Thomas v. Garner Food Services ( 1996 )


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  •                    United States Court of Appeals,
    
                              Eleventh Circuit.
    
                                  No. 95-8533.
    
       August GONZALES, as Administrator of the Estate of Timothy
    Bourgeois, deceased, Plaintiff-Appellant,
    
                                       v.
    
        GARNER FOOD SERVICES, INC.; Willis Corroon Administrative
    Services Corporation;    Willis Corroon Corporation of Georgia,
    Defendants,
    
                 Garner Fast Foods, Inc., Defendant-Appellee,
    
    American Association of Retired Persons (AARP); Equal Employment
    Opportunity Commission (EEOC);     American Medical Association,
    American Public Health Association, American Foundation for AIDS
    Research, Gay Men's Health Crisis; American Civil Liberties Union,
    the ARC, Gay and Lesbian Advocates and Defenders, Inc., National
    Alliance for the Mentally Ill, National Association of People With
    AIDS, National Association of Protection and Advocacy Systems,
    National Minority AIDS Council, Equal Employment Advisory Council,
    Amici Curiae.
    
                                  Aug. 2, 1996.
    
    Appeal from the United States District Court for the Northern
    District of Georgia. (No. 1:93-CV-1639-JOF), J. Owen Forrester,
    Judge.
    
    Before ANDERSON and BLACK, Circuit Judges, and HENDERSON, Senior
    Circuit Judge.
    
         BLACK, Circuit Judge:
    
         Appellant August Gonzales filed this action under Title I of
    
    the Americans With Disabilities Act of 1990 (ADA), 1 alleging that
    Defendants    discriminated   against   a    former   employee,   Timothy
    
    Bourgeois, by imposing a cap for AIDS-related treatment on health
    
    insurance benefit coverage Bourgeois elected to continue following
    
    
         1
          42 U.S.C. § 12101 et seq. (1994). Appellant initially
    sought relief under both § 510 of the Employee Retirement Income
    Security Act of 1974 (ERISA), 29 U.S.C. § 1140 (1994), and the
    ADA, but subsequently dismissed the ERISA claim.
    his termination.   The district court granted a motion to dismiss
    
    jointly filed by Garner Fast Foods, Inc. (GFF) and Garner Food
    
    Services, Inc. (GFS).     Thereafter, Appellant dismissed claims
    
    against all Defendants other than GFF and moved for reconsideration
    
    of the order of dismissal.   This motion was denied, and Appellant
    
    appeals.   We affirm.
    
                              I. BACKGROUND2
    
         Bourgeois was employed at a Hardee's restaurant, owned and
    
    operated by GFS.   GFS sponsored and administered a group welfare
    
    benefit plan which provided health insurance coverage up to a $1
    
    million lifetime limit.      Bourgeois participated in the health
    
    insurance benefit plan through his employment.
    
         Bourgeois was diagnosed with AIDS in February 1991, and GFS
    
    learned of his condition when he submitted health insurance claims
    
    for medical treatment.   GFS discharged him in April 1991 to avoid
    
    paying future health insurance claims.   Following his termination,
    
    Bourgeois paid the necessary premiums to continue his health
    
    insurance benefit coverage pursuant to the Consolidated Omnibus
    
    Budget Reconciliation Act of 1985 (COBRA).3
    
         At least partly because of Bourgeois' continued participation
    
    in the health insurance benefit plan after his discharge, GFS
    
         2
          Since the district court decided this case on a motion to
    dismiss, we have taken the allegations in Appellant's complaint
    as true and have construed them liberally in favor of Appellant.
    See Walker Process Equip., Inc. v. Food Mach. and Chem. Corp.,
    
    382 U.S. 172
    , 174-75, 
    86 S. Ct. 347
    , 349, 
    15 L. Ed. 2d 247
     (1965).
         3
          29 U.S.C. § 1161 et seq. (1994). COBRA amended ERISA to
    require each employer to allow former employees to elect to
    continue coverage under the employer's group health insurance
    plan for up to 18 months following termination of employment.
    Id.
    amended the plan on October 1, 1991, to cap AIDS-related treatment
    
    to $10,000 annually with a lifetime maximum limit of $40,000.                  GFS
    
    ceased operations on March 31, 1992.               Thereafter, GFF continued
    
    GFS'       operations,   and    became   the   sponsor   of   Bourgeois'   plan.4
    
    Before he died on September 6, 1992, Bourgeois had exhausted the
    
    benefits available to him under the AIDS cap limit and was denied
    
    payment for claims submitted in excess, totaling approximately
    
    $90,000.
    
                                   II. STANDARD OF REVIEW
    
                The   district   court's     denial   of   Appellant's    motion   for
    
    reconsideration is reviewed for abuse of discretion.                 See Region 8
    
    Forest Serv. Timber Purchasers Council v. Alcock, 
    993 F.2d 800
    , 806
    
    (11th Cir.1993), cert. denied, --- U.S. ----, 
    114 S. Ct. 683
    , 
    126 L. Ed. 2d 651
     (1994).            Since our review requires us to focus on
    
    conclusions of law made by the district court in granting the
    
    motion to dismiss, we review these questions of law de novo.                   See
    
    O'Reilly v. Ceuleers, 
    912 F.2d 1383
    , 1385 (11th Cir.1990).
    
                                      III. DISCUSSION
    
           The ADA was enacted on July 26, 1990, but did not become
    
    
    
           4
          At the outset, GFF denies liability on the bases that
    Bourgeois worked only for GFS and not GFF and never sought
    employment from GFF. Citing this Court's decision in Bud Antle,
    Inc. v. Eastern Foods, Inc., 
    758 F.2d 1451
     (11th Cir.1985),
    Appellant counters that GFF is liable under theories of de facto
    merger and mere continuation because GFF took over the operations
    of the defunct GFS with identical officers, directors, and
    virtually an identical sole shareholder, maintained the same
    health plan and AIDS cap first implemented by GFS, and assumed
    all liabilities of GFS. We decline to resolve this issue. Given
    our holding that Appellant is not entitled to relief under the
    ADA, GFF is not liable even if it is a successor in interest to
    GFS.
    effective until July 26, 1992.5         Pub.L. No. 101-336, § 108, 104
    
    Stat. 327, 337 (1990).        Title I of the ADA addresses disability
    
    discrimination by employers.6         As applied to private employers,
    
    Title I is not retroactive.          See O'Bryant v. City of Midland, 
    9 F.3d 421
    , 422 (5th Cir.1993);           see also 1990 U.S.C.C.A.N. 601
    
    (statement by President George Bush upon signing S. 933).               Against
    
    this background, courts have concluded that Title I applies only to
    
    wrongful acts committed after the effective date of the ADA.               See,
    
    e.g., O'Bryant, 9 F.3d at 422.        Since the AIDS cap was implemented
    
    in October 1991, prior to the effective date of the ADA, GFF argues
    
    from the outset that Appellant's claim is barred.
    
         Appellant counters that his claim is actionable on the basis
    
    that the AIDS cap "endured" after the effective date of the ADA,
    
    thereby making GFF's refusal to pay health benefits from then until
    
    Bourgeois' death a continuing violation of the Act. In determining
    
    whether   maintenance    of    the   AIDS   cap   after    July   26,    1992,
    
    constituted a continuing violation of the ADA, this Court must
    
    distinguish    between   the    present     consequences    of    a   one-time
    
    violation, which would not qualify as a continuing violation, and
    
    the continuation of the violation into the present, which would.
    
    See Beavers v. American Cast Iron Pipe Co., 
    975 F.2d 792
    , 796 (11th
    
    Cir.1992).    As did the district court, we will assume for purposes
    
         5
          The dissent refers to the two year span between the
    enactment and effective dates as a "phase-in period," the purpose
    of which was "to give employers time to take those actions
    necessary to come into compliance with the requirements of the
    Act"; however, the dissent cites no authority indicating this
    was Congress' intent.
         6
          It is undisputed that GFS met the ADA definition of
    "employer." See 42 U.S.C. § 12111(5)(A).
    of   our   analysis   that    the   denial    of   AIDS-related   health    care
    
    benefits after the effective date of the ADA could constitute a
    
    continuing violation of the Act.           See Bazemore v. Friday, 
    478 U.S. 385
    , 395, 
    106 S. Ct. 3000
    , 3006, 
    92 L. Ed. 2d 315
     (1986) ("A pattern
    
    or practice that would have constituted a violation of Title VII,
    
    but for the fact that the statute had not yet become effective,
    
    became a violation upon Title VII's effective date.");               Beavers,
    
    975 F.2d at 797-98 (holding that the continued maintenance of a
    
    pre-Title VII discriminatory benefits policy is actionable after
    
    the effective date of Title VII as a continuing violation of the
    
    statute).
    
          GFF argues that even if maintaining the AIDS cap beyond the
    
    effective date of the ADA could constitute a continuing violation,
    
    Appellant fails to state a prima facie case of discrimination under
    
    Title I of the Act.      The Title I general rule states:         "No covered
    
    entity shall discriminate against a qualified individual 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."             42 U.S.C.
    
    § 12112(a) (emphasis supplied).            A "qualified individual with a
    
    disability" (QID) is defined 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...."7        Id. § 12111(8) (emphasis supplied).
    
          7
          Thus, § 12112(a) does not utilize the term "individual" in
    a broad manner, as suggested by the dissent, but rather within a
    specific term of art—"qualified individual with a
          The    parties   do   not   dispute   that    AIDS    is   a   disability
    
    recognized under the ADA. 8       It is further undisputed that fringe
    
    benefits, such as employer-provided health benefits, are one set of
    
    the "terms, conditions, and privileges of employment" protected
    
    from unlawful discrimination under the ADA.9                 Thus, Appellant
    
    reasons, once Bourgeois took advantage of the opportunity to
    
    participate in the group health insurance plan, he was entitled to
    
    be provided with health insurance in a nondiscriminatory manner.
    
              Bourgeois does not satisfy the QID requirement under the
    
    plain language of the ADA, however, because he neither held nor
    
    desired to hold a position with GFF at or subsequent to the time
    
    the   alleged    discriminatory     conduct   was    committed.        Rather,
    
    Bourgeois was a participant in the health benefit plan only by
    
    virtue of his status as a former employee.                 Appellant does not
    
    contest this conclusion, but argues that since the fruits of many
    
    fringe benefits are realized during the post-employment period,
    
    Congress must have intended former employees to be protected under
    
    
    
    disability"—explicitly defined in § 12111(8).
          8
          See 28 C.F.R. §§ 35.104 (defining "disability" to include
    HIV disease at (1)(ii)), 36.104 (same at (1)(iii)) (1995).
          9
          This is clear from the statute, see, e.g., 42 U.S.C. §§
    12101(a)(5), 12112(a), (b)(2), (b)(4), the legislative history,
    see H.R.Rep. No. 485(II), 101st Cong., 2d Sess. 59 (1990),
    reprinted in 1990 U.S.C.C.A.N. 303, 341 ("[E]mployers may not
    deny health insurance coverage completely to an individual based
    on the person's diagnosis or disability."); H.R.Rep. No.
    485(II), 101st Cong., 2d Sess. 71 (1990), reprinted in 1990
    U.S.C.C.A.N. 445, 494, and the interpretive regulations, see,
    e.g., 29 C.F.R. § 1630.4(f) (it is unlawful for an employer to
    discriminate on the basis of disability in the provision of
    "[f]ringe benefits available by virtue of employment"); 56
    Fed.Reg. 35726, 35746 (July 26, 1991) (EEOC Interpretative
    Guidance on 29 C.F.R. §§ 1630.4, 1630.5).
    the ADA as well.
    
         Neither the QID definition nor the ADA's definitions of
    
    "employee"   and   "discriminate"    provide   support   for     Appellant's
    
    position.    The ADA defines "employee" as "an individual
                                                            employed by
    
    an employer. "10   Id. § 12111(4) (emphasis supplied).           Further, §
    
    12112(b) provides:
    
         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 ...;
    
                ....
    
              (5)(A) not making reasonable accommodations to the known
         physical or mental limitations of an     otherwise qualified
         individual with a disability who is an applicant or employee
         ... or
    
              (B) denying employment opportunities to a job applicant
         or employee who is an otherwise qualified individual with a
         disability ...;
    
              (6) using qualification standards, employment tests or
         other selection criteria that screen out or tend to screen out
         an individual with a disability or a class of individuals with
         disabilities unless the standard, test or other selection
         criteria, as used by the covered entity, is shown to be
         job-related for the position in question and is consistent
         with business necessity.11
    
         10
          This definition directly rebuts the suggestion of the
    dissent that "nothing in the plain meaning of [the] term
    ["employee'] limits its scope to current employees as opposed to
    former employees."
         11
          Although the dissent maintains § 12112(b)(6) does not
    specifically "refer to employees or applicants," the plain
    language of the provision contemplates discrimination encountered
    solely by job applicants and current employees.
    Id. § 12112(b) (emphases supplied).
    
          Moreover, the legislative history of the ADA specifically
    
    states    that   the   purpose   of   including     the   phrase   "essential
    
    functions" within the QID definition is to "ensure that employers
    
    can   continue    to   require   that   all   applicants     and   employees,
    
    including    those     with   disabilities,   are    able   to   perform   the
    
    essential, i.e., the non-marginal functions of the job in quesiton
    
    [sic]."     H.R.Rep. No. 485(II), 101st Cong., 2d Sess. 55 (1990),
    
    reprinted in 1990 U.S.C.C.A.N. 303, 337 (emphasis supplied). Thus,
    
    a review of both the ADA and its legislative history suggests that
    
    Congress intended to limit the protection of Title I to either
    
    employees performing, or job applicants who apply and can perform,
    
    the essential functions of available jobs which their employers
    
    maintain.
    
          Appellant argues against such a conclusion on the basis that
    
    other legislative history of the ADA, as well as Equal Employment
    
    Opportunity Commission (EEOC) interpretive guidance, suggest that
    
    courts should construe the ADA by analogy to Title VII of the Civil
    
    Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq. (1994).
    
    As does the general rule of Title I of the ADA, the general rule of
    
    Title VII prohibits discrimination with respect to the "terms,
    
    conditions, or privileges of employment."           42 U.S.C. § 2000e-2(a).
    
    Further, the Supreme Court found that health insurance coverage
    
    made pursuant to an employment relationship is a term, condition,
    
    or privilege of employment as defined under the Title VII general
    
    rule. Newport News Shipbuilding and Dry Dock Co. v. EEOC, 
    462 U.S. 669
    , 682, 
    103 S. Ct. 2622
    , 2630, 
    77 L. Ed. 2d 89
     (1983).
           With respect to employment-related terms, legislative history
    
    of the ADA states that the provisions in Title I use or incorporate
    
    by reference several of the definitions in Title VII, including the
    
    term "employee."    H.R.Rep. No. 485(II), 101st Cong., 2d Sess. 54,
    
    reprinted in 1990 U.S.C.C.A.N. 303, 336.            The EEOC has observed
    
    that   the   definitions   in    Title   I   "are   identical,   or    almost
    
    identical" to those found in Title VII and should be given the same
    
    meaning.      56   Fed.Reg.     35726,   35740   (July   26,   1991)   (EEOC
    
    Interpretive Guidance on 29 C.F.R. § 1630.2(a)-(f)).           The EEOC has
    
    further stated that but for a Title VII exception for public
    
    officials not found in the ADA, "the term "employee' has the same
    
    meaning [under the ADA] that it is given under Title VII."             Id.
    
           Against this background, Appellant points to the Title VII
    
    retaliation statute, contending that although the statute on its
    
    face only protects "employees" and "applicants for employment" from
    
    illegal retaliation, 42 U.S.C. § 2000e-3, courts have broadened the
    
    class of protected persons under the statute to include former
    
    employees.    Indeed, in construing the retaliation statute, this
    
    Court reasoned:
    
           While it is true that the language of a statute should be
           interpreted according to its ordinary, contemporary and common
           meaning ... this plain-meaning rule should not be applied to
           produce a result which is actually inconsistent with the
           policies underlying the statute.     In the instant case, a
           strict and narrow interpretation of the word "employee" to
           exclude former employees would undercut the obvious remedial
           purposes of Title VII.
    
    Bailey v. USX Corp., 
    850 F.2d 1506
    , 1509 (11th Cir.1988) (citation
    
    omitted).
    
           In further support of his argument, Appellant relies on EEOC
    
    v. Cosmair, Inc., L'Oreal Hair Care Div., 
    821 F.2d 1085
     (5th
    Cir.1987),   an    anti-retaliation       case    involving     the    receipt   of
    
    post-employment fringe benefits.           In    Cosmair, the Fifth Circuit
    
    expanded the meaning of the term "employee" to include former
    
    employees so long as the disability-based discrimination is related
    
    to or arises out of the employment relationship.               821 F.2d at 1088.
    
    The statute at issue in Cosmair was the Age Discrimination in
    
    Employment Act of 1967 (ADEA), 29 U.S.C. § 621                 et seq. (1994);
    
    Bailey was a Title VII case.         Since this Court in              Bailey cited
    
    Cosmair, see Bailey, 850 F.2d at 1509, however, Appellant contends
    
    that    former   employees   suing   in    this      Circuit   for     retaliation
    
    affecting post-employment fringe benefits have a cause of action
    
    under Title VII, and by analogy, Title I of the ADA.                           Thus,
    
    Appellant reasons, because Bourgeois' participation in the health
    
    benefit plan arose out of his employment, and the refusal to pay
    
    benefits arguably constituted a continuing violation into the
    
    effective period of the ADA, he is entitled to recover damages for
    
    discrimination suffered by Bourgeois after the effective date of
    
    the ADA.
    
           Finally, Appellant cites EEOC v. South Dakota Wheat Growers
    
    Ass'n, 
    683 F. Supp. 1302
     (D.S.D.1988), in which the issue considered
    
    was whether Title VII governed a health insurance policy "provided
    
    after    termination   of    employment,        as   a   consequence      of   such
    
    employment."      683 F.Supp. at 1304.          In deciding that question in
    
    the affirmative, the district court found that "discrimination
    
    arising out of the employment relationship is unlawful regardless
    
    of "whether or not the person discriminated against is an employee
    
    at the time of [the] discriminatory conduct.' "                       Id. (quoting
    Pantchenko v. C.B. Dolge Co., Inc., 
    581 F.2d 1052
    , 1055 (2d
    
    Cir.1978)).        The court concluded that it was unlawful for an
    
    employer to discriminate against a former employee in the provision
    
    of post-employment health insurance coverage.                    Id. at 1304-05.
    
            Based upon the foregoing, Appellant argues this Court should
    
    look to Title VII in seeking to understand ADA employment terms and
    
    conclude that former employees are included within the scope of ADA
    
    protection.          We   disagree.       The     cardinal      rule   of    statutory
    
    construction       is     that   the    language     of    a    statute     should   be
    
    interpreted in accordance with its ordinary, contemporary, and
    
    common meaning.         Bailey, 850 F.2d at 1509.          Although we may resort
    
    to    the   EEOC's      interpretive     guidelines       for   assistance     in    our
    
    analysis, they are not controlling upon this Court.                       See Meritor
    
    Sav. Bank, FSB v. Vinson, 
    477 U.S. 57
    , 65, 
    106 S. Ct. 2399
    , 2404, 
    91 L. Ed. 2d 49
     (1986).          Absent clearly expressed legislative intent to
    
    the    contrary,      the    plain     language    of     the   statute     should   be
    
    conclusive.     Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc.,
    
    
    447 U.S. 102
    , 108, 
    100 S. Ct. 2051
    , 2056, 
    64 L. Ed. 2d 766
     (1980).                       In
    
    adhering to the cardinal rule, we find the plain language of the
    
    ADA clearly demonstrates the intent of Congress to limit the scope
    
    of the Act to only job applicants and current employees capable of
    
    performing essential functions of available jobs.                           We find no
    
    clearly     expressed       legislative     intent      suggesting     that     former
    
    employees such as Bourgeois should be covered under the Act as
    
    well.12
    
           12
          Citing no authority, the dissent contends "[i]t would be
    counter-intuitive, and quite surprising, to suppose (as the
    majority nevertheless does) that Congress intended to protected
         Appellant cites no binding authority demonstrating that the
    
    ADA protects former employees.     And, with two exceptions, the only
    
    cases cited by Appellant discussing former employees' rights to sue
    
    their former employers involve claims which arose under explicit
    
    anti-retaliation provisions contained in Title VII and the ADEA.13
    These retaliation cases are easily distinguishable.
    
         This Court in Bailey cautioned that courts should avoid a
    
    literal interpretation of a statute when such an approach would
    
    frustrate the statute's central purpose. Bailey, 850 F.2d at 1509.
    
    There is no such risk in this case.         As this Court in    Bailey
    
    recognized, the expansion of the term "employee" to confer standing
    
    to sue upon former employees claiming retaliation is necessary to
    
    provide   meaning   to   anti-retaliation   statutory   provisions   and
    
    
    
    
    [sic] current employees' fringe benefits, but intended to then
    abruptly terminate that protection upon retirement or
    termination, at precisely the time that those benefits are
    designed to materialize." Since we find no clearly expressed
    legislative intent of Congress to suggest that former employees
    should be included within the scope of ADA protection, we
    respectfully disagree.
         13
          Thus, contrary to the dissent's broad assertion that
    "[w]hen Congress enacted the ADA in 1990, it was clearly
    established [in] Title VII case law that the term "employee'
    includes former employees," the overwhelming majority of Title
    VII cases which have so found have been in the retaliatory
    context. The only exceptions cited by Appellant are Wheat
    Growers, 683 F.Supp. at 1302, a Title VII case not binding upon
    this Court, and Northern v. City of Chicago, 
    841 F. Supp. 234
    (N.D.Ill.1993). In Northen, former Chicago police officers
    receiving disability pensions sued the city over its decision to
    require the retirees to pay for health insurance. 841 F.Supp. at
    235. In denying the city's motion to dismiss, the district court
    held that "[a]t the initial pleading stage it is too early to
    conclude that retirees are not covered employees under the ADA."
    Id. at 236. We are not bound by Northen, and the decision is not
    persuasive in that the court dismissed the case without ever
    addressing whether the retirees were in fact QIDs under the ADA.
    effectuate congressional intent.14      Id.   There are, however, no
    
    allegations of retaliation in this case, and excluding former
    
    employees from protection under the Act is not inconsistent with
    
    the policies underlying the statute. To the contrary, interpreting
    
    the ADA to allow any disabled former employee to sue a former
    
    employer essentially renders the QID requirement under the Act,
    
    that an individual with a disability hold or desire a position the
    
    essential functions of which he or she can perform, meaningless.
    
         In the alternative, Appellant attempts to redefine the QID
    
    requirement by reference to § 504 of the Rehabilitation Act of
    
    1973, 29 U.S.C. § 794 (1994).        Appellant correctly notes that
    
    decisions interpreting the Rehabilitation Act, the ADA's statutory
    
    
         14
              Again with no support, the dissent counters:
    
                 The anti-retaliation provision would have ample scope
                 without claims by former employees. For example,
                 current employees often sue for retaliation when
                 subjected to discrimination because of having filed an
                 EEOC complaint. It is no more necessary with respect
                 to Title VII retaliation than it is here to include
                 former employees in order to "provide meaning' to the
                 statute.
    
              While we recognize that retaliation claims may be filed
         by current employees, we disagree with the dissent's
         conclusion that "[t]he anti-retaliation provision would have
         ample scope without claims by former employees." To the
         contrary, we note that many retaliation claims are filed by
         former employees alleging, for example, post-employment
         blacklisting. See, e.g., Bailey, 850 F.2d at 1507 (alleging
         that former employer gave unfavorable reference to
         prospective employer in retaliation for former employee's
         having filed sex discrimination suit); Pantchenko, 581 F.2d
         at 1054 (alleging that former employer refused to furnish
         letters of recommendation in retaliation for former
         employee's having filed discrimination charges with EEOC);
         Rutherford v. American Bank of Commerce, 
    565 F.2d 1162
    ,
         1163-64 (10th Cir.1977) (alleging that in retaliation for
         filing sex discrimination charge against former employer, it
         advised prospective employer of charge).
    predecessor, are relevant precedent in interpreting the provisions
    
    of the ADA.    H.R.Rep. No. 485(II), 101st Cong., 2d Sess. 23 (1990),
    
    reprinted     in    1990      U.S.C.C.A.N.   303,    304.    Under     §    504,    no
    
    "otherwise qualified handicapped individual" may be discriminated
    
    against under any federally funded activity or program.                    29 U.S.C.
    
    § 794.     As the phrase "otherwise qualified handicapped individual"
    
    is   not   defined      in    the   Rehabilitation    Act,   the    Supreme     Court
    
    attempted to do so in Southeastern Community College v. Davis, 
    442 U.S. 397
    , 406, 
    99 S. Ct. 2361
    , 2367, 
    60 L. Ed. 2d 980
     (1979).                          In
    
    Davis, the Supreme Court considered a claim of a licensed practical
    
    nurse who was denied admission to a college's nursing program
    
    because of a hearing disability.              442 U.S. at 402, 99 S.Ct. at
    
    2365.      In its analysis, the Supreme Court determined that "[a]n
    
    otherwise qualified person [under § 504] is one who is able to meet
    
    all of a program's requirements in spite of his handicap."                    Id. at
    
    406, 99 S.Ct. at 2367.              Finding plaintiff unable to do so, the
    
    Supreme Court denied relief.            Id. at 414, 99 S.Ct. at 2371.
    
          In an effort to shoehorn Bourgeois into the Supreme Court's
    
    definition of "otherwise qualified person" in Davis, Appellant and
    
    the EEOC attempt to analogize the nursing "program's requirements"
    
    in Davis with the "requirements" Bourgeois needed to fulfill to
    
    participate        in   the    health   benefits     "program"      following      his
    
    termination.       By analogy to § 504, they contend that for Bourgeois
    
    to be considered "qualified" under Title I of the ADA, he need not
    
    have been a current employee or job applicant "qualified" to
    
    perform essential functions of an available job;                   instead, citing
    
    Davis, they argue he need only have been "qualified" to meet the
    "requirements" of the health benefits plan.15
    
         While comparing the qualifications necessary for admission to
    
    the nursing program in Davis to those required for Bourgeois to
    
    receive health benefits is like comparing applies to oranges,
    
    Appellant draws support for his argument from Modderno v. King, 
    871 F. Supp. 40
     (D.D.C.1994), aff'd, 
    82 F.3d 1059
     (D.C.Cir.1996).             In
    
    Modderno, plaintiff brought suit alleging discrimination on the
    
    basis of her disability in violation of § 504.           871 F.Supp. at 41.
    
    The district court determined that "[t]o establish a prima facie
    
    case under § 504, a person must be handicapped under the Act,
    
    otherwise qualified to receive or participate in the federally
    
    supported benefit or program, and excluded from the benefit solely
    
    by reason of her or his handicap."       Id. at 42 (citing Pesterfield
    
    v. Tennessee Valley Auth.,       
    941 F.2d 437
    , 441 (6th Cir.1991))
    
    (emphasis   supplied).     Although    the    district    court   ultimately
    
    granted defendant's motion to dismiss upon finding that plaintiff
    
    was not denied benefits solely by reason of her handicap,            id. at
    
    42-43,    Appellant   argues   this   Court   should     nevertheless   find
    
    Modderno instructive in giving meaning to the phrase "otherwise
    
    qualified handicapped individual" under the Rehabilitation Act.
    
         15
          Consistent with this argument, the dissent maintains that
    a former employee seeking fringe benefits may satisfy the QID
    definition merely by performing such essential functions as
    "mak[ing] the appropriate election, pay[ing] the premiums, etc."
    This position completely ignores the legislative history of the
    ADA discussed herein, which states that the purpose of including
    the phrase "essential functions" within the QID definition is to
    "ensure that employers can continue to require that all
    applicants and employees, including those with disabilities, are
    able to perform the essential, i.e., the non-marginal functions
    of the job in quesiton [sic]." H.R.Rep. No. 485(II), 101st
    Cong., 2d Sess. 55 (1990), reprinted in 1990 U.S.C.C.A.N. 303,
    337 (emphases supplied).
          We decline this invitation.        The   Modderno decision is not
    
    binding in this Circuit, and we disagree with the court's holding.
    
    What Appellant, the EEOC and the Modderno court have done is
    
    manipulate the Supreme Court's decision in Davis interpreting the
    
    phrase "otherwise qualified handicapped individual" under § 504 to
    
    essentially create a new job category: a "post-employment benefits
    
    recipient."    The Eighth Circuit appropriately rejected such an
    
    argument in Beauford v. Father Flanagan's Boys' Home, 
    831 F.2d 768
    
    (8th Cir.1987), cert. denied, 
    485 U.S. 938
    , 
    108 S. Ct. 1116
    , 
    99 L. Ed. 2d 277
     (1988).    In Beauford, plaintiff was unable to perform
    
    the   essential   functions   of   any    available    job      the    employer
    
    maintained but claimed she was still protected under § 504 because
    
    she was handicapped and eligible for fringe benefits.             831 F.2d at
    
    771-72.   In its analysis, the Eighth Circuit considered both the
    
    Supreme Court's decision in        Davis,      as   well   as    the    federal
    
    regulations which define a "qualified handicapped person" under the
    
    Rehabilitation Act as the following:
    
               (1) With respect to employment, a handicapped person who,
          with reasonable accommodation, can perform the essential
          functions of the job in question;
    
               ....
    
               (4) With respect to other services, a handicapped person
          who meets the essential eligibility requirements for the
          receipt of such services.
    
    45 C.F.R. § 84.3(k).
    
          The Eighth Circuit ruled out subheading (4), upon which
    
    plaintiff relied, determining the provision does not apply to
    
    discrimination with respect to employee benefits, but rather to
    
    discrimination by health, welfare and social services providers
    toward applicants attempting to obtain such services.              Beauford,
    
    831 F.2d at 771-72.          Finding subheading (1) to be the proper
    
    category governing plaintiff's claim, the court concluded that
    
    "both the language of the statute and its interpretation by the
    
    Supreme Court [in Davis ] indicate that section 504 was designed to
    
    prohibit    discrimination     within   the     ambit   of   an   employment
    
    relationship in which the employee is potentially able to do the
    
    job in question."      Id. at 771 (emphasis supplied).
    
         We are persuaded by the reasoning of the Eighth Circuit in
    
    Beauford,    finding    it    consistent   with     congressional     intent
    
    underlying Title I of the ADA.       Since Bourgeois was neither a job
    
    applicant nor a current employee capable of performing essential
    
    functions of an available job with GFF at or subsequent to the time
    
    the alleged discriminatory conduct was committed,16 he was not a QID
    
    within the meaning of the ADA.      Thus, Appellant is not entitled to
    
    relief.17
    
                                   IV. CONCLUSION
    
         We conclude that Bourgeois, a former employee, was not a
    
    
         16
          Arguing that Bourgeois was employed at a competing fast
    food restaurant until shortly before his death, Appellant urges
    this Court to remand the case for development of the record as to
    Bourgeois' ability to perform the "essential functions" of his
    job. We decline to do so. While Bourgeois may indeed have been
    able to perform the essential functions of a job, including the
    job he held while previously employed by GFS, he was neither a
    current employee of nor a job applicant with GFF at or subsequent
    to the time the alleged discriminatory conduct was committed.
    Accordingly, we find Bourgeois was not covered under Title I of
    the ADA.
         17
          This opinion should not be read to infer that a former
    employee has no recourse in the event an employer makes a
    substantial change in a health insurance benefit plan following
    discharge. There is simply no cause of action under the ADA.
    "qualified individual with a disability" as defined under the ADA
    
    and therefore not entitled to the Act's protection.       The district
    
    court appropriately denied Appellant's motion for reconsideration
    
    of the order of dismissal.
    
         AFFIRMED.
    
         ANDERSON, Circuit Judge, dissenting:
    
         The majority today concludes that Timothy Bourgeois was not a
    
    "qualified individual with a disability" under the Americans with
    
    Disabilities Act ("ADA" or "the Act"), solely because Bourgeois was
    
    a former employee.    I respectfully disagree with the majority's
    
    conclusion that the ADA provides protection only for currently
    
    active employees.
    
         At the outset, it is important to clarify the conduct of the
    
    defendant-appellee, Garner Fast Foods, Inc. ("GFF").      The majority
    
    correctly notes that GFF discharged Bourgeois in April of 1991 "to
    
    avoid paying future health insurance claims" for him.         At 2972.
    
    The majority fails to mention that GFF took this action, which
    
    would clearly be unlawful now that the ADA is in effect, during the
    
    two year phase-in that Congress included in the Act, which ran from
    
    July 26, 1990, until the July 26, 1992, effective date.              The
    
    purpose of this phase-in period was to give employers time to take
    
    those   actions   necessary   to   come   into   compliance   with   the
    
    requirements of the Act.      Instead of taking action to come into
    
    compliance with the ADA, GFF fired Bourgeois and then, because of
    
    Bourgeois' continued participation in the company health insurance
    
    benefit plan, GFF amended that plan to impose an AIDS cap, all
    
    shortly before the July 26, 1992, effective date of ADA.
           Bourgeois seeks to recover reimbursement only for medical
    
    expenses incurred from and after the July 26, 1992, effective date
    
    of the Act;          he does not seek to retroactively recover expenses
    
    incurred before that date.           In a case in an almost identical
    
    posture, this Court held that the continuation of an allegedly
    
    discriminatory health insurance policy constitutes a continuing
    
    violation, an "ongoing policy actively maintained by" the employer
    
    such that "each week in which divorced men are denied insurance
    
    coverage ... constitutes a wrong."         Beavers v. American Cast Iron
    
    Pipe Co., 
    975 F.2d 792
    , 798 (11th Cir.1992);        see also Bazemore v.
    
    Friday, 
    478 U.S. 385
    , 
    106 S. Ct. 3000
    , 
    92 L. Ed. 2d 315
     (1986).1
    
           The majority acknowledges that AIDS is a disability under the
    
    ADA.          They     also   recognize   that   fringe    benefits   like
    
    employer-provided health benefits are among the "terms, conditions,
    
    and privileges of employment" protected by the Act.          At 2974 & nn.
    
    6-7.       Thus, employer-provided fringe benefits are subject to the
    
    anti-discrimination provisions of the ADA.        This far, I agree with
    
    the majority.        However, the majority then concludes that Bourgeois
    
    lost all protection under the ADA when he was fired, thereby
    
    assuming the status of a former employee.                 The crux of the
    
    majority's position is that the statutory term "employee" includes
    
    only currently active employees, and that the statutory term
    
    "qualified individual with a disability" does not include a retired
    
    employee or other former employee because such persons can no
    
    longer perform the essential functions of the positions which they
    
           1
          The majority assumes that the violation alleged here is a
    continuing violation. At 2973. As noted, this result is
    dictated by binding precedent.
    formerly held.         For the reasons that follow, I dissent.
    
           Unlike the majority, I cannot conclude that the plain meaning
    
    of the language of the statute limits the Act's protection to
    
    currently active employees or job applicants, and excludes retirees
    
    and other former employees.             Quite the contrary, the governing
    
    language of the general statutory provision uses the broader term
    
    "individual":
    
           No covered entity shall discriminate against a qualified
           individual 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.
    
    42 U.S.C. § 12112(a).2          Moreover, even if the governing general
    
    provision had used the term "employee," rather than the term
    
    "individual," nothing in the plain meaning of that term limits its
    
    scope to current employees as opposed to former employees; this is
    
    borne out by the case law discussed below.
    
           Finding no conclusive answer in the plain meaning of the
    
    statutory language, I turn for guidance to the structure and
    
    evident purpose of the statute, the legislative history, the case
    
    law, and the guidance provided by the administrative agency charged
    
    with       enforcing   the   statute.    The   purpose   of   the   statute   is
    
    expressly stated in the broadest possible terms:
    
           2
          The majority emphasizes the language of § 12112(b) which
    sets out a nonexclusive list of actions (or types of action)
    which constitute discrimination. At 2975. The majority takes
    comfort in the fact that many of the actions described refer to
    employees or applicants. Not only is this list expressly
    nonexclusive, but the focus of the subsection is on the
    description of actions that constitute discrimination, not on the
    persons protected by the Act. In any event, not all of the
    descriptions refer to employees or applicants. See § 12112(b)(4)
    & (6).
         It is the purpose of this chapter ... to provide a clear and
         comprehensive national mandate for the elimination of
         discrimination against individuals with disabilities.
    
    42 U.S.C. § 12101(b)(1).       In addition to its broad purpose, the
    
    statute is clearly a remedial one.       The law is well established
    
    that remedial statutes are to be construed liberally so as to
    
    promote the remedial purposes of the statute.      Pullman-Standard v.
    
    Swint, 
    456 U.S. 273
    , 275, 
    102 S. Ct. 1781
    , 1783, 
    72 L. Ed. 2d 66
    
    (1982) (Title VII);   Corning Glass Works v. Brennan, 
    417 U.S. 188
    ,
    
    208, 
    94 S. Ct. 2223
    , 2234-35, 
    41 L. Ed. 2d 1
     (1974) (Equal Pay Act);
    
    Terrell v. U.S. Pipe & Foundry Co., 
    644 F.2d 1112
    , 1123 (5th Cir.
    
    Unit B 1981) (Civil Rights Act of 1964), rev'd on other grounds sub
    
    nom. Int'l Assoc. of Machinists and Aerospace Workers, AFL-CIO v.
    
    Terrell, 
    456 U.S. 955
    , 
    102 S. Ct. 2028
    , 
    72 L. Ed. 2d 479
     (1982).
    
         Keeping in mind this mandate to liberally construe remedial
    
    statutes, I turn to one aspect of the structure of the Act.             The
    
    majority acknowledges that the protection of the Act extends to
    
    fringe   benefits   provided   by   employers,   such    as   pension   and
    
    profit-sharing plans and health benefit plans.3         It is a matter of
    
    common knowledge that fringe benefit plans routinely and commonly
    
    cover retirees and other former employees.         Indeed, pension and
    
    profit-sharing plans are designed primarily for the post-employment
    
    years.   It is entirely reasonable to infer that Congress intended
    
    the Act's protection to extend to those individuals routinely and
    
         3
          Section 12112(a) expressly extends protection to "other
    terms, conditions, and privileges of employment." The statute
    also makes several other references indicating that fringe
    benefits are protected. See § 12112(b)(2) & (4). The majority
    concedes that it is clear that fringe benefits are protected by
    the ADA, citing the statute, its legislative history, and the
    interpretive regulations. At 2974 & n. 7.
    commonly included within such fringe benefit plans.             It would be
    
    counter-intuitive,     and   quite   surprising,     to    suppose   (as   the
    
    majority nevertheless does) that Congress intended to protect
    
    current employees' fringe benefits, but intended to then abruptly
    
    terminate    that   protection   upon   retirement    or   termination,     at
    
    precisely the time that those benefits are designed to materialize.
    
    The structure of the statute, in clearly extending protection to
    
    fringe benefit plans, indicates that Congress intended protection
    
    for those routinely and commonly covered by such employer-provided
    
    plans.
    
           The structure of the Act, its legislative history and the
    
    interpretive regulations also establish that Congress intended for
    
    the ADA to be construed in a manner similar to Title VII.            The text
    
    of   the   ADA   expressly   incorporates   the   "powers,    remedies     and
    
    procedures set forth in Title VII".         42 U.S.C. § 12117(a).      Also,
    
    much of the language in the ADA mirrors language found in Title
    
    VII.     For example, both define the term "employee" to mean "an
    
    individual employed by an employer."        The House of Representatives
    
    Education and Labor Committee wrote:
    
           Several of the definitions set out in title VII of the Civil
           Rights Act of 1964 are adopted or are incorporated by
           reference in this legislation—i.e., ... employer, person ...
           the term "employee" means an individual employed by an
           employer.
    
    H.R.Rep. No. 485(II), 101st Cong., 2d Sess. 54, reprinted in 1990
    
    U.S.C.C.A.N. 336.
    
           The provisions in title I of this bill use or incorporate by
           reference many of the definitions in title VII of the Civil
           Rights Act of 1964 (employee, employer ...).
    
    Id. at 149, reprinted in 1990 U.S.C.C.A.N. 432
            [T]itle I of this legislation incorporates by reference the
            definition of the term "employer" and "employee" used in title
            VII of the Civil Rights Act of 1964....
    
    Id. at 76, reprinted in 1990 U.S.C.C.A.N. 359;              see also McDermott
    
    International, Inc. v. Wilander, 
    498 U.S. 337
    , 342, 
    111 S. Ct. 807
    ,
    
    811,       
    112 L. Ed. 2d 866
       (1991)   ("In   the   absence   of   a   contrary
    
    indication, we assume that when a statute uses [a term of art],
    
    Congress intended it to have its established meaning.").
    
            The EEOC interpretive guidelines also support this view. They
    
    state that, "[i]n general, the term "employee' has the same meaning
                                                                        4
    that it is given under Title VII."            29 CFR § 1630.2(a)-(f).        Those
    
    guidelines note that there are several definitions in Title I of
    
    the ADA that are identical, or almost identical, to ones found in
    
    Title VII, and that, "[t]hese terms are to be given the same
    
    meaning under the ADA that they are given under Title VII."                   Id.
    
           Based on the similarities between the texts and remedial
    
    purposes of the ADA and Title VII, as well as the evidence of
    
    congressional intent, courts interpreting the ADA look to Title
    
    VII.       See e.g. Carparts Distri. Ctr. v. Automotive Wholesaler's
    
    Assoc., 
    37 F.3d 12
    , 16 (1st Cir.1994) ("In making our determination
    
    we look for guidance to the Civil Rights Act of 1964 ... and cases
    
    interpreting that statute.");             West v. Russell Corp., 
    868 F. Supp. 313
    , 317 (M.D.Ala.1994) (holding that the court will analyze claims
    
    of discrimination under the ADA as it would claims under Title
    
    VII).       This Court should follow this common-sense approach and do
    
           4
          EEOC guidelines, "while not controlling upon the courts by
    reason of their authority, do constitute a body of experience and
    informed judgment to which courts and litigants may properly
    resort for guidance." Meritor Savings Bank, FSB v. Vinson, 
    477 U.S. 57
    , 65, 
    106 S. Ct. 2399
    , 2404, 
    91 L. Ed. 2d 49
     (1986).
    so as well.
    
         This Court has construed the term "employee" in the Title VII
    
    context    to    effectuate      Congress'     purposes        in     enacting    that
    
    legislation.     In     Bailey    v.   USX     Corp.,    
    850 F.2d 1506
        (11th
    
    Cir.1988), we held that a former employee had the right to sue his
    
    former employer for retaliation under Title VII, despite the
    
    language of the statute which referred only to "employees" and
    
    "applicants for employment."           Id. at 1509.       We noted that "every
    
    other court" had thus held, based upon "a common sense reading in
    
    keeping with the purpose of the statute."               Id.;    see also Charlton
    
    v. Paramus Bd. of Educ., 
    25 F.3d 194
     (3rd Cir.1994), cert. denied,
    
    --- U.S. ----, 
    115 S. Ct. 590
    , 
    130 L. Ed. 2d 503
     (1994);                    E.E.O.C. v.
    
    Ohio Edison Co., 
    7 F.3d 541
     (6th Cir.1993);                    Passer v. American
    
    Chemical Society, 
    935 F.2d 322
     (D.C.Cir.1991);                      E.E.O.C. v. J.M.
    
    Huber Corp., 
    927 F.2d 1322
     (5th Cir.1991) (assuming that former
    
    employee   can    sue   under    Title   VII    retaliation          provision   when
    
    employer allegedly retaliates by refusing to pay post-employment
    
    profit-sharing benefits);         Patchenko v. C.B. Dolge Company, Inc.,
    
    
    581 F.2d 1052
     (2nd Cir.1978);             Rutherford v. American Bank of
    
    Commerce, 
    565 F.2d 1162
     (10th Cir.1977); but see Robinson v. Shell
    
    Oil Co., 
    70 F.3d 325
     (4th Cir.1995), cert. granted, --- U.S. ----,
    
    
    116 S. Ct. 1541
    , 
    134 L. Ed. 2d 645
     (1996).             We also noted in Bailey
    
    that the same rationale had been employed in the age discrimination
    
    context to extend protection to former employees. Bailey, 850 F.2d
    
    at 1509 (citing with approval E.E.O.C. v. Cosmair, Inc., L'Oreal
    
    Hair Care Div., 
    821 F.2d 1085
    , 1088 (5th Cir.1987) ("The term
    
    "employee' ... is interpreted broadly:                   it includes a former
    employee as long as the alleged discrimination is related to or
    
    arises out of the employment relationship.")).                  Following this
    
    overwhelming    case     law,   we    held    that    "a   strict   and     narrow
    
    interpretation of the word "employee' to exclude former employees
    
    would   undercut   the    obvious     remedial    purposes     of   Title    VII."
    
    Bailey, 850 F.2d at 1509.
    
         It is significant that Congress enacted the ADA in 1990.
    
    Congress is deemed to legislate against the background of the
    
    federal common law.      Astoria Fed. S & L Ass'n v. Solemino, 
    501 U.S. 104
    , 108, 
    111 S. Ct. 2166
    , 2169-70, 
    115 L. Ed. 2d 96
     (1991).                    When
    
    Congress enacted the ADA in 1990, it was clearly established Title
    
    VII case law that the term "employee" includes former employees.
    
    Congress is deemed to be familiar with such case law.               In the ADA,
    
    Congress used the same definition of "employee" that it used in
    
    Title VII.    The text of the ADA expressly refers to Title VII, and
    
    the legislative history clearly indicates a Congressional intention
    
    to incorporate the established Title VII meaning for the term
    
    "employee."
    
         The majority purports to "easily distinguish" Bailey and the
    
    other retaliation cases.        However, the only rationale offered for
    
    the distinction, beyond the majority's ipse dixit that retaliation
    
    cases are different, is that a broad interpretation of the term
    
    "employee" was "necessary to provide meaning to anti-retaliation
    
    provisions and effectuate congressional intent."               At 2977.     It is
    
    not at all apparent what difference there is between Title VII
    
    anti-retaliation    claims      and   claims     by   former    employees     for
    
    discrimination     with     respect      to      fringe     benefits.         The
    anti-retaliation provision would have ample scope without claims by
    
    former employees.             For example, current employees often sue for
    
    retaliation when subjected to discrimination because of having
    
    filed an EEOC complaint.             It is no more necessary with respect to
    
    Title VII retaliation than it is here to include former employees
    
    in order to "provide meaning" to the statute.                  Indeed, the denial
    
    of claims of former employees with respect to fringe benefits would
    
    seem to intrude more severely on the obvious congressional intent
    
    to protect employer-provided fringe benefits.                      As a matter of
    
    common      experience,       fringe   benefits      are   designed   and   provided
    
    primarily for the post-employment years.                   I respectfully submit
    
    that       the   majority's     attempted     distinction     of   Bailey   and   the
    
    retaliation cases is flawed.            Bailey is binding precedent, and its
    
    rationale should govern this case.5
    
           The       text    of   the   statute   also    expressly    refers    to   the
    
    Rehabilitation Act of 1973.             42 U.S.C. § 12201(a) ("[N]othing in
    
    this chapter shall be construed to apply a lesser standard than the
    
    standards applied under title V of the Rehabilitation Act of
    
    1973.").         The majority acknowledges that Congress intended the
    
    courts to interpret the ADA with reference to the Rehabilitation
    
    Act.       M/S at 15 (citing H.R.R . No. 485(II), 101st Cong., 2d Sess.
                                     EP
    
    23 (1990)).             Section 504 of the Rehabilitation Act prohibits
    
           5
          Other non-retaliation Title VII cases have also extended
    protection to former employees. See E.E.O.C. v. South Dakota
    Wheat Growers Ass'n, 
    683 F. Supp. 1302
     (D.S.D.1988) (rejecting the
    argument that Title VII does not cover post-employment health
    benefits); see also Long v. State of Florida, 
    805 F.2d 1542
    (11th Cir.1986), rev'd on other grounds, 
    487 U.S. 223
    , 
    108 S. Ct. 2354
    , 
    101 L. Ed. 2d 206
     (1988) (assuming that former employees have
    standing under Title VII to challenge discriminatory practices
    with regard to payments from employee pension plan).
    discrimination   against   an    "otherwise   qualified   handicapped
    
    individual" in any federally funded program.       29 U.S.C. § 794.
    
    Analysis of the cases construing this phrase provides insight into
    
    logic behind Congress' use of the nearly identical "qualified
    
    individual with a disability."
    
         The Supreme Court has held that "[a]n otherwise qualified
    
    person [under § 504] is one who is able to meet all of a program's
    
    requirements in spite of his handicap."       Southeastern Community
    
    College v. Davis,   
    442 U.S. 397
    , 406, 
    99 S. Ct. 2361
    , 2367, 
    60 L. Ed. 2d 980
     (1979). The Court captured the essence of this concept
    
    when it wrote:
    
         Section 504 by its terms does not compel educational
         institutions to disregard the disabilities of handicapped
         individuals or to make substantial modifications in their
         programs to allow disabled persons to participate. Instead,
         it requires only that an "otherwise qualified handicapped
         individual" not be excluded from participation in a federally
         funded program "solely by reason of his handicap," indicating
         only that mere possession of a handicap is not a permissible
         ground for assuming an inability to function in a particular
         context.
    
    Id. at 405, 99 S.Ct. at 2366 (emphasis added).
    
         The court in Modderno v. King, 
    871 F. Supp. 40
     (D.D.C.1994),
    
    aff'd, 
    82 F.3d 1059
     (D.C.Cir.1996), addressed a Rehabilitation Act
    
    claim of discrimination in the provision of health insurance fringe
    
    benefits.   The plaintiff, Modderno, was the former spouse of a
    
    Foreign Service officer, and qualified for Foreign Service Benefit
    
    Plan health insurance on that basis.     During the period that she
    
    was covered by the Plan, the Plan imposed a lower limit on mental
    health benefits,6 as compared to the limit on benefits for physical
    
         6
          The Plan was changed to include a $75,000 lifetime maximum
    for mental health benefits.
    ailments.   Modderno, 82 F.3d at 1060.   Although the court did not
    
    find that this limit amounted to discrimination in violation of §
    
    504, it nonetheless implicitly recognized that a plan participant
    
    could assert a claim of discrimination in the provision of fringe
    
    benefits.   The Modderno district court wrote that,
    
         To establish a prima facie case under § 504, a person must be
         handicapped under the Act, otherwise qualified to receive or
         participate in the federally supported benefit or program, and
         be excluded from the benefit solely by reason of her or his
         handicap.
    
    Modderno, 871 F.Supp. at 42 (citing Pesterfield v. Tennessee Valley
    
    Authority, 
    941 F.2d 437
    , 441 (6th Cir.1991) (emphasis added)).7
    
         Finally, my position that retirees and other former employees
    
    are protected under the ADA is supported by a common sense reading
    
    of the statute.     As noted above, § 12111(8) provides that a
    
    "qualified individual with a disability" means "an individual with
    
    a disability who ... can perform the essential functions of the
    
    employment position...."    A retired or former employee, like
    
    Bourgeois, has already performed all of the functions expected of
    
    him with respect to the job he occupied before retirement.   Under
    
    the company's plan, the only additional "functions" expected of
    
    Bourgeois, and other retired or former employees, are to make the
    
         7
          The Eighth Circuit, in Beauford v. Father Flanagan's Boys'
    Home, 
    831 F.2d 768
     (8th Cir.1987), employed a rationale very
    similar to that of the majority in this case. The opinion makes
    no reference to the overwhelming Title VII case law discussed
    above. I respectfully submit that Beauford, like the majority
    opinion in this case, ignored not only that overwhelming case
    law, which constitutes the background against which Congress
    legislated, but also ignored the obvious common sense
    construction of the statute in light of its purpose and
    legislative history. See Price Waterhouse v. Hopkins, 
    490 U.S. 228
    , 241, 
    109 S. Ct. 1775
    , 1786, 
    104 L. Ed. 2d 268
     (1989) ("We need
    not leave our common sense at the doorstep when we interpret a
    statute.").
    appropriate election, pay the premiums, etc. Fringe benefits, such
    
    as the one at issue here, are all part of the overall compensation
    
    package provided for employees as consideration for their service
    
    during their active years with the company.         Post-employment
    
    benefits are like deferred compensation, and are expected to be
    
    enjoyed during the post-employment years.    The common sense of the
    
    concept, "qualified individual with a disability," is that there
    
    should be no discrimination because of stereotypes or stigmas.
    
    Differences in treatment are legitimate when based on the ability
    
    of a person to perform the functions expected in the position.   In
    
    other words, the protections of the Act accrue to disabled persons
    
    who can perform the functions expected to be performed by persons
    
    without disability in the same position.    As the Supreme Court put
    
    it in Southeastern Community College v. Davis: "Mere possession of
    
    a handicap is not a permissible ground for assuming an inability to
    
    function in a particular context."   442 U.S. at 405, 99 S.Ct. at
    
    2366 (emphasis added).   Applying that common sense in the instant
    
    context, it is obvious that retirees and other former employees,
    
    who because of their prior employment are entitled to participate
    
    in post-employment fringe benefit plans, are not expected to
    
    perform the functions of the jobs they previously held before
    
    retirement.    Rather, they are expected to meet whatever criteria
    
    are mandated by the fringe benefit plan for the accrual and
    
    continuation of coverage, including, for example, any required
    
    minimum years of employment, honorable discharge, and the payment
    
    of premiums.
    
         In summary, I respectfully submit that the majority sees
    "plain meaning" when there is none.             The majority ignores the
    
    common sense reading of the statute and the evident congressional
    
    purpose    as     revealed   in   the   structure   of   the       statute,   its
    
    legislative history, and the overwhelming case law which provided
    
    the background against which Congress legislated.8                    Because I
    
    cannot    agree    with   the   majority's   conclusions,      I   respectfully
    
    dissent.
    
    
    
    
         8
          I have found very few ADA cases squarely addressing the
    issue before us. A district court in the Northern District of
    Illinois rejected as unpersuasive and without case law support an
    argument that the employment provisions of the ADA do not apply
    to former employees. Northen v. City of Chicago, 
    841 F. Supp. 234
    , 236 (N.D.Ill.1993). However, Parker v. Metropolitan Life,
    Ins. Co., 
    875 F. Supp. 1321
     (W.D.Tenn.1995), appeal docketed, No.
    95-5269 (6th Cir.1995), followed Beauford v. Father Flanagan's
    Boys' Home, 
    831 F.2d 768
     (8th Cir.1987), and held that a former
    employee was not a qualified individual with a disability, and
    thus could not make an ADA claim under the employer's disability
    plan. The Parker court based this holding on its conclusion that
    the employee had become totally disabled and was no longer able
    to perform the essential functions of the job she had previously
    held. In my judgment, Parker, like Beauford, is flawed. It
    failed to address the overwhelming Title VII case law which
    provided the background against which Congress enacted the ADA,
    and failed to address the common sense construction of the Act in
    light of its purpose and legislative history.
    

Document Info

DocketNumber: 95-8533

Filed Date: 8/2/1996

Precedential Status: Precedential

Modified Date: 12/21/2014

Authorities (33)

O'Bryant v. City of Midland , 9 F.3d 421 ( 1993 )

Walker Process Equipment, Inc. v. Food MacHinery & Chemical ... , 382 U.S. 172 ( 1965 )

Corning Glass Works v. Brennan , 417 U.S. 188 ( 1974 )

Southeastern Community College v. Davis , 442 U.S. 397 ( 1979 )

Consumer Product Safety Comm'n v. GTE Sylvania, Inc. , 447 U.S. 102 ( 1980 )

Pullman-Standard v. Swint , 456 U.S. 273 ( 1982 )

Newport News Shipbuilding & Dry Dock Co. v. EEOC , 462 U.S. 669 ( 1983 )

Meritor Savings Bank, FSB v. Vinson , 477 U.S. 57 ( 1986 )

Bazemore v. Friday , 478 U.S. 385 ( 1986 )

Florida v. Long , 487 U.S. 223 ( 1988 )

Price Waterhouse v. Hopkins , 490 U.S. 228 ( 1989 )

McDermott Int'l, Inc. v. Wilander , 498 U.S. 337 ( 1991 )

Astoria Fed. Sav. & Loan Assn. v. Solimino , 501 U.S. 104 ( 1991 )

16 Fair empl.prac.cas. 26, 15 Empl. Prac. Dec. P 7945 ... , 565 F.2d 1162 ( 1977 )

18 Fair empl.prac.cas. 691, 17 Empl. Prac. Dec. P 8549 ... , 581 F.2d 1052 ( 1978 )

25 Fair empl.prac.cas. 1262, 26 Empl. Prac. Dec. P 31,856 , 644 F.2d 1112 ( 1981 )

Bud Antle, Inc. v. Eastern Foods, Inc. , 758 F.2d 1451 ( 1985 )

hughlan-long-and-s-dewey-haas-individually-and-on-behalf-of-all-retired , 805 F.2d 1542 ( 1987 )

Equal Employment Opportunity Commission v. Cosmair, Inc., L'... , 821 F.2d 1085 ( 1987 )

Joyce Ann Beauford v. Father Flanagan's Boys' Home, Joyce ... , 831 F.2d 768 ( 1987 )

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