1

42 U.S.C. § 12101 et seq. (1994). Appellant initially

sought relief under both § 510 of the Employee Retirement Income

Security Act of 1974 (ERISA), 29 U.S.C. § 1140 (1994), and the

ADA, but subsequently dismissed the ERISA claim. 

United States Court of Appeals,

Eleventh Circuit.

No. 95-8533.

August GONZALES, as Administrator of the Estate of Timothy

Bourgeois, deceased, Plaintiff-Appellant,

v.

GARNER FOOD SERVICES, INC.; Willis Corroon Administrative

Services Corporation; Willis Corroon Corporation of Georgia,

Defendants,

Garner Fast Foods, Inc., Defendant-Appellee,

American Association of Retired Persons (AARP); Equal Employment

Opportunity Commission (EEOC); American Medical Association,

American Public Health Association, American Foundation for AIDS

Research, Gay Men's Health Crisis; American Civil Liberties Union,

the ARC, Gay and Lesbian Advocates and Defenders, Inc., National

Alliance for the Mentally Ill, National Association of People With

AIDS, National Association of Protection and Advocacy Systems,

National Minority AIDS Council, Equal Employment Advisory Council,

Amici Curiae.

Aug. 2, 1996.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 1:93-CV-1639-JOF), J. Owen Forrester,

Judge.

Before ANDERSON and BLACK, Circuit Judges, and HENDERSON, Senior

Circuit Judge.

BLACK, Circuit Judge:

Appellant August Gonzales filed this action under Title I of

the Americans With Disabilities Act of 1990 (ADA),1 alleging that

Defendants discriminated against a former employee, Timothy

Bourgeois, by imposing a cap for AIDS-related treatment on health

insurance benefit coverage Bourgeois elected to continue following
 2

Since the district court decided this case on a motion to

dismiss, we have taken the allegations in Appellant's complaint

as true and have construed them liberally in favor of Appellant. 

See Walker Process Equip., Inc. v. Food Mach. and Chem. Corp.,

382 U.S. 172, 174-75, 86 S.Ct. 347, 349, 15 L.Ed.2d 247 (1965). 

 329 U.S.C. § 1161 et seq. (1994). COBRA amended ERISA to

require each employer to allow former employees to elect to

continue coverage under the employer's group health insurance

plan for up to 18 months following termination of employment. 

Id. 

his termination. The district court granted a motion to dismiss

jointly filed by Garner Fast Foods, Inc. (GFF) and Garner Food

Services, Inc. (GFS). Thereafter, Appellant dismissed claims

against all Defendants other than GFF and moved for reconsideration

of the order of dismissal. This motion was denied, and Appellant

appeals. We affirm.

I. BACKGROUND2

Bourgeois was employed at a Hardee's restaurant, owned and

operated by GFS. GFS sponsored and administered a group welfare

benefit plan which provided health insurance coverage up to a $1

million lifetime limit. Bourgeois participated in the health

insurance benefit plan through his employment.

Bourgeois was diagnosed with AIDS in February 1991, and GFS

learned of his condition when he submitted health insurance claims

for medical treatment. GFS discharged him in April 1991 to avoid

paying future health insurance claims. Following his termination,

Bourgeois paid the necessary premiums to continue his health

insurance benefit coverage pursuant to the Consolidated Omnibus

Budget Reconciliation Act of 1985 (COBRA).3

At least partly because of Bourgeois' continued participation

in the health insurance benefit plan after his discharge, GFS
 4

At the outset, GFF denies liability on the bases that

Bourgeois worked only for GFS and not GFF and never sought

employment from GFF. Citing this Court's decision in Bud Antle,

Inc. v. Eastern Foods, Inc., 758 F.2d 1451 (11th Cir.1985),

Appellant counters that GFF is liable under theories of de facto

merger and mere continuation because GFF took over the operations

of the defunct GFS with identical officers, directors, and

virtually an identical sole shareholder, maintained the same

health plan and AIDS cap first implemented by GFS, and assumed

all liabilities of GFS. We decline to resolve this issue. Given

our holding that Appellant is not entitled to relief under the

ADA, GFF is not liable even if it is a successor in interest to

GFS. 

amended the plan on October 1, 1991, to cap AIDS-related treatment

to $10,000 annually with a lifetime maximum limit of $40,000. GFS

ceased operations on March 31, 1992. Thereafter, GFF continued

GFS' operations, and became the sponsor of Bourgeois' plan.4

Before he died on September 6, 1992, Bourgeois had exhausted the

benefits available to him under the AIDS cap limit and was denied

payment for claims submitted in excess, totaling approximately

$90,000.

II. STANDARD OF REVIEW

 The district court's denial of Appellant's motion for

reconsideration is reviewed for abuse of discretion. See Region 8

Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 806

(11th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 683, 126

L.Ed.2d 651 (1994). Since our review requires us to focus on

conclusions of law made by the district court in granting the

motion to dismiss, we review these questions of law de novo. See

O'Reilly v. Ceuleers, 912 F.2d 1383, 1385 (11th Cir.1990).

III. DISCUSSION

The ADA was enacted on July 26, 1990, but did not become
 5

The dissent refers to the two year span between the

enactment and effective dates as a "phase-in period," the purpose

of which was "to give employers time to take those actions

necessary to come into compliance with the requirements of the

Act"; however, the dissent cites no authority indicating this

was Congress' intent. 

 6It is undisputed that GFS met the ADA definition of

"employer." See 42 U.S.C. § 12111(5)(A). 

effective until July 26, 1992.5 Pub.L. No. 101-336, § 108, 104

Stat. 327, 337 (1990). Title I of the ADA addresses disability

discrimination by employers.6

 As applied to private employers,

Title I is not retroactive. See O'Bryant v. City of Midland, 9

F.3d 421, 422 (5th Cir.1993); see also 1990 U.S.C.C.A.N. 601

(statement by President George Bush upon signing S. 933). Against

this background, courts have concluded that Title I applies only to

wrongful acts committed after the effective date of the ADA. See,

e.g., O'Bryant, 9 F.3d at 422. Since the AIDS cap was implemented

in October 1991, prior to the effective date of the ADA, GFF argues

from the outset that Appellant's claim is barred.

Appellant counters that his claim is actionable on the basis

that the AIDS cap "endured" after the effective date of the ADA,

thereby making GFF's refusal to pay health benefits from then until

Bourgeois' death a continuing violation of the Act. In determining

whether maintenance of the AIDS cap after July 26, 1992,

constituted a continuing violation of the ADA, this Court must

distinguish between the present consequences of a one-time

violation, which would not qualify as a continuing violation, and

the continuation of the violation into the present, which would.

See Beavers v. American Cast Iron Pipe Co., 975 F.2d 792, 796 (11th

Cir.1992). As did the district court, we will assume for purposes
 7

Thus, § 12112(a) does not utilize the term "individual" in

a broad manner, as suggested by the dissent, but rather within a

specific term of art—"qualified individual with a

of our analysis that the denial of AIDS-related health care

benefits after the effective date of the ADA could constitute a

continuing violation of the Act. See Bazemore v. Friday, 478 U.S.

385, 395, 106 S.Ct. 3000, 3006, 92 L.Ed.2d 315 (1986) ("A pattern

or practice that would have constituted a violation of Title VII,

but for the fact that the statute had not yet become effective,

became a violation upon Title VII's effective date."); Beavers,

975 F.2d at 797-98 (holding that the continued maintenance of a

pre-Title VII discriminatory benefits policy is actionable after

the effective date of Title VII as a continuing violation of the

statute).

GFF argues that even if maintaining the AIDS cap beyond the

effective date of the ADA could constitute a continuing violation,

Appellant fails to state a prima facie case of discrimination under

Title I of the Act. The Title I general rule states: "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) (emphasis supplied). A "qualified individual with a

disability" (QID) is defined as "an individual with a disability

who, with or without reasonable accommodation, can perform the

essential functions of the employment position that such individual

holds or desires...."7 Id. § 12111(8) (emphasis supplied).
disability"—explicitly defined in § 12111(8). 

 8

See 28 C.F.R. §§ 35.104 (defining "disability" to include

HIV disease at (1)(ii)), 36.104 (same at (1)(iii)) (1995). 

 9This is clear from the statute, see, e.g., 42 U.S.C. §§

12101(a)(5), 12112(a), (b)(2), (b)(4), the legislative history,

see H.R.Rep. No. 485(II), 101st Cong., 2d Sess. 59 (1990),

reprinted in 1990 U.S.C.C.A.N. 303, 341 ("[E]mployers may not

deny health insurance coverage completely to an individual based

on the person's diagnosis or disability."); H.R.Rep. No.

485(II), 101st Cong., 2d Sess. 71 (1990), reprinted in 1990

U.S.C.C.A.N. 445, 494, and the interpretive regulations, see,

e.g., 29 C.F.R. § 1630.4(f) (it is unlawful for an employer to

discriminate on the basis of disability in the provision of

"[f]ringe benefits available by virtue of employment"); 56

Fed.Reg. 35726, 35746 (July 26, 1991) (EEOC Interpretative

Guidance on 29 C.F.R. §§ 1630.4, 1630.5). 

The parties do not dispute that AIDS is a disability

recognized under the ADA. 8 It is further undisputed that fringe

benefits, such as employer-provided health benefits, are one set of

the "terms, conditions, and privileges of employment" protected

from unlawful discrimination under the ADA.9 Thus, Appellant

reasons, once Bourgeois took advantage of the opportunity to

participate in the group health insurance plan, he was entitled to

be provided with health insurance in a nondiscriminatory manner.

 Bourgeois does not satisfy the QID requirement under the

plain language of the ADA, however, because he neither held nor

desired to hold a position with GFF at or subsequent to the time

the alleged discriminatory conduct was committed. Rather,

Bourgeois was a participant in the health benefit plan only by

virtue of his status as a former employee. Appellant does not

contest this conclusion, but argues that since the fruits of many

fringe benefits are realized during the post-employment period,

Congress must have intended former employees to be protected under
 10This definition directly rebuts the suggestion of the

dissent that "nothing in the plain meaning of [the] term

["employee'] limits its scope to current employees as opposed to

former employees." 

 11Although the dissent maintains § 12112(b)(6) does not

specifically "refer to employees or applicants," the plain

language of the provision contemplates discrimination encountered

solely by job applicants and current employees. 

the ADA as well.

Neither the QID definition nor the ADA's definitions of

"employee" and "discriminate" provide support for Appellant's

position. The ADA defines "employee" as "an individual employed by

an employer."10 Id. § 12111(4) (emphasis supplied). Further, §

12112(b) provides:

As used in subsection (a) of this section, the term

"discriminate" includes—

(1) limiting, segregating, or classifying a job applicant

or employee in a way that adversely affects the opportunities

or status of such applicant or employee because of the

disability of such applicant or employee;

(2) participating in a contractual or other arrangement

or relationship that has the effect of subjecting a covered

entity's qualified applicant or employee with a disability to

the discrimination prohibited by this subchapter ...;

....

(5)(A) not making reasonable accommodations to the known

physical or mental limitations of an otherwise qualified

individual with a disability who is an applicant or employee

... or

(B) denying employment opportunities to a job applicant

or employee who is an otherwise qualified individual with a

disability ...;

(6) using qualification standards, employment tests or

other selection criteria that screen out or tend to screen out

an individual with a disability or a class of individuals with

disabilities unless the standard, test or other selection

criteria, as used by the covered entity, is shown to be

job-related for the position in question and is consistent

with business necessity.11
Id. § 12112(b) (emphases supplied).

Moreover, the legislative history of the ADA specifically

states that the purpose of including the phrase "essential

functions" within the QID definition is to "ensure that employers

can continue to require that all applicants and employees,

including those with disabilities, are able to perform the

essential, i.e., the non-marginal functions of the job in quesiton

[sic]." H.R.Rep. No. 485(II), 101st Cong., 2d Sess. 55 (1990),

reprinted in 1990 U.S.C.C.A.N. 303, 337 (emphasis supplied). Thus,

a review of both the ADA and its legislative history suggests that

Congress intended to limit the protection of Title I to either

employees performing, or job applicants who apply and can perform,

the essential functions of available jobs which their employers

maintain.

Appellant argues against such a conclusion on the basis that

other legislative history of the ADA, as well as Equal Employment

Opportunity Commission (EEOC) interpretive guidance, suggest that

courts should construe the ADA by analogy to Title VII of the Civil

Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq. (1994).

As does the general rule of Title I of the ADA, the general rule of

Title VII prohibits discrimination with respect to the "terms,

conditions, or privileges of employment." 42 U.S.C. § 2000e-2(a).

Further, the Supreme Court found that health insurance coverage

made pursuant to an employment relationship is a term, condition,

or privilege of employment as defined under the Title VII general

rule. Newport News Shipbuilding and Dry Dock Co. v. EEOC, 462 U.S.

669, 682, 103 S.Ct. 2622, 2630, 77 L.Ed.2d 89 (1983).
With respect to employment-related terms, legislative history

of the ADA states that the provisions in Title I use or incorporate

by reference several of the definitions in Title VII, including the

term "employee." H.R.Rep. No. 485(II), 101st Cong., 2d Sess. 54,

reprinted in 1990 U.S.C.C.A.N. 303, 336. The EEOC has observed

that the definitions in Title I "are identical, or almost

identical" to those found in Title VII and should be given the same

meaning. 56 Fed.Reg. 35726, 35740 (July 26, 1991) (EEOC

Interpretive Guidance on 29 C.F.R. § 1630.2(a)-(f)). The EEOC has

further stated that but for a Title VII exception for public

officials not found in the ADA, "the term "employee' has the same

meaning [under the ADA] that it is given under Title VII." Id.

Against this background, Appellant points to the Title VII

retaliation statute, contending that although the statute on its

face only protects "employees" and "applicants for employment" from

illegal retaliation, 42 U.S.C. § 2000e-3, courts have broadened the

class of protected persons under the statute to include former

employees. Indeed, in construing the retaliation statute, this

Court reasoned:

While it is true that the language of a statute should be

interpreted according to its ordinary, contemporary and common

meaning ... this plain-meaning rule should not be applied to

produce a result which is actually inconsistent with the

policies underlying the statute. In the instant case, a

strict and narrow interpretation of the word "employee" to

exclude former employees would undercut the obvious remedial

purposes of Title VII.

Bailey v. USX Corp., 850 F.2d 1506, 1509 (11th Cir.1988) (citation

omitted).

In further support of his argument, Appellant relies on EEOC

v. Cosmair, Inc., L'Oreal Hair Care Div., 821 F.2d 1085 (5th
Cir.1987), an anti-retaliation case involving the receipt of

post-employment fringe benefits. In Cosmair, the Fifth Circuit

expanded the meaning of the term "employee" to include former

employees so long as the disability-based discrimination is related

to or arises out of the employment relationship. 821 F.2d at 1088.

The statute at issue in Cosmair was the Age Discrimination in

Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq. (1994);

Bailey was a Title VII case. Since this Court in Bailey cited

Cosmair, see Bailey, 850 F.2d at 1509, however, Appellant contends

that former employees suing in this Circuit for retaliation

affecting post-employment fringe benefits have a cause of action

under Title VII, and by analogy, Title I of the ADA. Thus,

Appellant reasons, because Bourgeois' participation in the health

benefit plan arose out of his employment, and the refusal to pay

benefits arguably constituted a continuing violation into the

effective period of the ADA, he is entitled to recover damages for

discrimination suffered by Bourgeois after the effective date of

the ADA.

Finally, Appellant cites EEOC v. South Dakota Wheat Growers

Ass'n, 683 F.Supp. 1302 (D.S.D.1988), in which the issue considered

was whether Title VII governed a health insurance policy "provided

after termination of employment, as a consequence of such

employment." 683 F.Supp. at 1304. In deciding that question in

the affirmative, the district court found that "discrimination

arising out of the employment relationship is unlawful regardless

of "whether or not the person discriminated against is an employee

at the time of [the] discriminatory conduct.' " Id. (quoting
 12Citing no authority, the dissent contends "[i]t would be

counter-intuitive, and quite surprising, to suppose (as the

majority nevertheless does) that Congress intended to protected

Pantchenko v. C.B. Dolge Co., Inc., 581 F.2d 1052, 1055 (2d

Cir.1978)). The court concluded that it was unlawful for an

employer to discriminate against a former employee in the provision

of post-employment health insurance coverage. Id. at 1304-05.

 Based upon the foregoing, Appellant argues this Court should

look to Title VII in seeking to understand ADA employment terms and

conclude that former employees are included within the scope of ADA

protection. We disagree. The cardinal rule of statutory

construction is that the language of a statute should be

interpreted in accordance with its ordinary, contemporary, and

common meaning. Bailey, 850 F.2d at 1509. Although we may resort

to the EEOC's interpretive guidelines for assistance in our

analysis, they are not controlling upon this Court. See Meritor

Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 2404, 91

L.Ed.2d 49 (1986). Absent clearly expressed legislative intent to

the contrary, the plain language of the statute should be

conclusive. Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc.,

447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). In

adhering to the cardinal rule, we find the plain language of the

ADA clearly demonstrates the intent of Congress to limit the scope

of the Act to only job applicants and current employees capable of

performing essential functions of available jobs. We find no

clearly expressed legislative intent suggesting that former

employees such as Bourgeois should be covered under the Act as

well.12
[sic] current employees' fringe benefits, but intended to then

abruptly terminate that protection upon retirement or

termination, at precisely the time that those benefits are

designed to materialize." Since we find no clearly expressed

legislative intent of Congress to suggest that former employees

should be included within the scope of ADA protection, we

respectfully disagree. 

 13Thus, contrary to the dissent's broad assertion that

"[w]hen Congress enacted the ADA in 1990, it was clearly

established [in] Title VII case law that the term "employee'

includes former employees," the overwhelming majority of Title

VII cases which have so found have been in the retaliatory

context. The only exceptions cited by Appellant are Wheat

Growers, 683 F.Supp. at 1302, a Title VII case not binding upon

this Court, and Northern v. City of Chicago, 841 F.Supp. 234

(N.D.Ill.1993). In Northen, former Chicago police officers

receiving disability pensions sued the city over its decision to

require the retirees to pay for health insurance. 841 F.Supp. at

235. In denying the city's motion to dismiss, the district court

held that "[a]t the initial pleading stage it is too early to

conclude that retirees are not covered employees under the ADA." 

Id. at 236. We are not bound by Northen, and the decision is not

persuasive in that the court dismissed the case without ever

addressing whether the retirees were in fact QIDs under the ADA. 

Appellant cites no binding authority demonstrating that the

ADA protects former employees. And, with two exceptions, the only

cases cited by Appellant discussing former employees' rights to sue

their former employers involve claims which arose under explicit

anti-retaliation provisions contained in Title VII and the ADEA.13

These retaliation cases are easily distinguishable.

This Court in Bailey cautioned that courts should avoid a

literal interpretation of a statute when such an approach would

frustrate the statute's central purpose. Bailey, 850 F.2d at 1509.

There is no such risk in this case. As this Court in Bailey

recognized, the expansion of the term "employee" to confer standing

to sue upon former employees claiming retaliation is necessary to

provide meaning to anti-retaliation statutory provisions and
 14Again with no support, the dissent counters:

The anti-retaliation provision would have ample scope

without claims by former employees. For example,

current employees often sue for retaliation when

subjected to discrimination because of having filed an

EEOC complaint. It is no more necessary with respect

to Title VII retaliation than it is here to include

former employees in order to "provide meaning' to the

statute.

While we recognize that retaliation claims may be filed

by current employees, we disagree with the dissent's

conclusion that "[t]he anti-retaliation provision would have

ample scope without claims by former employees." To the

contrary, we note that many retaliation claims are filed by

former employees alleging, for example, post-employment

blacklisting. See, e.g., Bailey, 850 F.2d at 1507 (alleging

that former employer gave unfavorable reference to

prospective employer in retaliation for former employee's

having filed sex discrimination suit); Pantchenko, 581 F.2d

at 1054 (alleging that former employer refused to furnish

letters of recommendation in retaliation for former

employee's having filed discrimination charges with EEOC); 

Rutherford v. American Bank of Commerce, 565 F.2d 1162,

1163-64 (10th Cir.1977) (alleging that in retaliation for

filing sex discrimination charge against former employer, it

advised prospective employer of charge). 

effectuate congressional intent.14 Id. There are, however, no

allegations of retaliation in this case, and excluding former

employees from protection under the Act is not inconsistent with

the policies underlying the statute. To the contrary, interpreting

the ADA to allow any disabled former employee to sue a former

employer essentially renders the QID requirement under the Act,

that an individual with a disability hold or desire a position the

essential functions of which he or she can perform, meaningless.

In the alternative, Appellant attempts to redefine the QID

requirement by reference to § 504 of the Rehabilitation Act of

1973, 29 U.S.C. § 794 (1994). Appellant correctly notes that

decisions interpreting the Rehabilitation Act, the ADA's statutory
predecessor, are relevant precedent in interpreting the provisions

of the ADA. H.R.Rep. No. 485(II), 101st Cong., 2d Sess. 23 (1990),

reprinted in 1990 U.S.C.C.A.N. 303, 304. Under § 504, no

"otherwise qualified handicapped individual" may be discriminated

against under any federally funded activity or program. 29 U.S.C.

§ 794. As the phrase "otherwise qualified handicapped individual"

is not defined in the Rehabilitation Act, the Supreme Court

attempted to do so in Southeastern Community College v. Davis, 442

U.S. 397, 406, 99 S.Ct. 2361, 2367, 60 L.Ed.2d 980 (1979). In

Davis, the Supreme Court considered a claim of a licensed practical

nurse who was denied admission to a college's nursing program

because of a hearing disability. 442 U.S. at 402, 99 S.Ct. at

2365. In its analysis, the Supreme Court determined that "[a]n

otherwise qualified person [under § 504] is one who is able to meet

all of a program's requirements in spite of his handicap." Id. at

406, 99 S.Ct. at 2367. Finding plaintiff unable to do so, the

Supreme Court denied relief. Id. at 414, 99 S.Ct. at 2371.

In an effort to shoehorn Bourgeois into the Supreme Court's

definition of "otherwise qualified person" in Davis, Appellant and

the EEOC attempt to analogize the nursing "program's requirements"

in Davis with the "requirements" Bourgeois needed to fulfill to

participate in the health benefits "program" following his

termination. By analogy to § 504, they contend that for Bourgeois

to be considered "qualified" under Title I of the ADA, he need not

have been a current employee or job applicant "qualified" to

perform essential functions of an available job; instead, citing

Davis, they argue he need only have been "qualified" to meet the
 15Consistent with this argument, the dissent maintains that

a former employee seeking fringe benefits may satisfy the QID

definition merely by performing such essential functions as

"mak[ing] the appropriate election, pay[ing] the premiums, etc." 

This position completely ignores the legislative history of the

ADA discussed herein, which states that the purpose of including

the phrase "essential functions" within the QID definition is to

"ensure that employers can continue to require that all

applicants and employees, including those with disabilities, are

able to perform the essential, i.e., the non-marginal functions

of the job in quesiton [sic]." H.R.Rep. No. 485(II), 101st

Cong., 2d Sess. 55 (1990), reprinted in 1990 U.S.C.C.A.N. 303,

337 (emphases supplied). 

"requirements" of the health benefits plan.15

While comparing the qualifications necessary for admission to

the nursing program in Davis to those required for Bourgeois to

receive health benefits is like comparing applies to oranges,

Appellant draws support for his argument from Modderno v. King, 871

F.Supp. 40 (D.D.C.1994), aff'd, 82 F.3d 1059 (D.C.Cir.1996). In

Modderno, plaintiff brought suit alleging discrimination on the

basis of her disability in violation of § 504. 871 F.Supp. at 41.

The district court determined that "[t]o establish a prima facie

case under § 504, a person must be handicapped under the Act,

otherwise qualified to receive or participate in the federally

supported benefit or program, and excluded from the benefit solely

by reason of her or his handicap." Id. at 42 (citing Pesterfield

v. Tennessee Valley Auth., 941 F.2d 437, 441 (6th Cir.1991))

(emphasis supplied). Although the district court ultimately

granted defendant's motion to dismiss upon finding that plaintiff

was not denied benefits solely by reason of her handicap, id. at

42-43, Appellant argues this Court should nevertheless find

Modderno instructive in giving meaning to the phrase "otherwise

qualified handicapped individual" under the Rehabilitation Act.
We decline this invitation. The Modderno decision is not

binding in this Circuit, and we disagree with the court's holding.

What Appellant, the EEOC and the Modderno court have done is

manipulate the Supreme Court's decision in Davis interpreting the

phrase "otherwise qualified handicapped individual" under § 504 to

essentially create a new job category: a "post-employment benefits

recipient." The Eighth Circuit appropriately rejected such an

argument in Beauford v. Father Flanagan's Boys' Home, 831 F.2d 768

(8th Cir.1987), cert. denied, 485 U.S. 938, 108 S.Ct. 1116, 99

L.Ed.2d 277 (1988). In Beauford, plaintiff was unable to perform

the essential functions of any available job the employer

maintained but claimed she was still protected under § 504 because

she was handicapped and eligible for fringe benefits. 831 F.2d at

771-72. In its analysis, the Eighth Circuit considered both the

Supreme Court's decision in Davis, as well as the federal

regulations which define a "qualified handicapped person" under the

Rehabilitation Act as the following:

(1) With respect to employment, a handicapped person who,

with reasonable accommodation, can perform the essential

functions of the job in question;

....

(4) With respect to other services, a handicapped person

who meets the essential eligibility requirements for the

receipt of such services.

45 C.F.R. § 84.3(k).

The Eighth Circuit ruled out subheading (4), upon which

plaintiff relied, determining the provision does not apply to

discrimination with respect to employee benefits, but rather to

discrimination by health, welfare and social services providers
 16Arguing that Bourgeois was employed at a competing fast

food restaurant until shortly before his death, Appellant urges

this Court to remand the case for development of the record as to

Bourgeois' ability to perform the "essential functions" of his

job. We decline to do so. While Bourgeois may indeed have been

able to perform the essential functions of a job, including the

job he held while previously employed by GFS, he was neither a

current employee of nor a job applicant with GFF at or subsequent

to the time the alleged discriminatory conduct was committed. 

Accordingly, we find Bourgeois was not covered under Title I of

the ADA. 

 17This opinion should not be read to infer that a former

employee has no recourse in the event an employer makes a

substantial change in a health insurance benefit plan following

discharge. There is simply no cause of action under the ADA. 

toward applicants attempting to obtain such services. Beauford,

831 F.2d at 771-72. Finding subheading (1) to be the proper

category governing plaintiff's claim, the court concluded that

"both the language of the statute and its interpretation by the

Supreme Court [in Davis ] indicate that section 504 was designed to

prohibit discrimination within the ambit of an employment

relationship in which the employee is potentially able to do the

job in question." Id. at 771 (emphasis supplied).

We are persuaded by the reasoning of the Eighth Circuit in

Beauford, finding it consistent with congressional intent

underlying Title I of the ADA. Since Bourgeois was neither a job

applicant nor a current employee capable of performing essential

functions of an available job with GFF at or subsequent to the time

the alleged discriminatory conduct was committed,16 he was not a QID

within the meaning of the ADA. Thus, Appellant is not entitled to

relief.17

IV. CONCLUSION

We conclude that Bourgeois, a former employee, was not a
"qualified individual with a disability" as defined under the ADA

and therefore not entitled to the Act's protection. The district

court appropriately denied Appellant's motion for reconsideration

of the order of dismissal.

AFFIRMED.

ANDERSON, Circuit Judge, dissenting:

The majority today concludes that Timothy Bourgeois was not a

"qualified individual with a disability" under the Americans with

Disabilities Act ("ADA" or "the Act"), solely because Bourgeois was

a former employee. I respectfully disagree with the majority's

conclusion that the ADA provides protection only for currently

active employees.

At the outset, it is important to clarify the conduct of the

defendant-appellee, Garner Fast Foods, Inc. ("GFF"). The majority

correctly notes that GFF discharged Bourgeois in April of 1991 "to

avoid paying future health insurance claims" for him. At 2972.

The majority fails to mention that GFF took this action, which

would clearly be unlawful now that the ADA is in effect, during the

two year phase-in that Congress included in the Act, which ran from

July 26, 1990, until the July 26, 1992, effective date. The

purpose of this phase-in period was to give employers time to take

those actions necessary to come into compliance with the

requirements of the Act. Instead of taking action to come into

compliance with the ADA, GFF fired Bourgeois and then, because of

Bourgeois' continued participation in the company health insurance

benefit plan, GFF amended that plan to impose an AIDS cap, all

shortly before the July 26, 1992, effective date of ADA.
 1

The majority assumes that the violation alleged here is a

continuing violation. At 2973. As noted, this result is

dictated by binding precedent. 

Bourgeois seeks to recover reimbursement only for medical

expenses incurred from and after the July 26, 1992, effective date

of the Act; he does not seek to retroactively recover expenses

incurred before that date. In a case in an almost identical

posture, this Court held that the continuation of an allegedly

discriminatory health insurance policy constitutes a continuing

violation, an "ongoing policy actively maintained by" the employer

such that "each week in which divorced men are denied insurance

coverage ... constitutes a wrong." Beavers v. American Cast Iron

Pipe Co., 975 F.2d 792, 798 (11th Cir.1992); see also Bazemore v.

Friday, 478 U.S. 385, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986).1

The majority acknowledges that AIDS is a disability under the

ADA. They also recognize that fringe benefits like

employer-provided health benefits are among the "terms, conditions,

and privileges of employment" protected by the Act. At 2974 & nn.

6-7. Thus, employer-provided fringe benefits are subject to the

anti-discrimination provisions of the ADA. This far, I agree with

the majority. However, the majority then concludes that Bourgeois

lost all protection under the ADA when he was fired, thereby

assuming the status of a former employee. The crux of the

majority's position is that the statutory term "employee" includes

only currently active employees, and that the statutory term

"qualified individual with a disability" does not include a retired

employee or other former employee because such persons can no

longer perform the essential functions of the positions which they
 2

The majority emphasizes the language of § 12112(b) which

sets out a nonexclusive list of actions (or types of action)

which constitute discrimination. At 2975. The majority takes

comfort in the fact that many of the actions described refer to

employees or applicants. Not only is this list expressly

nonexclusive, but the focus of the subsection is on the

description of actions that constitute discrimination, not on the

persons protected by the Act. In any event, not all of the

descriptions refer to employees or applicants. See § 12112(b)(4)

& (6). 

formerly held. For the reasons that follow, I dissent.

Unlike the majority, I cannot conclude that the plain meaning

of the language of the statute limits the Act's protection to

currently active employees or job applicants, and excludes retirees

and other former employees. Quite the contrary, the governing

language of the general statutory provision uses the broader term

"individual":

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).2

 Moreover, even if the governing general

provision had used the term "employee," rather than the term

"individual," nothing in the plain meaning of that term limits its

scope to current employees as opposed to former employees; this is

borne out by the case law discussed below.

Finding no conclusive answer in the plain meaning of the

statutory language, I turn for guidance to the structure and

evident purpose of the statute, the legislative history, the case

law, and the guidance provided by the administrative agency charged

with enforcing the statute. The purpose of the statute is

expressly stated in the broadest possible terms:
 3

Section 12112(a) expressly extends protection to "other

terms, conditions, and privileges of employment." The statute

also makes several other references indicating that fringe

benefits are protected. See § 12112(b)(2) & (4). The majority

concedes that it is clear that fringe benefits are protected by

the ADA, citing the statute, its legislative history, and the

interpretive regulations. At 2974 & n. 7. 

It is the purpose of this chapter ... to provide a clear and

comprehensive national mandate for the elimination of

discrimination against individuals with disabilities.

42 U.S.C. § 12101(b)(1). In addition to its broad purpose, the

statute is clearly a remedial one. The law is well established

that remedial statutes are to be construed liberally so as to

promote the remedial purposes of the statute. Pullman-Standard v.

Swint, 456 U.S. 273, 275, 102 S.Ct. 1781, 1783, 72 L.Ed.2d 66

(1982) (Title VII); Corning Glass Works v. Brennan, 417 U.S. 188,

208, 94 S.Ct. 2223, 2234-35, 41 L.Ed.2d 1 (1974) (Equal Pay Act);

Terrell v. U.S. Pipe & Foundry Co., 644 F.2d 1112, 1123 (5th Cir.

Unit B 1981) (Civil Rights Act of 1964), rev'd on other grounds sub

nom. Int'l Assoc. of Machinists and Aerospace Workers, AFL-CIO v.

Terrell, 456 U.S. 955, 102 S.Ct. 2028, 72 L.Ed.2d 479 (1982).

Keeping in mind this mandate to liberally construe remedial

statutes, I turn to one aspect of the structure of the Act. The

majority acknowledges that the protection of the Act extends to

fringe benefits provided by employers, such as pension and

profit-sharing plans and health benefit plans.3

 It is a matter of

common knowledge that fringe benefit plans routinely and commonly

cover retirees and other former employees. Indeed, pension and

profit-sharing plans are designed primarily for the post-employment

years. It is entirely reasonable to infer that Congress intended

the Act's protection to extend to those individuals routinely and
commonly included within such fringe benefit plans. It would be

counter-intuitive, and quite surprising, to suppose (as the

majority nevertheless does) that Congress intended to protect

current employees' fringe benefits, but intended to then abruptly

terminate that protection upon retirement or termination, at

precisely the time that those benefits are designed to materialize.

The structure of the statute, in clearly extending protection to

fringe benefit plans, indicates that Congress intended protection

for those routinely and commonly covered by such employer-provided

plans.

The structure of the Act, its legislative history and the

interpretive regulations also establish that Congress intended for

the ADA to be construed in a manner similar to Title VII. The text

of the ADA expressly incorporates the "powers, remedies and

procedures set forth in Title VII". 42 U.S.C. § 12117(a). Also,

much of the language in the ADA mirrors language found in Title

VII. For example, both define the term "employee" to mean "an

individual employed by an employer." The House of Representatives

Education and Labor Committee wrote:

Several of the definitions set out in title VII of the Civil

Rights Act of 1964 are adopted or are incorporated by

reference in this legislation—i.e., ... employer, person ...

the term "employee" means an individual employed by an

employer.

H.R.Rep. No. 485(II), 101st Cong., 2d Sess. 54, reprinted in 1990

U.S.C.C.A.N. 336.

The provisions in title I of this bill use or incorporate by

reference many of the definitions in title VII of the Civil

Rights Act of 1964 (employee, employer ...).

Id. at 149, reprinted in 1990 U.S.C.C.A.N. 432
 4

EEOC guidelines, "while not controlling upon the courts by

reason of their authority, do constitute a body of experience and

informed judgment to which courts and litigants may properly

resort for guidance." Meritor Savings Bank, FSB v. Vinson, 477

U.S. 57, 65, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986). 

[T]itle I of this legislation incorporates by reference the

definition of the term "employer" and "employee" used in title

VII of the Civil Rights Act of 1964....

Id. at 76, reprinted in 1990 U.S.C.C.A.N. 359; see also McDermott

International, Inc. v. Wilander, 498 U.S. 337, 342, 111 S.Ct. 807,

811, 112 L.Ed.2d 866 (1991) ("In the absence of a contrary

indication, we assume that when a statute uses [a term of art],

Congress intended it to have its established meaning.").

The EEOC interpretive guidelines also support this view. They

state that, "[i]n general, the term "employee' has the same meaning

that it is given under Title VII." 29 CFR § 1630.2(a)-(f).4

 Those

guidelines note that there are several definitions in Title I of

the ADA that are identical, or almost identical, to ones found in

Title VII, and that, "[t]hese terms are to be given the same

meaning under the ADA that they are given under Title VII." Id.

Based on the similarities between the texts and remedial

purposes of the ADA and Title VII, as well as the evidence of

congressional intent, courts interpreting the ADA look to Title

VII. See e.g. Carparts Distri. Ctr. v. Automotive Wholesaler's

Assoc., 37 F.3d 12, 16 (1st Cir.1994) ("In making our determination

we look for guidance to the Civil Rights Act of 1964 ... and cases

interpreting that statute."); West v. Russell Corp., 868 F.Supp.

313, 317 (M.D.Ala.1994) (holding that the court will analyze claims

of discrimination under the ADA as it would claims under Title

VII). This Court should follow this common-sense approach and do
so as well.

This Court has construed the term "employee" in the Title VII

context to effectuate Congress' purposes in enacting that

legislation. In Bailey v. USX Corp., 850 F.2d 1506 (11th

Cir.1988), we held that a former employee had the right to sue his

former employer for retaliation under Title VII, despite the

language of the statute which referred only to "employees" and

"applicants for employment." Id. at 1509. We noted that "every

other court" had thus held, based upon "a common sense reading in

keeping with the purpose of the statute." Id.; see also Charlton

v. Paramus Bd. of Educ., 25 F.3d 194 (3rd Cir.1994), cert. denied,

--- U.S. ----, 115 S.Ct. 590, 130 L.Ed.2d 503 (1994); E.E.O.C. v.

Ohio Edison Co., 7 F.3d 541 (6th Cir.1993); Passer v. American

Chemical Society, 935 F.2d 322 (D.C.Cir.1991); E.E.O.C. v. J.M.

Huber Corp., 927 F.2d 1322 (5th Cir.1991) (assuming that former

employee can sue under Title VII retaliation provision when

employer allegedly retaliates by refusing to pay post-employment

profit-sharing benefits); Patchenko v. C.B. Dolge Company, Inc.,

581 F.2d 1052 (2nd Cir.1978); Rutherford v. American Bank of

Commerce, 565 F.2d 1162 (10th Cir.1977); but see Robinson v. Shell

Oil Co., 70 F.3d 325 (4th Cir.1995), cert. granted, --- U.S. ----,

116 S.Ct. 1541, 134 L.Ed.2d 645 (1996). We also noted in Bailey

that the same rationale had been employed in the age discrimination

context to extend protection to former employees. Bailey, 850 F.2d

at 1509 (citing with approval E.E.O.C. v. Cosmair, Inc., L'Oreal

Hair Care Div., 821 F.2d 1085, 1088 (5th Cir.1987) ("The term

"employee' ... is interpreted broadly: it includes a former
employee as long as the alleged discrimination is related to or

arises out of the employment relationship.")). Following this

overwhelming case law, we held that "a strict and narrow

interpretation of the word "employee' to exclude former employees

would undercut the obvious remedial purposes of Title VII."

Bailey, 850 F.2d at 1509.

It is significant that Congress enacted the ADA in 1990.

Congress is deemed to legislate against the background of the

federal common law. Astoria Fed. S & L Ass'n v. Solemino, 501 U.S.

104, 108, 111 S.Ct. 2166, 2169-70, 115 L.Ed.2d 96 (1991). When

Congress enacted the ADA in 1990, it was clearly established Title

VII case law that the term "employee" includes former employees.

Congress is deemed to be familiar with such case law. In the ADA,

Congress used the same definition of "employee" that it used in

Title VII. The text of the ADA expressly refers to Title VII, and

the legislative history clearly indicates a Congressional intention

to incorporate the established Title VII meaning for the term

"employee."

The majority purports to "easily distinguish" Bailey and the

other retaliation cases. However, the only rationale offered for

the distinction, beyond the majority's ipse dixit that retaliation

cases are different, is that a broad interpretation of the term

"employee" was "necessary to provide meaning to anti-retaliation

provisions and effectuate congressional intent." At 2977. It is

not at all apparent what difference there is between Title VII

anti-retaliation claims and claims by former employees for

discrimination with respect to fringe benefits. The
 5

Other non-retaliation Title VII cases have also extended

protection to former employees. See E.E.O.C. v. South Dakota

Wheat Growers Ass'n, 683 F.Supp. 1302 (D.S.D.1988) (rejecting the

argument that Title VII does not cover post-employment health

benefits); see also Long v. State of Florida, 805 F.2d 1542

(11th Cir.1986), rev'd on other grounds, 487 U.S. 223, 108 S.Ct.

2354, 101 L.Ed.2d 206 (1988) (assuming that former employees have

standing under Title VII to challenge discriminatory practices

with regard to payments from employee pension plan). 

anti-retaliation provision would have ample scope without claims by

former employees. For example, current employees often sue for

retaliation when subjected to discrimination because of having

filed an EEOC complaint. It is no more necessary with respect to

Title VII retaliation than it is here to include former employees

in order to "provide meaning" to the statute. Indeed, the denial

of claims of former employees with respect to fringe benefits would

seem to intrude more severely on the obvious congressional intent

to protect employer-provided fringe benefits. As a matter of

common experience, fringe benefits are designed and provided

primarily for the post-employment years. I respectfully submit

that the majority's attempted distinction of Bailey and the

retaliation cases is flawed. Bailey is binding precedent, and its

rationale should govern this case.5

The text of the statute also expressly refers to the

Rehabilitation Act of 1973. 42 U.S.C. § 12201(a) ("[N]othing in

this chapter shall be construed to apply a lesser standard than the

standards applied under title V of the Rehabilitation Act of

1973."). The majority acknowledges that Congress intended the

courts to interpret the ADA with reference to the Rehabilitation

Act. M/S at 15 (citing H.R.REP. No. 485(II), 101st Cong., 2d Sess.

23 (1990)). Section 504 of the Rehabilitation Act prohibits
 6

The Plan was changed to include a $75,000 lifetime maximum

for mental health benefits. 

discrimination against an "otherwise qualified handicapped

individual" in any federally funded program. 29 U.S.C. § 794.

Analysis of the cases construing this phrase provides insight into

logic behind Congress' use of the nearly identical "qualified

individual with a disability."

The Supreme Court has held that "[a]n otherwise qualified

person [under § 504] is one who is able to meet all of a program's

requirements in spite of his handicap." Southeastern Community

College v. Davis, 442 U.S. 397, 406, 99 S.Ct. 2361, 2367, 60

L.Ed.2d 980 (1979). The Court captured the essence of this concept

when it wrote:

Section 504 by its terms does not compel educational

institutions to disregard the disabilities of handicapped

individuals or to make substantial modifications in their

programs to allow disabled persons to participate. Instead,

it requires only that an "otherwise qualified handicapped

individual" not be excluded from participation in a federally

funded program "solely by reason of his handicap," indicating

only that mere possession of a handicap is not a permissible

ground for assuming an inability to function in a particular

context.

Id. at 405, 99 S.Ct. at 2366 (emphasis added).

The court in Modderno v. King, 871 F.Supp. 40 (D.D.C.1994),

aff'd, 82 F.3d 1059 (D.C.Cir.1996), addressed a Rehabilitation Act

claim of discrimination in the provision of health insurance fringe

benefits. The plaintiff, Modderno, was the former spouse of a

Foreign Service officer, and qualified for Foreign Service Benefit

Plan health insurance on that basis. During the period that she

was covered by the Plan, the Plan imposed a lower limit on mental

health benefits,6 as compared to the limit on benefits for physical
 7

The Eighth Circuit, in Beauford v. Father Flanagan's Boys'

Home, 831 F.2d 768 (8th Cir.1987), employed a rationale very

similar to that of the majority in this case. The opinion makes

no reference to the overwhelming Title VII case law discussed

above. I respectfully submit that Beauford, like the majority

opinion in this case, ignored not only that overwhelming case

law, which constitutes the background against which Congress

legislated, but also ignored the obvious common sense

construction of the statute in light of its purpose and

legislative history. See Price Waterhouse v. Hopkins, 490 U.S.

228, 241, 109 S.Ct. 1775, 1786, 104 L.Ed.2d 268 (1989) ("We need

not leave our common sense at the doorstep when we interpret a

statute."). 

ailments. Modderno, 82 F.3d at 1060. Although the court did not

find that this limit amounted to discrimination in violation of §

504, it nonetheless implicitly recognized that a plan participant

could assert a claim of discrimination in the provision of fringe

benefits. The Modderno district court wrote that,

To establish a prima facie case under § 504, a person must be

handicapped under the Act, otherwise qualified to receive or

participate in the federally supported benefit or program, and

be excluded from the benefit solely by reason of her or his

handicap.

Modderno, 871 F.Supp. at 42 (citing Pesterfield v. Tennessee Valley

Authority, 941 F.2d 437, 441 (6th Cir.1991) (emphasis added)).7

Finally, my position that retirees and other former employees

are protected under the ADA is supported by a common sense reading

of the statute. As noted above, § 12111(8) provides that a

"qualified individual with a disability" means "an individual with

a disability who ... can perform the essential functions of the

employment position...." A retired or former employee, like

Bourgeois, has already performed all of the functions expected of

him with respect to the job he occupied before retirement. Under

the company's plan, the only additional "functions" expected of

Bourgeois, and other retired or former employees, are to make the
appropriate election, pay the premiums, etc. Fringe benefits, such

as the one at issue here, are all part of the overall compensation

package provided for employees as consideration for their service

during their active years with the company. Post-employment

benefits are like deferred compensation, and are expected to be

enjoyed during the post-employment years. The common sense of the

concept, "qualified individual with a disability," is that there

should be no discrimination because of stereotypes or stigmas.

Differences in treatment are legitimate when based on the ability

of a person to perform the functions expected in the position. In

other words, the protections of the Act accrue to disabled persons

who can perform the functions expected to be performed by persons

without disability in the same position. As the Supreme Court put

it in Southeastern Community College v. Davis: "Mere possession of

a handicap is not a permissible ground for assuming an inability to

function in a particular context." 442 U.S. at 405, 99 S.Ct. at

2366 (emphasis added). Applying that common sense in the instant

context, it is obvious that retirees and other former employees,

who because of their prior employment are entitled to participate

in post-employment fringe benefit plans, are not expected to

perform the functions of the jobs they previously held before

retirement. Rather, they are expected to meet whatever criteria

are mandated by the fringe benefit plan for the accrual and

continuation of coverage, including, for example, any required

minimum years of employment, honorable discharge, and the payment

of premiums.

In summary, I respectfully submit that the majority sees
 8

I have found very few ADA cases squarely addressing the

issue before us. A district court in the Northern District of

Illinois rejected as unpersuasive and without case law support an

argument that the employment provisions of the ADA do not apply

to former employees. Northen v. City of Chicago, 841 F.Supp.

234, 236 (N.D.Ill.1993). However, Parker v. Metropolitan Life,

Ins. Co., 875 F.Supp. 1321 (W.D.Tenn.1995), appeal docketed, No.

95-5269 (6th Cir.1995), followed Beauford v. Father Flanagan's

Boys' Home, 831 F.2d 768 (8th Cir.1987), and held that a former

employee was not a qualified individual with a disability, and

thus could not make an ADA claim under the employer's disability

plan. The Parker court based this holding on its conclusion that

the employee had become totally disabled and was no longer able

to perform the essential functions of the job she had previously

held. In my judgment, Parker, like Beauford, is flawed. It

failed to address the overwhelming Title VII case law which

provided the background against which Congress enacted the ADA,

and failed to address the common sense construction of the Act in

light of its purpose and legislative history. 

"plain meaning" when there is none. The majority ignores the

common sense reading of the statute and the evident congressional

purpose as revealed in the structure of the statute, its

legislative history, and the overwhelming case law which provided

the background against which Congress legislated.8

 Because I

cannot agree with the majority's conclusions, I respectfully

dissent.