CARNES and BARKETT,

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Circuit Judges, and POLLAK^*, District Judge.

POLLAK, District Judge:

This case presents two questions regarding the interpretation of Title I of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., in the context of the District Court's grant of a motion to dismiss. In Part I, we consider the question whether a former employee--as against a current employee or an applicant--is eligible to file suit under 42 U.S.C. § 12112(a), which makes it unlawful to "discriminate [with respect to employment] against a qualified individual with a disability because of the disability of such individual . . . ." This court has previously--over strong dissent--answered the question in the negative. See Gonzales v. Garner Food Services, Inc., 89 F.3d 1523 (11th Cir. 1996), reh'g denied, 104 F.3d 373 (11th Cir. 1996), cert. denied, 520 U.S. 1229 (1997). Herein we revisit this question in light of the principles set forth in a subsequent Supreme Court opinion, Robinson v. Shell Oil Co., 519 U.S. 337 (1997), which addressed the same question as it arose under a cognate statute, Title VII of the Civil Rights Act of 1964, answering the question in the affirmative. In our judgment, Robinson mandates the conclusion that Gonzales is no longer good law and must be deemed overruled. Accordingly, appellant is eligible to file suit under Title I. In Part II, we proceed to the substantive question whether an employee can state a claim for a violation of the ADA against a private employer when the employer has offered as a fringe benefit a long-term disability ("LTD") insurance plan that provides less generous benefits for those employees who become unable to work as a result of a mental disability than for those rendered unable to work due to a physical disability.

We begin with a brief description of the factual basis of appellant's claim. Because the judgment under review granted the defendant's motion to dismiss, our factual recital assumes the truth of the facts alleged in the complaint.

Appellant James Johnson worked for K Mart Corporation ("K Mart") for thirty years beginning in 1967. In 1996, appellant, who was then the manager of a K Mart store in Tampa, Florida, sought medical treatment for severe depression and emotional illness. Appellant continued his employment with K Mart until October, 1997, when his physician advised him to stop working due to his mental illness. At that time, Johnson applied for and received long-term disability benefits from K Mart. Under K Mart's LTD plan, employees who are disabled due to a mental illness may receive salary-replacement benefits for two years, whereas employees disabled due to a physical illness may receive such benefits until age 65.

Johnson filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on July 10, 1998, claiming that the cap on mental health-related disability benefits violated the ADA. After being issued a Right to Sue letter by the EEOC, appellant brought this action in the United States District Court for the Middle District of Florida on November 23, 1998. Appellant amended his complaint in February, 1999, after which K Mart responded by filing a motion to dismiss on two grounds: (1) that appellant was not within the protective ambit of § 12112(a) because, as a former employee,

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he was not a "qualified individual with a disability" as that phrase is defined, for ADA purposes, in 42 U.S.C. § 12111(8);¹ and (2) that providing different levels of long-term disability benefits to individuals with mental and physical disabilities did not constitute discrimination within the meaning of the ADA. The District Court granted K Mart's motion to dismiss without reaching the question whether Johnson, as a former employee, was eligible to bring this action, basing its dismissal solely on the finding that K Mart's differential treatment of mental and physical illnesses was not a violation of the ADA. The District Court voiced agreement with circuits that have rejected the argument that an employer violates the ADA by providing differential levels of long-term disability benefits to employees with physical and mental disabilities.

Johnson filed a timely appeal. The EEOC, as amicus curiae, filed a brief supporting plaintiff-appellant on both grounds raised by K Mart in its motion to dismiss.

DISCUSSION

This court reviews de novo a district court's order dismissing an action for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). We may affirm the District Court's dismissal of Johnson's complaint only if it is clear that Johnson has not alleged a set of facts that would, if established at trial, entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385, 1387 (11th Cir. 1998).

I Whether Former Employees are Eligible to File Suit Under Title I of the ADA

We start with the question whether a former employee who is no longer able to work because of a disability is eligible to challenge a limitation on post-employment benefits under the ADA. We commence with an examination of the parties' arguments with respect to the coverage of former employees because this question is logically antecedent to a consideration of the merits of appellant's claim.² Having answered the question whether Title I covers former employees in the negative in Gonzales, we agree with the EEOC that it is appropriate in the context of this case to reexamine the vitality of the Gonzales decision in light of the Supreme Court's recent analysis in Robinson (holding that § 704(a) of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e-3(a), allows suit by former employees). See Cargill v. Turpin, 120 F.3d 1366, 1386 (11th Cir.), cert. denied, 523 U.S. 1080 (1998) ("[O]nly the Supreme Court or this court sitting en banc can judicially overrule a prior panel decision").

Johnson's entitlement to bring this action turns on the construction of a number of related sub-sections of the ADA. Our basic task is to construe 42 U.S.C. § 12112(a), which contains the general rule under Title I: "No covered entity shall discriminate against a qualified individual

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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." For help with this task, we look to the statutory definitions of the key terms "employee" and "qualified individual with a disability." "The term 'employee' means an individual employed by an employer." § 12111(4). The term "qualified individual with a disability" ("QID") 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.

42 U.S.C. § 12111(8). The general rule under Title I is further illuminated by the statutory definition of the term "discriminate" in § 12112(b), which reads in part:

As used in subsection (a) of this section, the term "discriminate" includes--

(1) limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of the disability of such applicant or employee;

(2) participating in a contractual or other arrangement or relationship that has the effect of subjecting a covered entity's qualified applicant or employee with a disability to the discrimination prohibited by this subchapter (such relationship includes a relationship with an employment or referral agency, labor union, an organization providing fringe benefits to an employee of the covered entity, or an organization providing training and apprenticeship programs);

(3) utilizing standards, criteria, or methods of administration--

(A) that have the effect of discrimination on the basis of disability; or

(B) that perpetuate the discrimination of others who are subject to common administrative control[.]³

Before engaging in the statutory analysis required, we summarize the two cases--Gonzales and Robinson--that will

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guide our assessment of the cumulative force of these sections, and, thus, of the scope of the protection provided by § 12112(a).

Gonzales was the first in a fractured series of decisions rendered by courts of appeals addressing former employees' eligibility to bring claims under the ADA.⁴ In Gonzales we accepted as true the following description of the facts: Timothy Bourgeois was employed by a restaurant. After Bourgeois submitted health insurance claims for medical treatment of AIDS under his employer's health insurance plan, the employer discharged Bourgeois in an attempt to limit future health insurance claims. Following his termination, Bourgeois continued his health insurance benefit coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"). See 89 F.3d at 1524. The employer then imposed a cap for AIDS-related treatment on health insurance benefit coverage at least in part because Bourgeois elected to continue in the benefit plan after he was discharged. After Bourgeois' death, August Gonzales, as the administrator of Bourgeois' estate, filed suit in the United States District Court for the Northern District of Georgia, and the court granted a motion to dismiss for failure to state a cognizable claim. On appeal, this court held--over a dissent--that the language of the ADA codified at 42 U.S.C. §...