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March 26, 1997


The opinion of the court was delivered by: CASTILLO

 Plaintiff Hilary Anderson brings this employment-based action against the following defendants: the Illinois Bell Telephone Company, now known as Ameritech Illinois and Ameritech (collectively, "Ameritech"); the Ameritech Sickness Disability Benefits Plan ("ASDBP"); and the Ameritech Comprehensive Health Care Plan ("ACHCP"). She brings claims under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, against Ameritech only (Count I); Title I of the Americans with Disabilities Act of 1990 ("ADA") and Title I of the Civil Rights Act of 1991 against Ameritech only (Count II); the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1132(a), against Ameritech and the ASDBP (Count III); the Consolidated Omnibus Budget Reconciliation Act ("COBRA"), 29 U.S.C. § 1161, against Ameritech and ACHCP or, alternatively, against Ameritech alone under 29 U.S.C. §§ 1132(a)(2) and (3) (Count V); and state law claims alleging common law breach of contract and violations of the Illinois Wage Payment and Collection Act, 820 ILCS 115/4, against Ameritech only (Count IV). Pending before the court is the defendants' motion to dismiss various aspects of Counts II through V.


 Anderson's first amended complaint alleges the following facts which are taken as true on a motion to dismiss. Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir. 1996). Ameritech, a corporation with more than 500 employees, maintains two employee benefit plans, the ASDBP and the ACHCP. Ameritech is a fiduciary to the ACHCP. In addition, Ameritech provides for the payment of benefits under each of these plans from its assets. Anderson was employed by Ameritech under the terms of an oral contract for approximately fifteen years. The last position that Anderson held at Ameritech was that of a Level 2A Manager.

 Due to illness, Anderson went on sick leave in early November 1992. Anderson's last day of active work was November 6, 1992, and she began collecting disability benefits under the ASDBP on November 17, 1992. Anderson was eligible to receive these benefits for one full year. Ameritech prematurely stopped the payment of benefits to Anderson on November 1, 1993, at which time Anderson requested payment of benefits through November 17, 1993. In addition, Anderson sought an extension of benefit payments through November 30, 1993. This request was submitted to the Ameritech Employees' Benefit Committee and was subsequently approved in March 1994. Despite the Committee's approval, however, Anderson has never received benefits for the period of November 1, 1993 through November 30, 1993.

 On November 17, 1993, Anderson sent a letter to Ameritech stating that she would be ready, willing, and able to return to work as of December 1, 1993. Although Anderson had not resigned and continued to await assignment, Ameritech failed to assign any duties to her. During the spring of 1994, Ameritech sent Anderson letters congratulating her on completing 15 years in service, and other materials designed for current employees. Ameritech terminated Anderson's employment on June 28, 1994. On July 7, 1994, Ameritech sent Anderson a notice informing her of her right to elect continuing life insurance coverage. Ameritech filled Anderson's position with individuals under the age of forty.

 Anderson called Ameritech every month beginning in July, 1994 with questions regarding her health insurance coverage. Until October 18, 1995, Ameritech and the ACHCP continuously advised Anderson that she was covered under the ACHCP. On October 11, 1995, Anderson's doctor verified Anderson's coverage under the ACHCP. Anderson's doctor then scheduled Anderson for surgery which was performed on October 16, 1995. In November of 1995, Anderson learned that the ACHCP refused to pay for her surgery, as her health care coverage had been retroactively canceled effective October 1, 1995. Upon cancellation of Anderson's health care coverage, neither Ameritech nor the ACHCP provided Anderson with notice of her right to elect continuation or conversion health insurance coverage.


 In considering a motion to dismiss, a court takes all well-pled factual allegations as true, and views those allegations and any reasonable inferences drawn from them in the light most favorable to the plaintiff. Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir. 1996). All ambiguities are resolved in the plaintiff's favor. Curtis v. Bembenek, 48 F.3d 281, 283 (7th Cir. 1995). "[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 [her] claim that would entitle [her] to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

 When ruling on a motion to dismiss, a court may consider exhibits attached to the complaint. FED. R. CIV. P. 10(c) ("A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes."); Schnell v. City of Chicago, 407 F.2d 1084, 1085 (7th Cir. 1969). In addition, documents that were not attached to the complaint but are referred to in the complaint and are central to the claims raised will be treated as part of the pleadings. Wright v. Assoc. Ins. Cos., Inc., 29 F.3d 1244, 1248 (7th Cir. 1994).


 The defendants have not raised any arguments as to Count I in this motion to dismiss. Thus, the court will first consider the defendants' motion as it relates to Count II, followed by Counts III, V, and IV in that order.

 Count II: Damages Recoverable Under the ADA

 In Count II, Anderson alleges that Ameritech violated the ADA and the Civil Rights Act of 1991. Anderson prays for compensatory damages in an unspecified amount as well as punitive damages in the amount of $ 300,000. Ameritech states that the ADA limits recovery of compensatory and punitive damages to a combined total amount of $ 300,000. Ameritech moves to strike Count II to the extent that it seeks damages in excess of the statutory limit.

 Anderson has conceded, as she must, that the statutory limit on damages for a violation of the ADA by an employer with more than 500 employees is $ 300,000. 42 U.S.C. § 1981a(b)(3)(D) (1997). Ameritech responds to Anderson's concession by arguing that Count II should be stricken in its entirety and Anderson should be required to amend her complaint to comport with the damage limitations of the ADA. Rather than requiring the plaintiff to amend her complaint, this Court prefers to simply strike the unavailable remedy. See Cabin v. Plastofilm Indus., Inc., 1996 U.S. Dist. LEXIS 12523, No. 96 C 2564, ...

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