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February 6, 1998


The opinion of the court was delivered by: HENDERSON

 Edward Dunlap became disabled after a workplace injury and receives workers' compensation benefits. He claims that his former employer, the Berkeley Unified School District (BUSD), along with the Association of Bay Area Governments (ABAG), and the insurer, Business Health Services (BHS) discriminated against him on the basis of disability by denying him coverage for in-home care, transportation to treatments, a recommended surgical procedure, and other necessary medical care.

 Currently before the Court are two motions brought by defendant BHS: a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) each of plaintiff's four claims; and, a motion for partial summary judgment on plaintiff's second claim under the Rehabilitation Act. This matter came on for hearing on November 10, 1997. For the foregoing reasons, the Court now GRANTS IN PART and DENIES IN PART defendant's motion to dismiss and GRANTS the motion for summary judgment in its entirety.


 Plaintiff Edward Dunlap is a former employee of BUSD. On June 18, 1991, while working for BUSD Dunlap sustained an on-the-job injury, resulting in permanent physical disability that substantially impairs major life activities and requires regular medical treatment. In June 1993, BUSD and Dunlap settled the workers' compensation claim arising from Dunlap's workplace injury. The settlement agreement provides that Dunlap will receive regular medical care and treatment for the injuries sustained on the job. All of Dunlap's medical care and treatment for the workplace injury must be preauthorized by BHS, a health maintenance organization that manages BUSD workers' compensation claims.

 Dunlap filed the instant action against defendants BHS, ABAG, and BUSD stating four causes of action: 1) violation of Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181, et seq (ADA); 2) violation of the Rehabilitation Act, 29 U.S.C. § 794; 3) violation of the Confidentiality of Medical Information Act, California Civil Code § 56.26; and 4) the state-law tort of negligent infliction of emotional distress. Plaintiff subsequently stipulated to the dismissal of his third cause of action.


 BHS argues that plaintiff has failed to state a claim for discrimination on the basis of disability under both the ADA and the Rehabilitation Act. BHS further argues that Plaintiff's claim for negligent infliction of emotional distress is barred by California's Workers' Compensation Act.


 Dismissal is appropriate under Rule 12(b)(6) when a plaintiff's allegations fail to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). The Court must accept as true the factual allegations of the complaint and indulge all reasonable inferences to be drawn from them, construing the complaint in the light most favorable to the plaintiff. Westlands Water Dist. v. Firebaugh Canal, 10 F.3d 667, 670 (9th Cir. 1993). Unless the Court converts the Rule 12(b)(6) motion into a summary judgment motion, the court may not consider material outside of the complaint. Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). Documents attached to the complaint and incorporated therein by reference, however, are treated as part of the complaint for purposes of Rule 12(b)(6). Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). In addition, "documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss" without converting it into one for summary judgment. Branch, 14 F.3d at 454.

 The Court must construe the complaint liberally, and dismissal should not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." 5A WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357 (2d ed. 1990) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)); accord Jacobson v. Hughes Aircraft Co., 105 F.3d 1288, 1292 (9th Cir. 1997). Dismissal without leave to amend is appropriate only where a court is satisfied that the deficiencies of the complaint could not possibly be cured by amendment. Chang v. Chen, 80 F.3d 1293, 1296 (9th Cir. 1996).


 Dunlap's first claim is under Title III of the ADA. Title III applies to public accommodations and provides in relevant part that "no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns . . . or operates a place of public ...

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