United States District Court, Northern District of California, San Jose Division
December 8, 2000
JEFFREY VAN HULLE, PLAINTIFF,
PACIFIC TELESIS CORP., A.K.A PACIFIC BELL CORPORATION, CIGNA HEALTHCARE OF CALIFORNIA, PRUDENTIAL HEALTHCARE, AND DOES 1 THROUGH X, INCLUSIVE, DEFENDANTS.
The opinion of the court was delivered by: Fogel, District Judge.
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND
Defendant Cigna Healthcare of California ("Cigna") moves for
dismissal of Plaintiff's complaint. Plaintiff Jeffrey Van Hulle
("Van Hulle") opposes the motion and alternatively asks the Court
for leave to amend his complaint in order to assert a cause of
action under the Employment Retirement Income Securities Act
("ERISA"). The Court has read the moving and responding papers
and has considered the oral arguments of counsel. For the reasons
set forth below, Cigna's motion to dismiss will be granted
without leave to amend as to Van Hulle's claims under the
American with Disability Act ("ADA")*fn1 and with leave to amend
as to Van Hulle's proposed ERISA claim.
The complaint asserts that Defendants Cigna, Prudential
Healthcare, and Pacific Telesis violated the ADA. Van Hulle works
for Pacific Telesis, which contracted with Cigna and Prudential
Healthcare for administration of its employee insurance health
benefits. Van Hulle alleges that Defendants administered the
insurance policy in a discriminatory manner by refusing him
services and treating him differently because of his disability.
Specifically, the complaint alleges, inter alia, that Cigna
repeatedly delayed paying Van Hulle's claims and otherwise denied
him benefits provided by the insurance policy. Van Hulle further
alleges that Defendants retaliated against him for filing a
charge of discrimination against them with the Equal Employment
Opportunity Commission ("EEOC"). Van Hulle now asserts two
distinct theories of liability under the ADA: (1) discrimination
and failure to modify policies and procedures by a place of
public accommodation in violation of 42 U.S.C. § 12182 ("Title
III" or "Subchapter III"); and (2) retaliation in violation of
42 U.S.C. § 12203.*fn2 Cigna contends that the claims asserted
against it should be dismissed because Cigna does not fall within
the ambit of the ADA as an "employer" under Subchapter I or as "a
place of public accommodation" under Subchapter III.*fn3
II. LEGAL STANDARD
Generally, the issue to be decided on a motion to dismiss is
not whether a plaintiff's claims have merit but whether the
moving defendant has shown beyond doubt that the plaintiff can
prove no set of facts entitling him to relief. Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
The Court's review is limited to the face of the complaint,
documents referenced by the complaint and matters of which the
court may take judicial notice. Levine v. Diamanthuset, Inc.,
950 F.2d 1478, 1483 (9th Cir. 1991); In re Stac Elecs. Sec.
Litig., 89 F.3d 1399, 1405 n. 4 (9th Cir. 1996); MGIC Indem.
Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986). Ordinarily,
a complaint may be dismissed as a matter of law for only two
reasons: (1) lack of a cognizable legal theory or (2)
insufficient facts under a cognizable legal theory. Robertson v.
Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir. 1984)
(citing 2A J. Moore, Moore's Fed. Practice ¶ 12.08 at 2271
(2d ed. 1982)). When a court considers a motion to dismiss, all
allegations of the complaint are construed in the plaintiff's
favor. Sun Savings & Loan Ass'n v. Dierdorff, 825 F.2d 187, 191
(9th Cir. 1987). For a motion to dismiss to be granted, it must
appear to a certainty that the plaintiff would not be entitled to
relief under any set of facts that could be proved. Wool v.
Tandem Computers, Inc., 818 F.2d 1433, 1439 (9th Cir. 1987).
The dispositive question before the Court is whether Cigna is
subject to either Subchapter III or Section 12203 ("retaliation
provision") of the ADA.*fn4 Because
these statutory provisions arguably have different application,
the Court will address them separately.
A. Subchapter III
Subchapter III of the ADA expressly provides that "[n]o
individual shall be discriminated against on the basis of
disability in the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, or accommodations
of any place of public accommodation by any person who owns,
leases (or leases to), or operates a place of public
accommodation." 42 U.S.C. § 12182(a). The threshold issue is
whether an insurance provider such as Cigna is a place of public
accommodation within the meaning of Subchapter III. The Ninth
Circuit addressed precisely this issue in Weyer v. Twentieth
Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000).
In Weyer, an employee alleged, inter alia, that the
employer-provided insurance carrier violated Subchapter III of
the ADA because it provided greater benefits for persons with
physical disabilities than for persons with mental disabilities.
Id. The court agreed with the plaintiff that an insurance
office is a public accommodation as expressly set forth in §
12181(7), but also concluded that the term "place of public
accommodation" requires a "connection between the good or service
complained of and an actual physical place." Id. at 1114
(citation omitted).*fn5 The court thus went on to hold that
the benefit plan itself is not a good or service offered by a
place of public accommodation, Id. at 1115 (citing, Parker v.
Metropolitan Life Ins. Co., 121 F.3d 1006, 1010 (6th Cir. 1997)
(en banc)), and that therefore an insurance company in its
capacity as administrator of an employer-provided insurance plan
is not a "place of public accommodation" within the meaning of
Subchapter III. Id. [citing, Parker, 121 F.3d at 1010 ("A
benefit plan offered by an employer is not a good offered by a
place of public accommodation."); Ford v. Schering-Plough
Corp., 145 F.3d 601 (3rd Cir. 1998) (same)]; see also, Chabner
v. United of Omaha Life Ins. Co., 225 F.3d 1042 (9th Cir. 2000).
Based on the facts alleged here, Ninth Circuit precedent
clearly precludes Van Hulle's Subchapter III claim against Cigna.
The relationship between Van Hulle and Cigna came about only
because Van Hulle's employer, Pacific Telesis, contracted with
Cigna for the provision of health insurance benefits to Pacific
Telesis employees. In its capacity as an employer-provided
insurance carrier, Cigna is not a "place of public accommodation"
under Subchapter III. Accordingly, Van Hulle's Subchapter III
claim against Cigna will be dismissed without leave to amend.
B. 42 U.S.C. § 12203
The ADA prohibits discrimination in three areas: employment
("Subchapter I"); public services ("Subchapter II"); and public
accommodations ("Subchapter III"). Subchapter IV sets forth
miscellaneous provisions, some of which apply to each of the
proceeding subchapters. See, e.g., 42 U.S.C. § 12202, 12205,
12203. The retaliation provision appears in this "miscellaneous"
subchapter and provides, in relevant part, as follows:
No person shall discriminate against any individual
because such individual has opposed any act or
practice made unlawful by this Act or because such
individual made a charge, testified, assisted, or
participated in any matter in an investigation,
proceeding, or hearing under this Act.
(42 U.S.C. § 12203(a) (emphasis added).) The retaliation
provision also outlines the remedies available to a claimant
alleging retaliation by referring the claimant to the remedial
sections of the appropriate subchapter:
The remedies and procedures available under sections
12117, 12133, and 12188 of this title shall be
available to aggrieved persons for violations of
subsections (a) and (b) of this section, with respect
to subchapter I, subchapter II, and subchapter III of
this chapter, respectively.
(42 U.S.C. § 12203(c) (emphasis added).)
The threshold issue here is whether the retaliation provision's
explicit reference to Subchapters I, II, and III, operates to
limit retaliatory liability to entities which are otherwise
liable under these subchapters. Van Hulle asserts that the "plain
language" of the retaliation provision, § 12203, expressly
extends liability for retaliation to any "person," including
persons or entities not otherwise liable under the ADA. See,
Ostrach v. Regents of the University of California, 957 F. Supp. 196
(E.D.Cal. 1997) ("Since the plain meaning of `person'
includes individuals . . . it follows that plaintiff may sue the
individual defendants under the anti-retaliation provision of the
ADA."); but see, Stern v. California State Archives,
982 F. Supp. 690 (E.D.Cal. 1997) ("The significance Ostrach places
on the word `person' overlooks the structure of the ADA.").
According to Van Hulle, unlike Subchapters I, II and III of the
ADA, the reach of Section 12203 is not limited to covered
entities (i.e., "employers," "public entities," or "places of
public accommodations"). Cigna, on the other hand, asserts that
only covered entities are liable under the retaliation provision.
While the Court of Appeals for the Ninth Circuit has not
addressed this issue, other circuit courts as well as several
district courts both within and outside the Ninth Circuit have
dealt with analogous cases. See, e.g., Baird v. Rose,
192 F.3d 462 (4th Cir. 1999); Hiler v. Brown, 177 F.3d 542 (6th Cir.
1999); Stern, 982 F. Supp. 690; Ostrach, 957 F. Supp. 196;
Cable v. Department of Developmental Services, 973 F. Supp. 937
(C.D.Cal. 1997); Kautio v. Zurich Insurance Co., et al., 1998
WL 164623 (D.Kan. 1998).
In Ostrach, the plaintiff filed an ADA retaliation claim
against his employer and supervisor. Ostrach, 957 F. Supp. 196.
Compelled by the Ninth Circuit's binding precedent*fn6 the court
held that a supervisor is not liable in his individual capacity
under Subchapter I, (the employment related chapter of the ADA),
because a supervisor is not an employer.*fn7 However, the court
reasoned that "[u]nlike § 12112 which refers to the liability of
an `employer,' the retaliation provision directs that `no person
shall discriminate against any individual'" Id. at 200
(citing, 42 U.S.C. § 12203). The court therefore held that
"[s]ince the plain meaning of `person' includes individuals," and
since it "must presume that a legislature says in a statute what
it means and means what it says there,' it follows that plaintiff
may sue the individual defendants under the anti-retaliation
provision of the ADA." Id. (internal citations omitted).
However, virtually all other courts have disagreed with
Ostrach, holding that the retaliation provision does not create
individual liability in the employment context. See, e.g.,
Baird, 192 F.3d 462, Hiler, 177 F.3d 542; Stern, 982 F. Supp. 690;
Cable, 973 F. Supp. 937; Kautio, 1998 WL 164623. In
Stern, plaintiff sued her employer and individual supervisors
for violation of the ADA's retaliation provision. The court held
that "a careful reading of the relevant
provisions in light of the ADA's overall structure makes it clear
that plaintiff cannot maintain an ADA retaliation claim against
individual defendants who do not otherwise satisfy the definition
of employer." Id. at 692.
The Stern court reasoned that "[c]onsidering the ADA's
overall framework, it makes sense that the retaliation provision
broadly prohibits retaliation by a `person,' but prescribes the
available remedies according to the type of retaliation alleged."
Id. at 694 (see, § 12203(c)). "[W]hich remedies a plaintiff
is afforded, [if any], depends on whether the alleged retaliation
occurred with respect to employment, public services, or public
accommodations." Id. at 693. Since plaintiff complained about
retaliation in employment (i.e., Subchapter I claim), the court
looked to Section 12117 to determine what remedy plaintiff was
afforded. (See text of § 12203 infra p. 5:3-9.) The court
concluded that in order for a Plaintiff to be afforded a remedy
against a defendant under § 12117, the defendant must meet the
definition of "employer."*fn8 Since the defendants in that case
did not meet this definition, the court concluded that they could
not be held liable for retaliation in the workplace under the
The Court finds Stern's statutory analysis persuasive and
applicable here. Indeed, a close reading of Section 12203(c)
indicates that the remedy a retaliation claimant is afforded
depends on whether the alleged retaliation occurred with respect
to employment, public services or public accommodations. For
instance, a claimant "who complains that a `person' retaliated
against him or her in the context of employment is referred to
Section 12117," which is the remedial provision for Subchapter I.
Stern, 982 F. Supp. at 693. In the same fashion, a claimant
asserting that a "person" retaliated against him or her in the
context of public services is referred to Section 12133, the
remedial provision for Subchapter II. Id. "An aggrieved party
who complains that a "person" retaliated against him or her in
the context of public accommodation is referred to Section
12188," the remedial provision for Subchapter III.*fn9 Id. By
contrast, Section 12203(c) provides no remedy for a situation
in which the alleged retaliation did not occur with respect to
employment, public services, or public accommodations, (as set
forth in Subchapters I, II, and III of the ADA, respectively).
The most reasonable inference to be drawn from the absence of a
remedial provision is that Congress never intended to create a
cause of action in such cases. This Court thus concludes that a
plaintiff cannot maintain an ADA retaliation claim against
entities which are not otherwise subject to Subchapters I, II,
and III of the ADA.
Based on the foregoing, what remedies, if any, Van Hulle has
"depends on whether the alleged retaliation occurred with respect
to employment, public services, or public accommodations." Id.
at 693. Although Van Hulle alleges conclusorily that the
retaliation against him occurred with respect to public
accommodations and employment, the Court's determinations herein
that Cigna is not a covered entity under Subchapter I and II
preclude Van Hulle from asserting a retaliation claim against
Cigna on either of these grounds.*fn10 Accordingly, Van Hulle's
retaliation claim against Cigna also will be dismissed without
leave to amend.
C. ERISA Claim and Leave to Amend
The Court in its discretion will grant Plaintiff leave to amend
so that he may attempt to allege a cause of action under the
Employment Retirement Income Securities Act ("ERISA")
(29 U.S.C. § 1001, et seq.).
IT IS HEREBY ORDERED that Cigna's motion to dismiss the ADA
claims alleged against it be GRANTED. Van Hulle shall have thirty
(30) days within which to amend his complaint to assert an ERISA