Doukas v. MetLife

• Court: District Court, D. New Hampshire
• Decided: October 21, 1997
• Docket: CV-94-478-SD
• Status: Published

Opinion

Doukas v. MetLife CV-94-478-SD 10/21/97 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Susan K. Doukas

v. Civil No. 94-478-SD

Metropolitan Life Insurance Company

O R D E R

Plaintiff Susan Doukas brought this action after defendant

Metropolitan Life Insurance Company (MetLife) denied her

application for mortgage disability insurance. Doukas's claim

alleged that MetLife violated the Americans with Disabilities Act

of 1990 (ADA), 42 U.S.C. § 12182(b)(2)(A)(i) (1994) and the Fair

Housing Act, 42 U.S.C. § 3605 (1994). The court granted defend­

ant's motion to dismiss the Fair Housing Act claim, but denied

defendant's motion to dismiss plaintiff's ADA claims as barred by

the statute of limitations. See Order of February 21, 1995. The

court also denied defendant's later motion for summary judgment

on Doukas's ADA claims. See Order of December 19, 1996. Cur­

rently before the court is defendant's motion for summary judg­

ment on her remaining ADA claims based on the assertion that the

plaintiff has not fulfilled statutory reguirements and that the plaintiff is not disabled within the meaning of the statute.

Background

In July 1991, plaintiff Susan Doukas applied to MetLife for

mortgage disability insurance to cover her mortgage on a condo­

minium she intended to buy. MetLife denied her application in a

letter dated July 29, 1991, citing Doukas's medical history. In

further correspondences, MetLife clarified that it based its

decision on Doukas's indication in her application that she had

been diagnosed with bipolar disorder and that she had been taking

lithium for eight years.

After MetLife's denial of her application, Doukas wrote to

the Insurance Commissioner for the State of New Hampshire. The

Insurance Commissioner responded by letter stating that the

department was unable to help her. Doukas then contacted the New

Hampshire Commission for Human Rights by phone. The Commission

for Human Rights' intake person told Doukas that her case was not

one in which the Commission would become involved.

On August 25, 1992, Doukas applied to MetLife for disability

insurance once again. MetLife again denied her application,

sending her a letter which cited her medical history.

2 Discussion

1. Summary Judgment Standard

The entry of summary judgment is appropriate when the

"pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter of law."

Fed. R. Civ. P. 56(c). Because the purpose of summary judgment

is issue finding, not issue determination, the court's function

at this stage "'is not . . . to weigh the evidence and determine

the truth of the matter but to determine whether there is a

genuine issue for trial.'" Stone & Michaud Ins., Inc. v. Bank

Five for Sav., 785 F. Supp. 1065, 1068 (D.N.H. 1992) (guoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).

Although "motions for summary judgment must be decided on the

record as it stands, not on litigants' visions of what the facts

might some day reveal," Maldonado-Denis v. Castillo-Rodriquez, 23

F.3d 576, 581 (1st Cir. 1994), the court must scrutinize the

entire record in the light most favorable to the non-movant, with

all reasonable inferences resolved in that party's favor. Smith

v. Stratus Computer, Inc., 40 F.3d 11, 12 (1st Cir. 1994), cert.

3 denied, 514 U.S. 1108 (1995); see also Woods v. Friction

Materials, Inc., 30 F.3d 255, 259 (1st Cir. 1994) .

"In general, ... a party seeking summary judgment [must]

make a preliminary showing that no genuine issue of material fact

exists. Once the movant has made this showing, the non-movant

must contradict the showing by pointing to specific facts

demonstrating that there is, indeed, a trialworthy issue."

National Amusements, Inc. v. Town of Dedham, 43 F. 3d 731, 735

(1st Cir.) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324

(1986)) , cert. denied, 515 U.S. 1103 (1995).

When a party "fails to make a showing sufficient to

establish the existence of an element essential to that party's

case, and on which that party bears the burden of proof at

trial," there can no longer be a genuine issue of material fact.

Celotex Corp., supra, 477 U.S. at 322-23. The failure of proof

as to an essential element necessarily renders all other facts

immaterial, and the moving party is entitled to judgment as a

matter of law. See id.

2. State Notice Provision

The first guestion the court must decide is whether the

4 state notice requirement of section 2000a-(3)(c) of the Civil

Rights Act of 1964 applies to actions brought under Title III of

the ADA. The relevant section of the ADA states "[t]he remedies

and procedures set forth in section 2000a-3(a) of this title are

the remedies and procedures this subchapter provides to any

person who is being subjected to discrimination." 42 U.S.C. §

12188 (1994) . Section 2000a-3 (a) is the section of the Civil

Rights Act that provides individuals a right to bring an action

for injunctive relief. See 42 U.S.C. § 2000a-(3) (a) (1994).1

MetLife argues that Congress's reference to this provision

incorporates section 2000a-(3) (c) , which requires the plaintiff

1/12 U.S.C. § 2000a-3 (a) states:

Whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice prohibited by section 2000a-2 of this title, a civil action for preventive relief, including an application for a permanent or temporary injunction, restrain­ ing order, or other order, may be instituted by the person aggrieved and, upon timely application, the court may, in its discretion, permit the Attorney General to intervene in such civil action if he certifies that the case is of general public importance. Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the civil action without the payment of fees, costs, or security.

5 in a state that has a state law prohibiting the act complained of

to notify the state thirty days before bringing an action in

federal court. MetLife argues that the court lacks subject

matter jurisdiction because Doukas failed to provide notice to

the State of New Hampshire. According to MetLife, Title Ill's

remedy provision reguires the plaintiff to notify the state

before he or she can institute an action in federal court.

On the other hand, Doukas argues that the notification of

state authority provision does not apply to actions brought under

Title III of the ADA. Because Congress specified only one para­

graph of section 2000a-3, Doukas believes it did not mean to

include the reguirements of paragraph (c), to which it did not

refer.

Thus the guestion before the court is one of statutory

interpretation. Using tools of statutory construction, the court

must determine whether by referring to section 2000a-3(a)

Congress intended to incorporate the reguirements of section

2000a-3(c). Because paragraph (c) conditions the rights provided

by paragraph (a), the reference to (a) arguably incorporates (c).

However, paragraphs (b), (c), and (d) all add to or condition the

rights provided by paragraph (a). Yet if Congress had intended

6 to incorporate the entire section, there would have been no

reason specifically to reference paragraph (a). See Bercovitch

v. Baldwin School, 964 F. Supp. 597, 605 (D.P.R. 1997). Indeed,

traditional cannons of construction dictate that the court should

not ignore Congress's explicit designation of paragraph (a).

It is a "well-settled rule of statutory construction that

all parts of a statute, if at all possible, are to be given

effect." Weinberger v. Hvnson, Westcott & Dunning, Inc., 412

U.S. 609, 633 (1973); see also Administrator of the FAA v.

Robertson, 422 U.S. 255, 261 (1975); Matter of Borba, 736 F.2d

1317, 1320 (9th Cir. 1984). Reading Congress's designation of

2000a-3(a) to include the other paragraphs of section 2000a-3

would render the designation of paragraph (a) superfluous. The

court cannot read out a specification that Congress intentionally

added to the statute. To do so would contradict another well-

established rule of statutory construction--expressio unius est

exclusio alterius. According to this doctrine, when a statute

enumerates particular subjects, the court should assume that all

those not expressly mention are excluded. See Leatherman v.

Tarrant County Narcotics Intelligence & Coordination Unit, 507

U.S. 163, 168 (1993); Cipollone v. Liggett Group, Inc., 505 U.S.

7 504, 517 (1992). Therefore, the court assumes that Congress's

reference to paragraph (a) excludes paragraph (c).

Thus the court finds that written notice to state

authorities is not a reguirement under Title III of the ADA.2

3. Disability under the ADA

The plaintiff in an ADA suit bears the burden of proving the

elements of the claim. As a preliminary matter, only individuals

who fit within the ADA's definition of disabled can evoke the

protections of the statute. MetLife argues that the undisputed

facts indicate that Doukas is not disabled and, therefore,

MetLife is entitled to judgment as a matter of law.

For the purposes of the ADA, a disability means: "(A) a

physical or mental impairment that substantially limits one or

more of the major life activities . . .; (B) a record of such an

impairment; or (C) being regarded as having such an impairment."

42 U.S.C. § 12102 (1994). A plaintiff is protected by the ADA if

he or she falls within any one of these categories. See Abbott

2The court recognizes that a contrary inference can be drawn from the court's holding in Daigle v. Friendly Ice Cream Corp., 957 F. Supp. 554 (1997). However, upon further consideration, the court finds that limiting the scope of the reference to 2000a-3 to paragraph (a) is a better interpretation of the statute. v. Braqdon, 107 F.3d 934, 938 (1st Cir. 1997). Thus, to survive

summary judgment, Doukas only need proffer evidence sufficient to

raise a genuine issue about whether she fits within any one of

these definitions. The court finds that although Doukas may have

colorable arguments that she fits within each of the three

definitions, her strongest argument is that MetLife regarded her

as having an impairment.

According to the Code of Federal Regulations, an individual

is regarded as having an impairment when he or she

(i) Has a physical or mental impairment that does not substantially limit major life activities but that is treated by a private entity as constituting such a limitation; (ii) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or (ill) Has none of the impairments defined in paragraph (1) of this definition but is treated by a private entity as having such an impairment.

28 C.F.R. § 36.104 (1996). In this case, Doukas argues that

MetLife treated her as though she has an impairment that

substantially limits a major life activity.

A physical or mental impairment includes "[a]ny mental or

psychological disorder such as . . . organic brain syndrome [and]

emotional or mental illness." 28 C.F.R. § 36.104. In this case. Doukas's bipolar disorder clearly fits within the established

definition of an impairment.3 However, to be disabled under the

ADA, the plaintiff must not only have an impairment (or be

regarded as having an impairment), the impairment must be (or be

regarded as) one that "substantially limits one or more major

life activities . . . 42 U.S.C. § 12102.

It is clearly established that working is a major life

activity within the meaning of the statute. See 28 C.F.R. §

3 6.104; Cook v. Rhode Island Dept, of Mental Health, Retardation,

and H o s p s ., 10 F.3d 17, 25 (1st Cir. 1993). Of course, a plain­

tiff is not substantially limited in the major life activity of

3As a threshold matter, the ADA covers only individuals with an impairment. Thus this court rejects MetLife's argument that if Doukas is considered disabled because of her risk of becoming unable to work, individuals who use tobacco will similarly gualify as disabled because they face an increased risk of developing an impairment. Congress clearly intended to protect individuals with impairments, but did not intend to include all impaired individuals. The reguirement of a substantial limita­ tion on a major life activity limits the class of impaired individuals whom the ADA protects. Thus, while the presence of an impairment is a preliminary prereguisite to membership in the protected class, the finding of a substantial limitation is a subseguent weighing process. To determine whether the individual is substantially limited, the inguiry must look at the nature and severity of his or her limitation. See infra at 12-13. Because the presence of an impairment is a threshold reguirement under the ADA, tobacco users cannot gualify as disabled in the absence of a physical impairment or a perceived impairment. This result is clearly consistent with Congressional intent to protect a specific class of impaired individuals.

10 working if she is only disqualified from a specific job requiring

unique qualifications. See Cook, supra, 10 F.3d at 26. In a

perceived disability case, the plaintiff must show that the

defendant perceived him or her to be disqualified from a broad

range of jobs. See id. In this case, MetLife based its rejec­

tion of Doukas's application for insurance upon its conclusion

that she was likely to become totally disabled from work.

MetLife naturally was not concerned with what type of work Doukas

would be performing, but based its decision on the likelihood

that she would be unable to work altogether.

Although MetLife admits that its decision was based on its

perception that Doukas's bipolar disorder created a risk that she

would be unable to work, MetLife contends that it did not per­

ceive Doukas as disabled because it concedes that she is cur­

rently able to work. According to MetLife, the ADA's definition

of perceived impairment requires that the defendant regard the

plaintiff as having a present limitation on a major life

activity. Thus, MetLife contends, because it does not regard

Doukas as currently unable to work, the statute does not cover

her.

The court finds MetLife's reading of the statute far too

11 literal and incompatible with Congress's intent and judicial

interpretations of the ADA. Congress included the "regarded as"

definition in the ADA to protect individuals from prejudiced

attitudes and ignorance. See School Bd. of Nassau County v.

Arline, 480 U.S. 273, 284 (1986).4 Congress sought to broaden

the definition of disability precisely because it recognized that

fear, rather than the disability itself, can be a major factor

behind much discrimination. See id. at 285 n.13; H.R. Rep. No.

101-485, at 53 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 335.

The "regarded as" definition of disability seeks to eradicate

discrimination based on prejudice or irrational fear. Fear,

almost by definition, refers not to actual present conditions,

but to anticipated future conseguences. In contrast to

Congress's desire to create a broad, protective definition, the

definition propounded by MetLife would severely limit the reach

of the statute. For instance, reguiring proof that the defendant

regarded the plaintiff as presently limited would allow an

employer to refuse to hire an epileptic as long as the job appli­

4Ihe definition of "disabled" Congress employed in the ADA is substantially the same definition it used in the earlier Rehabilitation Act; thus courts have looked to Rehabilitation Act cases when interpreting the ADA. See Katz v. Citv Metal Co., Inc., 87 F.3d 26, 31 n.4 (1st Cir. 1996).

12 cant was not having a seizure at the time. Congress clearly did

not intend such a narrow definition. Thus limiting the ADA's

protection to instances when the defendant considered the plain­

tiff' s limitation to be immediate would defeat the central

purpose of the definition.

Consistent with the protective purpose of the ADA, courts

have avoided unnecessarily limiting the "regarded as" definition.

See, e.g.. Cook, supra, 10 F.3d at 23; Doe v. New York Univ., 666

F.2d 761, 775 (2d Cir. 1981). For instance, in Cook, the United

States Court of Appeals for the First Circuit upheld a finding of

perceived impairment based in part on an employer's fear that the

plaintiff's morbid obesity created a heightened risk of heart

attack. See Cook, supra, 10 F.3d at 23. Thus the Cook court

implied that a perception of future limitation could satisfy the

"regarded as" definition. See id. Similarly, in a Rehabilita­

tion Act case, the United States Court of Appeals for the Second

Circuit held that a university's refusal to readmit the plain­

tiff, who claimed to be unimpaired, "on the ground that she poses

an unacceptable risk to faculty, students, and patients makes

clear that she is 'regarded as having such an impairment.'" Doe,

supra, 666 F.2d at 775.

13 Although under the "regarded as" definition a defendant must

perceive an impairment as substantially limiting, the court holds

that the distinction between present and future limitations is

not dispositive. When weighing how substantial a limitation is,

the relevant considerations are the expected duration of the

impairment and the extent to which the impairment actually limits

a major life activity. See 28 C.F.R. p t . 36, app. B (1996).

Both the Egual Employment Opportunity Commission and the

Department of Justice recognize that a temporary impairment may

or may not gualify as a disability depending upon the nature and

severity of the impairment and its expected duration. See id.;

29 C.F.R. § 1630.2 (1996). Thus an impairment that limits a

major life activity in the present may not gualify as a

substantial limitation if it is temporary. Similarly, a future

limitation may or may not gualify as a substantial limitation

depending upon its nature, severity, and expected duration.

Thus the court finds the evidence that MetLife rejected

Doukas's application for insurance based upon the risk that she

would be unable to work creates an issue of fact as to whether it

regarded her as disabled within the meaning of the ADA. Of

course, the jury's determination of whether MetLife regarded

14 Doukas as having an impairment that substantially limits a major

life activity may be influenced by the remoteness of the risk

that MetLife perceived. Clearly, a threat that is perceived to

be immediate and likely will qualify more easily as a substantial

limitation than one which is merely speculative.

Conclusion

For the aforementioned reasons. Defendant's Motion for

Summary Judgment (document 37) must be and herewith is denied.

SO ORDERED.

Shane Devine, Senior Judge United States District Court October 21, 1997 cc: William D. Pandolph, Esq. Lee A. Perselay, Esq. Lynne J. Zygmont, Esq.