Opinion
No. 4:02-CV-0252-A
April 22, 2002
MEMORANDUM OPINION and ORDER
Came on for consideration the motion of defendant, American Airlines, Inc., to dismiss and to strike. The court, having considered the motion, the response of plaintiff, Martina Alexander, the reply, the record, and applicable authorities, finds that the motion should be granted.
I. Plaintiff's Claims
On December 13, 2001, plaintiff filed her original complaint in the United States District Court for the Central District of California. The action was subsequently transferred to this court. Plaintiff alleges that she is a flight attendant employed by defendant. Plaintiff chose one of several medical plan options provided by defendant to meet her health insurance needs. The options included four standard plans, a Point-of-Service Plan, and an HMO. Plaintiff would like to have another child or children but could only conceive through assisted reproductive technology, including in-vitro fertilization treatments, not covered by the standard plan option she selected. Plaintiff alleges that defendant discriminates against women because its standard plan options do not cover pap smear tests, contraceptive medications or devices, or infertility medications and treatments. Plaintiff asserts four causes of action: First, defendant violates Title VII, 42 U.S.C. § 2000e to 2000e-17, by failing to provide coverage for pap smears. Second, defendant violates the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) ("PDA"), by excluding infertility treatment from the standard benefit plan. Third, defendant violates the Americans with Disabilities Act, 42 U.S.C. § 12101 to 12213 ("ADA"), by excluding coverage for infertility from its standard plan. And, fourth, defendant violates the PDA by denying coverage for contraceptives. Plaintiff additionally includes class action allegations, seeking certification of a class defined as: "All female employees of American Airlines working in California who at any time after April 23, 1999, were enrolled in one of American Airlines' Standard Medical Plans which excluded pap smears, infertility treatments/medications and/or contraception medications/devices." Pl.'s Compl. at 13.
II. Grounds of the Motion
Defendant urges that plaintiff's complaint should be dismissed in its entirety pursuant to FED. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. Defendant additionally urges that plaintiff's class action claims should be stricken pursuant to FED. R. CIV. P. 12(f) since there is no legal basis for plaintiff's underlying claims.
III. Applicable Standards Under FED. R. Civ. P. 12
The standards for deciding a motion under FED. R. Civ. P. 12(b)(6) are well-settled. The court's task is to determine "not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A complaint "should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The court construes the allegations of the complaint favorably to the pleader. Scheuer, 416 U.S. at 236. However, the court does not accept conclusory allegations or unwarranted deductions of fact as true. Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir. 1994) Nor is the court limited by the allegations in the complaint if they are contradicted by documents referenced in the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987).
Because a motion to dismiss attacks only a plaintiff's pleadings, the court is not considering the declaration submitted by plaintiff in opposition to the motion. The court is considering the conditions of the medical plans to which plaintiff refers in her complaint. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000) Plaintiff has not objected to use of the employee benefits guide that is attached as exhibit "A" to defendant's motion. Pl.'s Opp'n at 2 n. 2 (objecting only to exhibits B-D).
IV. Law Applied to the Facts
A. Whether Defendant's Standard Plan is Discriminatory as a Matter of Law.
Plaintiff contends that, because defendant's standard medical plan does not cover pap smears, contraceptive medications or devices, or infertility treatments and medications, the plan discriminates against women. By its motion, defendant responds that as long as the plan is equally accessible to all employees, it does not discriminate as a matter of law. See EEOC v. Staten Island Sav. Bank, 207 F.3d 144, 149-50 (2d Cir. 2000). With regard to the ADA at least, the Second Circuit noted that had Congress intended to control which coverages had to be offered by employers, it would surely have spoken more plainly. Id. at 149. And, "[s]o long as every employee is offered the same plan regardless of that employee's contemporary or future disability status, then no discrimination has occurred even if the plan offers different coverage for various disabilities." Id. at 150 (citations omitted) Plaintiff does not cite any authority to the contrary. The court agrees with the Second Circuit.
Nevertheless, the court considers defendant's alternative grounds for dismissing plaintiff's claims.
B. Whether Plaintiff's Claims are Procedurally Barred.
Defendant urges that plaintiff's claims are time-barred, because she did not file her EEOC charge within 300 days after defendant informed her that coverage was not available under her plan for pap smears, birth control pills, and infertility. See Kotev v. First Colony Life Ins. Co., 927 F. Supp. 1316, 1318 (N.D. Cal. 1996). Plaintiff maintains that her action is timely because she alleges a continuing violation, to wit: maintenance of a discriminatory system of providing health care benefits by defendant. See Green v. Los Angeles County Superintendent of Sch., 883 F.2d 1472, 1480 (9th Cir. 1989). She maintains that it would have been fruitless for her to have continually sought insurance benefits that were not available. Walls v. Miss. State Dep't of Pub. Welfare, 730 F.2d 306, 314 n. 7 (5th Cir. 1984). Giving plaintiff the benefit of the doubt, she has alleged a continuing violation.
Defendant additionally urges that plaintiff is estopped from raising her claims because she made the choice to select a plan that did not provide the coverage she now seeks. The court is not persuaded, however, that equitable estoppel would be appropriate based on plaintiff's pleadings alone. See Long v. Turner, 134 F.3d 312, 319 (5th Cir. 1998) (equitable estoppel requires detrimental reliance).
Defendant next urges that plaintiff lacks standing to raise any claim regarding contraceptives in that she suffered no injury in fact. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60 (1992). Not only does plaintiff not allege an injury in fact, she admits that there was none because she never sought benefits under the plan for contraceptives. Pl's Opp'n to Def.'s Mot. to Dismiss at 10 (plaintiff's physician provided her with sample contraceptives). Accordingly, she lacks standing to pursue the contraceptive related claims.
C. Sufficiency of the Pleadings.
(1) Plaintiff's First Cause of Action. In her first cause of action, plaintiff alleges that defendant's plan discriminates against women because it excludes coverage for pap smears but includes prostate cancer screening for males. The plan belies plaintiff's claims. It clearly states that annual routine physical exams are not covered. Def.'s Ex. A at 59. Pap smears are not covered if routine, but are covered if medically necessary. Id. The same is true of prostate cancer screening. The Employee Benefits Guide defines the scope of preventive care benefits provided by the standard plans as "mammograms (see page 39 for guidelines), and well-child care for children up to age 2 (including initial hospitalization following birth, all immunizations, and up to seven well-child care visits)." Id. at 70. Thus, under the standard plan, neither pap smears nor prostate cancer screening is covered as a preventive care service, and the first cause of action fails as a matter of law.
(2) Second Cause of Action. In her second cause of action, plaintiff alleges that defendant discriminates against women in violation of Title VII, as amended by the PDA, by excluding infertility treatment from coverage. The PDA provides that "women affected by pregnancy, childbirth, or related medical conditions" shall be treated the same as other persons. 42 U.S.C. § 2000e(k). Plaintiff urges that infertility or the inability to become pregnant is "pregnancy related" within the meaning of the PDA. She is incorrect as a matter of law. Krauel v. Iowa Methodist Med. Ctr., 95 F.3d 674, 679-80 (8th Cir. 1996); LaPorta v. Wal-Mart Stores, Inc., 163 F. Supp.2d 758, 770 (W.D. Mich. 2001). The failure to provide fertility treatment does not violate the PDA; thus, plaintiff's second cause of action fails.
(3) Plaintiff's Third Cause of Action. In her third cause of action, plaintiff alleges that defendant discriminated against her under the ADA by excluding infertility treatment and medication from coverage, Plaintiff admits that defendant may be shielded from liability if the plan at issue falls within the safe harbor provision of the ADA. Pl.'s Opp'n at 10. She further recognizes that she has the burden to overcome the safe harbor defense by showing that defendant's plan was a subterfuge intended to evade the ADA. Id. Plaintiff argues that she should be entitled to engage in discovery to determine whether the plan was a subterfuge. Had plaintiff pleaded that the plan was being used as a subterfuge, the court would agree. See Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28, 36, amended on reh'g, 204 F.3d 392 (2d Cir. 2000). Because she failed to plead the elements of her prima facie case, plaintiff's third cause of action must be dismissed. In any event, as the court previously noted, the failure to provide coverage for infertility does not violate the ADA. Krauel, 95 F.3d at 678. See EEOC v. Staten Island Sav. Bank, 207 F.3d at 150.
(4) Plaintiff's Fourth Cause of Action. For her fourth cause of action, plaintiff alleges that defendant discriminates by failing to provide insurance coverage for contraceptives. As stated earlier, plaintiff has no standing to raise this claim. Even assuming she had standing, this claim would be dismissed. By no stretch of the imagination does the prohibition against discrimination based on "pregnancy, childbirth, or related medical condition" require the provision of contraceptives as part of the treatment for infertility. Moreover, the plan does not cover provision of contraceptives to anyone, male or female. Def.'s Ex. A at 74.
5. Class Claims. Because none of plaintiff's underlying claims survive, the court will strike her class action allegations.
V. ORDER
For the reasons discussed herein, the court ORDERS that defendant's motion to dismiss be, and is hereby, granted and that plaintiff's claims be, and are hereby, dismissed, and that plaintiff's class action allegations be, and are hereby, stricken from the record.