until the late stages of the disease. The fact that a person has cancer does not make him "disabled" per se under the ADA, and plaintiff has not produced evidence of disability other than to simply state that Hirsch had cancer.
Although plaintiff has not produced sufficient evidence to show that Hirsch was "substantially limited" by a "disability," she can still survive defendants' motion if she can show that, regardless of any actual disability, Hirsch's employer (Photo-Vend) regarded Hirsch as disabled and took negative employment-related action against him as a result. See 42 U.S.C. § 12012(2)(A); 29 C.F.R. 1630.2(k). Specifically, she would have to show that even if Hirsch was not "disabled" under the ADA definition described above, his employer nonetheless treated him as though he were disabled and took discriminatory action against him on the basis of the perceived disability. 29 C.F.R. § 1613.702(e); Hamm v. Runyon 51 F.3d 721, 725 (7th Cir. 1995).
Plaintiff has not produced evidence showing that Photo-Vend and its officers regarded Hirsch as disabled under the above standards. She argues that we should infer or assume that Photo-Vend regarded Hirsch as disabled from the fact that Photo-Vend knew that Hirsch had cancer. However, such reasoning would lead to the conclusion that any employee who informed his employer that he suffered from a life-threatening or terminal disease would become "disabled" for purposes of the ADA. We decline to rule so broadly. Plaintiff must produce evidence that the employer viewed the employee as someone who had a disability that seriously limited his ability to work or perform other "major life activities." Plaintiff has produced no such evidence.
2. Whether Hirsch Was Terminated "Because Of" the Disability.
Defendants next argue that even assuming plaintiff could produce the specific evidence needed to show that Hirsch had a "disability" as defined by the ADA, plaintiff has failed to produce evidence showing that Hirsch was fired "because of" his disease, as is required to make out the fourth element of the prima facie case. We agree. As we mentioned earlier, all of the evidence presented by plaintiff indicates that Hirsch was terminated because Photo-Vend wanted to cut back on expenses, not because the Schmitts had some negative stereotype about or bias against persons with cancer. The law requires plaintiff to produce more. Siefken v. Village of Arlington Heights, 65 F.3d 664, 666 (7th Cir. 1995). The evidence presented does not indicate that the Schmitts acted against Hirsch specifically because he had cancer. If anything, they terminated Hirsch to avoid the financial repercussions of his illness, without any thought as to what the qualities of his illness were.
For the reasons stated above, we find that plaintiff has failed to produce evidence sufficient to make out a prima facie ADA claim. Accordingly, defendants' motion for summary judgment on Count I is granted.
III. Count III: Whether Defendants Intentionally Interfered with Hirsch's Rights Under the Health Insurance Plan in Violation of ERISA.
In Count III, plaintiff alleges that the defendants violated ERISA by firing Hirsch, because they did so in order to intentionally interfere with Hirsch's right to receive benefits from the employee health insurance plan. Defendants move for summary judgment arguing, first, that Sharon Hirsch has no standing to pursue this case on her husband's behalf and, second, that plaintiff has not produced evidence sufficient to make out a prima facie case. We disagree.
A. Standing Under ERISA
ERISA provides that anyone who is a "beneficiary," "participant," or "fiduciary," as defined in the statute, may bring an action for wrongful interference with the right to receive benefits under an employee benefits plan. 42 U.S.C. § 1332. Sharon Hirsch, who represents her deceased husband as plaintiff in this case, does not fall into any of these categories and defendants argue that she consequently has no standing to sue under ERISA. To support this argument they rely on McKinnon v. Blue Cross and Blue Shield, 935 F.2d 1187 (11th Cir. 1991). Their reliance is misplaced.
In McKinnon, the original plaintiff was an employee of U.S.Steel who had placed a claim for costs associated with his lung surgery with the company's health insurance carrier, Blue Cross-Blue Shield (Blue Cross). Id. at 1190. When the insurance company refused to pay, he brought a Section 510 claim against Blue Cross. Id. at 1189. While the action was pending, the claimant died and his daughter, Belinda McKinnon (McKinnon), an employee of Blue Cross, was appointed executrix of his estate and substituted as plaintiff in the lawsuit against Blue Cross. Id. at 1190. In connection with the suit, McKinnon gave a deposition in which she accused Blue Cross of fraud and bad faith. Id. Blue Cross, her employer, discharged her as a result of these accusations. Id. McKinnon then filed suit, claiming among other things that Blue Cross had violated Section 510 by firing her. Id. Although the case does not specify, plaintiff's theory of recovery necessarily must have been that by firing her for pursuing her father's lawsuit, Blue Cross violated her right to receive her father's benefits on his behalf and pursue his personal claim. Id. The court granted Blue Cross' motion for summary judgment in McKinnon's suit, on the grounds that McKinnon was not a beneficiary or participant in a plan covered by ERISA and, consequently, could not pursue a Section 510 claim in her own right. The ruling, however, did not affect her right to proceed with her father's suit in a representative capacity.
In the present action Hirsch's wife was substituted as a plaintiff when he died while this action was still pending. Mrs. Hirsch did not bring this action on her behalf. Rather, she is representing her deceased husband, and for the purposes of this case stands in his shoes. In McKinnon, the plaintiff was pursuing two Section 510 claims, one on behalf of her deceased father for the denial of medical benefits, and another in a personal capacity resulting from the loss of her job. The case dismissed only the latter complaint and is, thus, not useful to the defendants in the present action.
B. Plaintiff's Prima Facie Case
Defendants next argue that plaintiff cannot make out a prima facie Section 510 claim and are consequently entitled to judgment as a matter of law. To make out a prima facie case under ERISA's retaliation provision, plaintiff must show that he "(1) belongs to the protected class; (2) was qualified for his job position; and (3) was discharged or denied employment under circumstances that provide some basis for believing that prohibited intent to retaliate was present." Grottkau v. Sky Climber, Inc., 79 F.3d 70, 73 (7th Cir., 1996); Salus v. GTE Directories Service Corp., 104 F.3d 131, 135 (7th Cir. 1997). With respect to the third element, plaintiff must produce evidence that an employer's adverse actions were specifically intended to retaliate against him for the exercise of rights under the benefits plan or to interfere with the attainment of those rights. See, e.g., Owens v. Storehouse, Inc., 984 F.2d 394 (11th Cir. 1993). Finally, in addition to the elements listed, to survive defendants' motion for summary judgment, plaintiff must also produce evidence that creates some issue of fact as to whether the employer's proffered non-discriminatory reasons for his discharge were pretextual. Grottkau at 73.
In the present action defendants do not deny that Hirsch was covered by the group health insurance policy or that he was qualified for his position. Rather, they argue that plaintiff has been unable to produce evidence on the third element of a prima facie ERISA case -- the requirement that Photo-Vend terminated Hirsch with the specific intent to interfere with his use of the company's health insurance plan. In fact, in their motion for summary judgment they claim that it is completely uncontested that Photo-Vend offered to continue Hirsch's health coverage at Photo-Vend's own expense subsequent to Hirsch's separation from the company (Def. Mot. for Sum.Jdgmt. at 13). Certainly if this were true, we would seriously doubt whether plaintiff could make out a prima facie case because plaintiff would essentially be arguing that Photo-Vend had the specific intent to interfere with Hirsch's health care plan while conceding that Photo Vend's stated intent was to continue to provide Hirsch with exactly the same health coverage after his termination as he had before. Defendants, however, offered to continue Hirsch's health care coverage for nine months after his termination. This is not the same as having insurance for an indefinite period of time, particularly when one is terminally ill. Moreover, Hirsch clearly did not think that his health care was comparable before and after his termination, because if he had, he would not have brought this action.
Thus, contrary to defendants' arguments, we find that plaintiff has produced sufficient evidence to meet her burden on the third element (the specific intent requirement) of an ERISA prima facie case. The depositions provided by plaintiff reveal that defendants were aware of and concerned about their rising health insurance premiums. This concern was amplified by the fact that Photo-Vend's growth was slowing. Defendants' controlling officers were aware that Hirsch suffered from cancer and had discussed the fact that Hirsch's health care costs may have been a factor in driving up insurance costs. In May 1994 they met with Photo-Vend's insurance agent, where they were informed that the health premium for the next year would increase by ten to twelve per cent. In July Elmer and Carl Schmitt discussed what the company would save by terminating Hirsch and in late July or early August of 1994 Photo-Vend terminated Hirsch.
We find that this evidence is sufficient to support the allegation that defendants terminated Hirsch with the specific intent to interfere with Hirsch's health care benefits. Moreover, the same facts lead us to conclude that plaintiff has met her burden on the issue of pretext. As explained above, in addition to making out a prima facie Section 510 case, in order to survive defendants' motion for summary judgment plaintiff must also point to some evidence from which a jury could conclude that the defendants' stated reasons for terminating an employee are untrue. Grottkau at 73. Defendants claim that Hirsch was fired only because there was no further need for someone to fill his position of new site- finder. At a minimum, however, the facts listed above create an issue of fact about whether Hirsch was actually fired because his health care expenses were becoming a financial burden to Photo-Vend at a time when the company was already economically vulnerable.
We consequently conclude that plaintiff has made out a prima facie case under Section 510 of ERISA. Accordingly, we deny defendants' motion for summary judgment on Count III of plaintiff's first amended complaint.
For the reasons stated above, we grant the defendants' motion for summary judgment on Count I of plaintiff's first amended complaint, and deny defendants' motion on Count III.
JAMES B. MORAN
Senior Judge, U.S. District Court
November 20, 1997.
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