United States Court of Appeals

For the First Circuit

No. 99-1449

JULIANNE TOMPKINS, KATHLEEN TOMPKINS, and JOHN TOMPKINS,

Plaintiffs, Appellants,

v.

UNITED HEALTHCARE OF NEW ENGLAND, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

 Stahl, Circuit Judge,

Bownes, Senior Circuit Judge, 

and Lipez, Circuit Judge.

John R. Mitchell for appellants.

Joan O. Vorster, with whom Mirick, O'Connell, DeMallie &

Lougee, LLP, was on brief, for appellee.

February 11, 2000
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LIPEZ, Circuit Judge. The plaintiffs, Julianne,

Kathleen, and John Tompkins, appeal from the district court's

dismissal, pursuant to Fed. R. Civ. P. 12(b)(6), of their claims

against United Healthcare of New England, Inc. ("United"),

alleging violations of federal and state anti-discrimination

statutes, as well as negligent and intentional infliction of

emotional distress, misrepresentation, and breach of written, oral,

and implied contracts. The district court found that the Employee

Retirement Income Security Act of 1974 ("ERISA") as amended, 29

U.S.C. § 1001 et. seq., preempted the state statutory and common

law claims of the plaintiffs and that their claims under the

Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213,

failed to state a cause of action. For reasons somewhat different

than those relied upon by the district court, we affirm.

I. BACKGROUND 

John and Kathleen Tompkins have a daughter, Julianne

Tompkins, who suffers from Trisomy 13, a chromosomal disease that

requires regular medical treatment. From 1993 to 1996, Julianne

received her treatment at the New England Medical Center ("NEMC").

 United is the Tompkinses' health care insurer. Between

1993 and 1996, United pre-approved and paid for Julianne's

treatment at NEMC. During that time the Tompkinses received their

insurance through Mr. Tompkins's employer, A.B. Dick. In 1996,

Mrs. Tompkins returned to work and her employer, New Bedford Harbor

Services, Inc. ("New Bedford"), offered her a United insurance
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policy with lower premiums. After emphasizing the importance of

Julianne's continued treatment and receiving assurances from United

representatives that changing employer-providers would not alter

their coverage, the Tompkinses switched and obtained their

insurance through New Bedford. 

Less than a week after the switch, however, United began

to deny payments for treatment provided to Julianne at NEMC.

Shortly thereafter, United notified the Tompkinses that Julianne's

therapies at NEMC would no longer be pre-approved or paid for

because Julianne was being "transitioned"--i.e., she was to receive

future treatment by United-covered physicians at less costly

hospitals closer to her home. In the Tompkinses' view, such

"transition" meant that Julianne would be unable to visit her

regular physicians or to benefit from the high level of expertise

and quality available at NEMC. 

The Tompkinses appealed United's denial of coverage at

NEMC and its decision to transition Julianne to other hospitals for

treatment. Ultimately, United's Member Relations Committee heard

the appeal and reversed the earlier benefit denial, agreeing to pay

back-costs for treatment already received and authorizing Julianne

to obtain her future treatments at NEMC. 

Despite that victory the Tompkinses initiated this

lawsuit, alleging that they suffered emotional distress and

physical ailments, and incurred costs and expenses including

attorneys' fees, as a result of "their efforts to reverse United's

discriminatory denial of Julianne's benefits." In Counts I - IV of
1ERISA's preemption clause, ERISA § 514(a), 29 U.S.C.

§ 1144(a), provides: "Except as provided in subsection (b) of this

section, the provisions of this subchapter . . . shall supersede

any and all State laws insofar as they may now or hereafter relate

to any employee benefit plan. . . ." (emphasis added).

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the complaint, the Tompkinses sought to recover under Titles I and

III of the ADA, the Massachusetts discrimination statute, Mass.

Gen. Laws. ch. 151B, and the Massachusetts Equal Rights Act Mass.

Gen. Laws. ch. 93 § 103. In Counts V - X, the Tompkinses alleged

various common law causes of action, including intentional

infliction of emotional distress, misrepresentation, and breach of

written, oral, and implied contracts. 

United moved to dismiss the Tompkinses' claims on the

grounds that, inter alia, (1) ERISA preempted the state statutory

and common law claims, and (2) the ADA claims failed to state a

cause of action. The district court agreed on both grounds.

First, the court held that the Tompkinses' state statutory and

common law claims "related to" United's ERISA-regulated health

insurance plan within the meaning of ERISA's preemption clause,1

and consequently, that ERISA preempted all of the Tompkinses' state

law claims. Second, the court ruled that the Tompkinses did not

state an ADA Title I claim because the allegations of the complaint

did not show that United was a "covered entity" under Title I.

Lastly, the court concluded that because "Plaintiffs cannot point

to any services which United has denied them, they fail to state a

claim under Title III." 

In affirming the dismissal of the Tompkinses' claims, we

rely on somewhat different reasoning than the court below because
2Although the district court did not address the

interrelationship between the ADA claims and ERISA preemption, the

court's conclusion that there were no viable ADA claims had the

effect of deciding the preemption issue on the basis we set forth

here.

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of the interrelationship between the ADA claims of the plaintiffs

and ERISA preemption. On appeal, the plaintiffs do not argue, as

they did below, that their state-law claims do not "relate to" the

United health care plan within the meaning of ERISA's preemption

clause. Instead, relying on the viability of their ADA claims, the

Tompkinses assert an alternative argument that they made below--

namely, that their Massachusetts statutory claims are exempt from

ERISA preemption as a necessary adjunct to the ADA's enforcement

scheme.2

We reject the premise of the argument by concluding that

both the Title I and the Title III ADA claims were properly

dismissed. The only discriminatory conduct alleged in the

complaint--United's initial decision to deny payment for Julianne's

treatment at NEMC--was fully redressed through United's ERISAmandated internal review process. Likewise, we find no merit to

the contention of the plaintiffs that United waived its right to

assert ERISA preemption as an affirmative defense. 

II. THE ADA CLAIMS

We review de novo a Rule 12(b)(6) dismissal. See Beddall

v. State St. Bank & Trust Co., 137 F.3d 12, 16 (1st Cir. 1998). In

reviewing a judgment entered under Rule 12(b)(6), we must take the
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factual allegations of the complaint as true and draw every

reasonable inference in favor of letting the lawsuit proceed. See

Langadinos v. American Airlines, Inc., No. 99-1120, 2000 WL 1998,

at *1 (1st Cir. Jan. 6, 2000). The complaint will survive as long

as it pleads sufficient facts to warrant recovery on any cognizable

theory of the case. See Garita Hotel Ltd. Partnership v. Ponce

Fed. Bank, F.S.B., 958 F.2d 15, 17 (1st Cir. 1992). 

To recover under either Title I or Title III of the ADA,

the aggrieved party must be able to show that he or she was denied

some benefit on account of a disability or an association with a

disabled person. Title I of the ADA provides in relevant part:

No covered entity shall discriminate against a

qualified individual with a disability because

of the disability of such individual in regard

to job application procedures, the hiring,

advancement, or discharge of employees,

employee compensation, job training, and other

terms, conditions, and privileges of

employment.

42 U.S.C. § 12112(a). Title III of the ADA provides in relevant

part:

No individual shall be discriminated against

on the basis of disability in the full and

equal enjoyment of the goods, services,

facilities, privileges, 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.

42 U.S.C. § 12182(a).

Our review of a benefit decision made pursuant to an

ERISA-regulated employee benefit plan "must focus . . . on the

determinations of the final decision-maker." Terry v. Bayer Corp.,

145 F.3d 28, 35-36 (1st Cir. 1998) (emphasizing that "a
3Although neither Mr. Tompkins nor Mrs. Tompkins are disabled,

they argue that United discriminated against them because of their

association with Julianne. Given our conclusion that there was no

denial of benefits, we need not address the validity of the

association discrimination claims, or whether Mr. Tompkins or Mrs.

Tompkins are "qualified individuals" under the ADA, or whether

United is a "covered entity" under the ADA.

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prerequisite to obtaining judicial review . . . is that the

claimant have exhausted the internal administrative remedies

available to him."). In the case at hand, the Tompkinses recovered

the benefits that they claimed were wrongfully denied on the basis

of discrimination by utilizing the internal administrative remedies

available to them. In reversing United's initial decision to deny

the benefits, United's Member Relations Committee ordered payments

of back-costs for treatment already received and authorized

Julianne to receive her future treatments at NEMC. Accordingly,

the Tompkinses were not denied any "terms, conditions, [or]

privileges of employment" under Title I or any "services" under

Title III attributable to United's initial decision to deny

Julianne benefits based on her disability.3 

A close examination of the complaint reveals that the

only discriminatory conduct alleged by the Tompkinses was United's

initial decision to refuse payments for Julianne's treatment at

NEMC. In the count of the complaint asserting a cause of action

under Title I, the Tompkinses allege in relevant part:

54. Defendant's establishment of a health

benefit plan, which wrongfully discriminates

against persons with Trisomy 13 and in

particular Julianne Tompkins, and the

Plaintiffs constitutes a violation of ADA.

. . . .
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56. As a direct and proximate result of these

violations of the ADA by Defendant, Plaintiffs

have lost and will continue to lose benefits

of their employment and contractual

relationship with the Defendant.

57. As a direct and proximate result of these

violations of the ADA by Defendant, Plaintiffs

have experienced and will continue to

experience emotional pain, suffering,

inconvenience, mental anguish, loss of

enjoyment of life, and other non-pecuniary

losses. 

The conduct alleged to violate the ADA is the "establishment of a

health benefit plan, which wrongfully discriminates against persons

with Trisomy 13." As a result, the Tomkinses assert that they

"lost and will continue to lose benefits." In specifying what they

mean by the discriminatory establishment of a health benefit plan,

the plaintiffs do not cite any terms of the plan itself. Instead,

they focus exclusively on United's initial decision to deny

benefits based on Julianne's disability, a determination that the

Tomkinses concede in their complaint was reversed when United's

Member Relations Committee "re-determined the appeal and

[determined that] United was now to pay for Julianne's care at New

England Medical Center, past and future, in full at regular HMO

rates." 

In the count of the complaint asserting a cause of action

under Title III, the Tompkinses allege:

48. . . . the Defendant has discriminated

against Plaintiffs, solely on the basis of

Julianne's disability, and Kathleen and John's

association with Julianne, by denying them

full and equal enjoyment of the services,

facilities, privileges, advantages, or

accommodations of a place of accommodation as

otherwise available to the general public; by
4We have held in Carparts Distribution Center, Inc. v.

Automotive Wholesaler's Association, Inc., 37 F.3d 12, 19-20 (1st

Cir. 1994), that "public accommodations" are not limited to actual

physical structures, and that the discriminatory denial of benefits

under a health care plan might, in some circumstances, state a

claim under Title III of the ADA.

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failing to make reasonable modifications in

its contracts, policies, practices, or

procedures if these were necessary to afford

Plaintiff Defendants' services, facilities,

privileges, advantages or accommodations; by

refusing or failing to offer continued preauthorization numbers, payment for New England

Medical Center treatment, access to therapy

sessions and other benefits as provided by its

contract of insurance with the Plaintiffs and

its past practice in a place or manner

accessible to the Plaintiff; and by failing

and refusing to offer alternative services. 

This count, like the Title I count, alleges no discriminatory

conduct aside from United's initial benefit denial determination.

Specifically, it asserts three ways in which United denied the

Tompkinses the benefits of a public accommodation,4 based on

Julianne's disability: (1) "by failing to make reasonable

modifications in its contracts, policies, practices, or procedures

if these were necessary to afford Plaintiff Defendants' services,

facilities, privileges, advantages or accommodations"; (2) "by

refusing or failing to offer continued pre-authorization numbers,

payment for New England Medical Center treatment, access to therapy

sessions and other benefits as provided by its contract of

insurance with the Plaintiffs and its past practice in a place or

manner accessible to the Plaintiff"; and (3) "by failing and

refusing to offer alternative services." Each of these allegedly

discriminatory actions focuses on United's decision to deny payment
5ERISA § 503, 29 U.S.C. § 1133, provides:

In accordance with regulations of the Secretary,

every employee benefit plan shall-- 

(1) provide adequate notice in writing to

any participant or beneficiary whose claim for

benefits under the plan has been denied,

setting forth the specific reasons for such

denial, written in a manner calculated to be

understood by the participant, and

(2) afford a reasonable opportunity to

any participant whose claim for benefits has

been denied for a full and fair review by the

appropriate named fiduciary of the decision

denying the claim.

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for Julianne's treatment at NEMC, a denial which, as discussed

above, was reversed through the internal review process. 

In an attempt to salvage their case, the Tompkinses

stress on appeal that their emotional and financial injuries

resulted not merely from the initial benefit denial, but also from

the delay and inconvenience in obtaining their benefits through

United's internal review process. Although the Tompkinses surely

suffered inconvenience and distress as a result of the delay in

receiving their health care benefits, that inconvenience and

distress was caused both by the initial denial of benefits, for

which there is no relief here because of the relief obtained on

administrative review, and by the usual operation of the ERISAmandated internal review process.5 In order to state a claim for

injuries resulting from the review process itself, the Tompkinses

would have to allege in the complaint that the internal review

process--as opposed to the original denial of benefits--was in some

way unusual or prolonged as a result of unlawful discrimination.
6Indeed, the complaint itself suggests that even United's

initial decision to deny coverage, rather than being the result of

discrimination, was based on the fact that "United no longer wanted

to pay for the high cost of New England Medical Center care."

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Here, the complaint is devoid of any allegation that United's

review of the Tompkinses claim was discriminatory or differed in

any way from the ordinary process afforded any plan member

challenging a benefit denial.6

In summary, the Tompkinses have already fully recovered

for the initial benefit denial; they make no allegations that the

review process itself was discriminatory. Therefore, they do not

allege the discriminatory denial of any benefit protected by Title

I or Title III of the ADA Their ADA claims were properly

dismissed. 

III. ERISA PREEMPTION

On appeal, the Tompkinses do not dispute that their state

law claims "relate to" the ERISA-regulated health care plan.

Rather, they argue that: (1) the state anti-discrimination

statutes, as part of the overall enforcement regime contemplated by

the ADA, are exempt from preemption by ERISA § 514(d), 29 U.S.C.

§ 1144(d), which excludes federal law from ERISA's preemptive

scope; and (2) United waived its right to assert ERISA preemption

through its health insurance contract. 
7This argument, if successful, would only save the

Massachusetts statutory claims from preemption.

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A. Federal Enforcement Scheme

The Tompkinses contend that causes of action based on

state human rights legislation are not preempted by ERISA pursuant

to the Supreme Court's decision in Shaw v. Delta Air Lines, Inc.,

463 U.S. 85 (1983).7 In Shaw, the state of New York argued that

the New York Human Rights Law, which required employers to pay

pregnancy leave to employees, was exempted from preemption by ERISA

§ 514(d), 29 U.S.C. § 1144(d), which provides that "[n]othing in

this subchapter shall be construed to alter, amend, modify,

invalidate, impair, or supersede any law of the United States."

This was so, New York argued, because the New York Human Rights Law

was a necessary part of Title VII's overall enforcement scheme, and

hence within ERISA's federal law exemption from preemption. See

463 U.S. at 100-01.

The Court acknowledged that "State laws obviously play a

significant role in the enforcement of Title VII," and that "Title

VII requires recourse to available state administrative remedies."

Id. at 101. "Given the importance of state fair employment laws to

the federal enforcement scheme, pre-emption of the [New York] Human

Rights Law would impair Title VII to the extent that the Human

Rights Law provides a means of enforcing Title VII's commands."

Id. at 102 (emphasis added). The Court concluded, however, that

the practices made unlawful under the New York Human Rights Law--

failing to pay benefits for pregnancy leave--were not unlawful
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under Title VII. Thus, it "fail[ed] to see how federal law would

be impaired by pre-emption of a state law prohibiting conduct that

federal law permitted." Id. at 103-04. The Court therefore

concluded that "pre-emption would not impair Title VII within the

meaning of § 514(d)." Id. at 103. 

The Tompkinses assert correctly that Shaw's reasoning

applies to the case at bar. We have held that the ADA, like Title

VII, contemplates that state laws will contribute to the overall

federal enforcement regime. See Carparts Distrib. Ctr., Inc. v.

Automotive Wholesaler's Ass'n, 37 F.3d 12, 20-21 (1st Cir. 1994).

Thus, if the Tompkinses' state statutory claims targeted conduct

unlawful under the ADA, those state claims would be exempt from

ERISA preemption pursuant to ERISA § 514(d). See Shaw, 463 U.S. at

102-04; Carparts, 37 F.3d at 20-21 (vacating dismissal of state law

claims on grounds that they might be found exempt from ERISA

preemption as part of the ADA's enforcement scheme). However, we

have already concluded that the Tompkinses have failed to state a

claim under the ADA. Under these circumstances, because the

plaintiffs do not contest the district court's finding that their

state law claims “relate to” the United health benefits plan, and

because the ADA's enforcement regime does not depend on the

availability of the state statutory claims, the state claims are

subject to ERISA preemption. 
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B. Waiver

The Tompkinses assert that United waived its right to

claim ERISA preemption based on this provision of its contract with

the Tompkinses to provide health insurance: 

In compliance with state and federal law, PLAN

shall not discriminate on the basis of age,

sex, color, race, disability, marital status,

sexual preference, religious affiliation, or

public assistance status. 

The Tompkinses argue that this commitment to "compliance with state

law" operates as an express waiver of United's right to invoke

ERISA-preemption as an affirmative defense. We disagree. The

cited provision does not approach the type of clear and express

language typically required for waiver of a known right. See,

e.g., Fowler v. Boise Cascade Corp., 948 F.2d 49, 57-58 (1st Cir.

1991) (under Maine law, applying strict construction standard to

waiver of employer immunity under an indemnification agreement);

Irons v. Fed. Bureau of Investigation, 880 F.2d 1446, 1452 (1st

Cir. 1989) ("Courts sometimes say an individual has 'waived' a

protection the law grants him when the individual expressly says

that he wishes to do without the protection."); Jardines Bacata,

Ltd. v. Diaz-Marquez, 878 F.2d 1555, 1559 (1st Cir. 1989) (waiver

must be "unequivocal"). This provision merely expresses United's

intent to administer the plan in accordance with applicable laws.

It does not waive any rights afforded by federal law.

Although in some circumstances contractual waiver of

statutory rights is permissible, see, e.g., Canal Elec. Co. v.

Westinghouse Elec. Corp., 548 N.E.2d 182, 187 (Mass. 1990), we find
8ERISA contains, inter alia, reporting and disclosure

requirements (the ERISA 100s), see 29 U.S.C. § 1021 et seq.,

participation and vesting guidelines (the ERISA 200s), see 29

U.S.C. § 1051 et seq., funding rules (the ERISA 300s), see 29

U.S.C. § 1081 et seq., rules of fiduciary responsibility (the ERISA

400s), see 29 U.S.C. § 1101 et seq., and criminal and civil

enforcement provisions (the ERISA 500s), see 29 U.S.C. §

1131(criminal enforcement); 29 U.S.C. § 1132 et seq. (civil

enforcement).

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no case holding that parties may contractually waive the right to

assert ERISA preemption. Our decision in Wolf v. Reliance Standard

Life Ins. Co., 71 F.3d 444, 449 (1st Cir. 1995), relied upon by the

Tompkinses, merely holds that ERISA preemption, as an affirmative

defense rather than as an element of the court's jurisdiction, is

waived if not timely raised. But Wolf, which addresses only

procedural waiver, offers no support for the Tompkinses'

contractual waiver argument.

Although "[a] statutory right or remedy may be waived

when the waiver would not frustrate the public policies of the

statute," see Canal Elec. Co., 548 N.E.2d at 187, "[a] statutory

right may not be disclaimed if the waiver could 'do violence to the

public policy underlying the legislative enactment,'" see id.

(quoting Spence v. Reeder, 416 N.E.2d 914, 924 (Mass. 1981)).

ERISA provides an elaborate set of rules "designed to promote the

interests of employees and their beneficiaries in employee benefit

plans." Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90 (1983).8

In New York State Conference of Blue Cross & Blue Shield Plans v.

Travelers Ins. Co., 514 U.S. 645 (1995), the Supreme Court stated

that in passing ERISA Congress intended 
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to ensure that plans and plan sponsors would

be subject to a uniform body of benefits law;

the goal was to minimize the administrative

and financial burden of complying with

conflicting directives among States or between

States and the Federal Government . . ., [and

to prevent] the potential for conflict in

substantive law . . . requiring the tailoring

of plans and employer conduct to the

peculiarities of the law of each jurisdiction.

Id. at 656-57 (alterations in original). Allowing parties to opt

out of ERISA preemption contractually would enable plan sponsors to

avoid compliance with ERISA's regulatory structure and would

subject ERISA-regulated plans to a multitude of divergent state law

causes of action. These results would conflict with Congress's

objective of establishing a "uniform body" of federal employee

benefits law under ERISA. 

We conclude, therefore, that United did not waive its

right to raise ERISA preemption as an affirmative defense to the

Tompkinses' state law claims, and that ERISA preempts all of those

claims. 

Affirmed.