MEMORANDUM & ORDER
By motions argued and fully submitted on April 24, 1997, Defendant Israel Discount Bank of New York ("the Bank") moves pursuant to Rule 12(b)(6), Fed.R.Civ.P. 12(b)(6) to dismiss Plaintiff's second claim pleaded against it under Title III of the Americans With Disabilities Act of 1990 ("the ADA"), and Defendant Metropolitan Life Insurance Company ("Met Life") moves pursuant to Rule 12(b)(6), Fed.R.Civ.P.12(b)(6), to dismiss Plaintiff 's claim pleaded against it under Title III of the ADA.
The following facts are conceded for purposes of the motions. On September 14, 1987, the Bank hired Leonard F. as an Assistant Vice President. As a fringe benefit of his employment, the Bank provided him with short and long term disability insurance coverage through Defendant Met Life ("the Plan"). On or about April 19, 1994 Leonard F. became disabled as a result of depression, a "mental, psychoneurotic or personality disorder" within the terms of the Met Life Policy. He allegedly remained disabled and has not returned to work at the Bank since that date.
Leonard F. received short-term disability benefits under the Bank's short-term disability plan, which was a prerequisite to obtaining long-term disability benefits. He then applied for long-term disability benefits under the Bank's long-term disability insurance plan, which was provided by Met Life. In December of 1994, Met Life, the Bank's long-term disability insurer, determined that Leonard F. had a disability, and his claim for long-term disability benefits was accepted and approved retroactive to October of 1994.
The long-term disability coverage provided by Met Life for mental disorders is limited to two years of benefits, and in October 1996 payments were terminated. Had Plaintiff's disability been physical in nature, long-term insurance benefits would have continued until he reached the age of 65 (in the year 2009) or until he became cured.
On March 22, 1995 Plaintiff filed charges of discrimination against the Bank with the New York Regional Office of the Equal Employment Opportunity Commission ("EEOC") on the sole basis that the Plan's two year mental disorder limitation provision violates Title I of the ADA (Amended Complaint, P 21). On June 6, 1995, the EEOC issued a "right to sue" letter on the charge that Plaintiff filed against the Bank (Amended Complaint, P 23). As a result, Plaintiff filed the initial Complaint in this action asserting one claim and seeking a declaration: (1) that he is a "qualified individual with a disability"; and (2) that the benefit limitations for mental disorders contained in the Plan violate Title I of the ADA (Amended Complaint, "Wherefore" clauses, 1 &2).
By motion granted November 22, 1996 over opposition, Plaintiff was authorized to amend the Complaint to add Met Life as a party defendant and to assert an ADA Title III claim against both Met Life and the Bank. This Court granted the motion without reaching the merits because leave to amend should be freely granted.
The Bank's Motion to Dismiss the Second Claim Pleaded in the Amended Complaint.
The Court must determine the legal viability of Plaintiff's claim presuming the truth of the facts alleged in the Complaint. Samuels v. Air Transport Local 504, 992 F.2d 12, 15 (2d Cir. 1993).
Title III of the Americans With Disabilities Act of 1990 (42 U.S.C. 12182(a)) upon which the Second Claim is based, provides:
"No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privilege, 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." (Emphasis added)
Title III contains no reference to employment practices. The legislative history of the ADA confirms that Title III, as its plain meaning tells us, was intended to regulate owners and lessees of places of public accommodation, and not equality in conditions or terms of employment. "Title III is not intended to govern any terms and conditions of employment by providers of public accommodations . . . employment practices are governed by Title I." S. Rep. No. 116, 101st Cong., 1st Sess. 58 (1989).
The Bank does not dispute that its office is a place of public accommodation under Title III for purpose of customers making deposits and withdrawals. However, Plaintiff's grievance does not extend to the goods, services and facilities which the Bank provides to its customers, nor does Plaintiff claim that he was denied (equal) access to any of the Bank's services provided to the public. Plaintiff instead asserts that the Bank discriminated against him in the terms and conditions of a benefit provided to him in his health insurance because his disorder was mental rather than physical. This is an employment action and does not implicate the bank's role as an owner of a place of public accommodation.
Plaintiff relies on Carparts Distribution Center v. Automobile Wholesaler's Ass'n of New England, 37 F.3d 12, 17-18 (1st Cir. 1994) to support his contention that Title III applies to more than mere places, in the sense of physical structures. That opinion concedes that the issue is one of first impression and purports to find an ambiguity in the statute because one can avail himself or herself of services, such as a travel service, by telephone, without entering the physical premises of the travel agent, and that Congress could not have intended an absurd result. The First Circuit also proposes as an example of a Title III violation, the maker of tools, whose retail stores are easily accessible to disabled persons, but whose products have not been redesigned to be used by "persons with only quite limited disabilities." This decision, which is not binding precedent in this Court, is essentially dictum which flies in the face of the plain meaning of Title III and is not supported by the legislative history. The word "services" in the statute clearly is modified and limited by the words "of any place of public accommodation".
The lofty words of the First Circuit in Carparts are limited and tempered by the following:
"We think that at this stage it is unwise to go beyond the possibility that the plaintiff may be able to develop some kind of claim under Title III even though this may be a less promising vehicle in the present case than Title I. Not only the facts but, as we have already noted, even the factual allegations are quite sparse. In addition, because of our resolution of the Title I claims, this case must be remanded and is subject to further proceedings regardless of whether Title III remains in the case. While it is tempting to seek to provide further guidance, the nature of the record and the way the issues are addressed in the appellate briefs make it imprudent to do so."