Seff v. Broward Cnty., 11–12217.

• Decision Date: 20 August 2012
• Docket Number: No. 11–12217.,11–12217.
• Citation: 691 F.3d 1221,23 Fla. L. Weekly Fed. C 1432,26 A.D. Cases 1153,45 NDLR P 212
• Parties: Bradley SEFF, Plaintiff–Appellant, v. BROWARD COUNTY, FLORIDA, a political subdivision of the State of Florida, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

691 F.3d 1221

26 A.D. Cases 1153

45 NDLR P 212

23 Fla. L. Weekly Fed. C 1432

Bradley SEFF, Plaintiff–Appellant,

v.BROWARD COUNTY, FLORIDA, a political subdivision of the State of Florida, Defendant–Appellee.

No. 11–12217.

United States Court of Appeals,Eleventh Circuit.

Aug. 20, 2012.

Daniel R. Levine, Adam S. Chotiner, Robin I. Frank, Shapiro, Blasi, Wasseman & Gora, PA, Boca Raton, FL, for Plaintiff–Appellant.

James David Rowlee, Adam Katzman, Jeffrey J. Newton, Benjamin Salzillo, Broward Cty. Attorney's Office, Fort Lauderdale, FL, for Defendant–Appellee.

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

Before MARCUS and BLACK, Circuit

Judges, and EVANS,^* District Judge.

BLACK, Circuit Judge:

Appellant Bradley Seff filed this class action lawsuit, alleging that Appellee Broward County's (Broward's) employee wellness program violated the Americans with Disabilities Act of 1990(ADA), 42 U.S.C. § 12101 et seq. The district court granted Broward's motion for summary judgment, finding the employee wellness program fell within the ADA's safe harbor provision for insurance plans. We affirm.

I. BACKGROUND

Broward offers its employees a group health insurance plan. In 2009, employees enrolling in Broward's group plan became eligible to participate in a new employee wellness program sponsored by Broward's group health insurer, Coventry Healthcare (formerly known as VISTA).

The employee wellness program consisted of two components: a biometric screening, which entailed a “finger stick for glucose and cholesterol,” and an “online Health Risk Assessment questionnaire.” Coventry Healthcare used information gathered from the screening and questionnaire to identify Broward employees who had one of five disease states: asthma, hypertension, diabetes, congestive heart failure, or kidney disease. Employees suffering from any of the five disease states received the opportunity to participate in a disease management coaching program, after which they became eligible to receive co-pay waivers for certain medications.

Participation in the employee wellness program was not a condition for enrollment in Broward's group health plan. To increase participation in the employee wellness program, however, Broward imposed a $20 charge beginning in April 2010 on each biweekly paycheck issued to employees who enrolled in the group health insurance plan but refused to participate in the employee wellness program. Broward suspended the charges on January 1, 2011.

Seff, a former Broward employee who incurred the $20 charges on his paychecks from June 2010 until January 1, 2011, filed this class action,¹ alleging that the employee wellness program's biometric screening and online Health Risk Assessment questionnaire violated the ADA's prohibition on non-voluntary medical examinations and disability-related inquiries. On the parties' cross-motions for summary judgment, the district court granted Broward's motion, finding that the ADA's safe harbor provision for insurance plans exempted the employee wellness program from any potentially relevant ADA prohibitions. Because it found that the employee wellness program fell within the ADA's safe harbor provision, the district court declined to address whether the program imposed non-voluntary examinations or inquiries that would have otherwise been prohibited under the ADA.

II. STANDARD OF REVIEW

This Court “reviews a district court's grant of summary judgment de novo, applying the same legal standards used by the district court.” Krutzig v. Pulte Home Corp., 602 F.3d 1231, 1234 (11th Cir.2010). “We will affirm if, after construing the evidence in the light most favorable to the non-moving party, we find that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.” Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1263–64 (11th Cir.2010). We “may not weigh conflicting evidence or make credibility determinations of [our] own. If the record presents disputed issues of fact, the court may not decide them ....” FindWhat Investor Grp. v. FindWhat.com, 658 F.3d 1282, 1307 (11th Cir.2011) (citation omitted).

III. DISCUSSION

Under the ADA, a “covered entity” is prohibited from “requir[ing] a medical examination” and “mak[ing] inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A); see also Williams v. Motorola, Inc., 303 F.3d 1284, 1290–91 (11th Cir.2002).

The ADA, however, contains a safe harbor provision that exempts certain insurance plans from the ADA's general prohibitions, including the prohibition on “required” medical examinations and disability-related inquiries. 42 U.S.C. § 12201(c)(2). The safe harbor provision states that the ADA “shall not be construed” as prohibiting a covered entity “from establishing, sponsoring, observing or administering the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law.” Id.

The district court granted summary judgment in Broward's favor based on its conclusion that the employee wellness program fell within the ADA's safe harbor provision. In reaching its conclusion, the district court found that the employee wellness program qualified as a “term[ ] of a bona fide benefit plan” within the meaning of the safe harbor provision because the employee wellness program constituted a “term” of Broward's group health plan. Seff's only argument on appeal is that the district court improperly ignored the deposition testimony of Lisa Morrison, which he claims gave rise to a dispute of material fact regarding the employee wellness program's status as a “term[ ] of a bona fide benefit plan” under the safe harbor provision.²

Morrison, who was Broward's corporate representative and acting benefits manager, testified that the employee wellness program was not a term of Broward's benefit plan and that the employee wellness program was not a term contained in Broward's health and pharmacy plans.³ Her testimony is subject to two interpretations. First, the testimony may be read as expressing...