UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Theresa Fortier

v. Civil No. 16-cv-322-LM Opinion No.

Hartford Life and Accident Insurance Company et al.

O R D E R

Plaintiff Theresa Fortier, a former doctor at the

Dartmouth-Hitchcock Clinic (“DH Clinic”), alleges that

defendants Hartford Life and Accident Insurance Company

(“Hartford”) and the Dartmouth-Hitchcock Clinic Long Term

Disability Plan (“LTD Plan”) unlawfully stopped paying long-term

disability benefits to which she is entitled. Her first amended

complaint consists of four counts: two brought pursuant to the

Employee Retirement Income Security Act (“ERISA”) to recover

benefits under the LTD Plan (Count I) and a life insurance plan

(Count II); one alleging that a mental illness limitation in the

LTD Plan violates the Americans with Disabilities Act (“ADA”)

and “New Hampshire anti-discrimination laws” (Count III); and

one seeking an award of attorney’s fees and costs (Count IV).

See doc. no. 13. Defendants move, pursuant to Federal Rule of

Civil procedure 12(b)(6), to dismiss Counts I and III. Fortier

objects. I. Standard of Review

Under Federal Rule of Civil Procedure 12(b)(6), the court

must accept the factual allegations in the complaint as true,

construe reasonable inferences in the plaintiff’s favor, and

“determine whether the factual allegations in the plaintiff's

complaint set forth a plausible claim upon which relief may be

granted.” Foley v. Wells Fargo Bank, N.A.,

(1st

Cir. 2014) (citation omitted). A claim is facially plausible

“when the plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Ashcroft v. Iqbal,

(2009).

II. Background

The facts recited in this section are drawn from: (1)

Fortier’s first amended complaint; (2) exhibits attached to that

complaint; and (3) certain documents attached to defendants’

motion to dismiss and reply to Fortier’s objection.

Fortier contends that the court may not consider three of

these documents when conducting its analysis: the LTD Plan

policy, the LTD Plan certificate of insurance, and the

certificate of insurance from a different long-term disability

policy. Doc. nos. 16-2, 16-3, 22-1. A court may consider

“documents central to plaintiffs’ claims[] and documents

2 sufficiently referred to in the complaint.” Brennan v. Zafgen,

Inc.,

(1st Cir. 2017) (original bracketing

omitted) (quoting Watterson v. Page,

(1st Cir.

1993)). Here, the first amended complaint explicitly references

the insurance documents and directly quotes from the LTD Plan

certificate of insurance. See, e.g., doc. no. 13 ¶¶ 24, 69, 72.

Moreover, these documents are central to Fortier’s claims, as

she seeks to recover benefits under the LTD Plan and argues that

defendants reviewed her claim under the incorrect certificate of

insurance. Thus, these documents are properly before the court.

Cf. Prouty v. Hartford Life & Acc. Ins. Co.,

(D. Mass. 2014) (“Where Plaintiff has not produced the

document forming the basis of her lawsuit, it would be both

unfair and improper to prevent Defendants from referencing that

document in their motions to dismiss.”).

A. The LTD Plan

The LTD Plan provides long-term disability insurance

coverage for employees of the DH Clinic. This coverage is fully

insured by Hartford. The terms of the LTD Plan are contained in

an insurance policy (“LTD policy”) and a certificate of

insurance (“LTD certificate”). Doc. nos. 16-2; 16-3. The LTD

certificate is expressly incorporated into the LTD policy. Doc.

no. 16-2 at 8.

3 The LTD Plan contains a maximum duration of benefits. See

doc. no. 16-3 at 3. For those under the age of 63, the maximum

duration of benefits is “to normal retirement age or 42 months,

if greater.”

(capitalization modified). Under certain

circumstances, however, the duration of coverage is limited.

For instance, if a beneficiary is disabled due to mental

illness, then benefits are only payable under the LTD Plan

1) for as long as [the beneficiary is] confined to a hospital or other place licensed to provide medical care for the disabling condition; or 2) if not confined, or after [the beneficiary is] discharged and still disabled, for a total of 24 month(s) for all such disabilities during [the beneficiary's] lifetime.

Doc. no. 16-3 at 8 (capitalization modified).

The LTD Plan also contains procedures for appealing the

denial of a claim. For instance, page 21 of the LTD certificate

states that if a beneficiary’s claim is denied, that beneficiary

“must request review upon written application within 180 days of

receipt of claim denial” regardless of whether that claim

required a determination of disability by Hartford. Doc. no.

16-3 at 15 (numbering omitted). Page 39 of the LTD certificate

contains similar requirements for determination of disability

claims, stating that a beneficiary’s appeal request “must be in

writing and be received by the Insurance Company no later than

180 days from the date [the beneficiary] received [his/her]

claim denial.” Id. at 33. Page 39 further states that “[o]n

4 any wholly or partially denied claim,” the beneficiary “must

appeal once to the Insurance Company for full and fair review”

and must “complete this claim appeal process before [he/she]

file[s] an action in a court.” Id. Page 40 of the LTD

certificate contains nearly identical procedures for claims not

requiring a determination of disability, except that it

specifies such an appeal be filed “no later than 60 days from

the date [the beneficiary] received [his/her] claim denial”

rather than 180 days. Id. at 34.

B. Fortier’s Claim

At all times relevant to this case, Fortier was employed as

a physician at the DH Clinic. Through her employment, Fortier

was a beneficiary and participant under the LTD Plan. At some

point during her employment, Fortier contracted a virus that

ultimately caused her to suffer permanent cognitive deficits.

These deficits have prevented Fortier from performing the

essential functions of her work as a physician. And, though she

has received continuous treatment since the onset of her

illness, these deficits have prevented her from returning to her

work at the DH Clinic. As Fortier has also been unable to

pursue other employment as a result of her illness, she applied

for long-term disability benefits through the LTD Plan.

5 Hartford and the LTD Plan began paying Fortier long-term

disability benefits on November 2, 2009. Defendants terminated

these benefits on November 1, 2011, on the basis that Fortier’s

claim was subject to the 24-month limitation for mental illness

claims. Fortier timely appealed that decision, and her benefits

were reinstated on May 22, 2012.

In July 2013, Fortier’s attorney received a letter from

Hartford. In this letter, Hartford once again stated that it

had determined that Fortier’s disability was caused by mental

illness and was therefore subject to the mental illness

limitation. The letter stated that Fortier’s LTD benefits

accordingly “will cease on 09/13/2013” unless Fortier was

“hospitalized prior to that date,” in which case “her benefits

may be extended.” Doc. no. 16-4 at 1. The letter noted that

Fortier was entitled, under ERISA, to appeal the denial of

coverage, but stated that if she wished to do so, she or her

authorized representative “must write to [Hartford] within one

hundred eighty (180) days of receipt of this letter.” Id.

Fortier stopped receiving her benefits under the LTD Plan

on September 13, 2013. She filed an appeal of Hartford’s

decision to terminate her benefits on March 7, 2014. This

appeal was filed 175 days after September 13, 2013, the date on

which Fortier’s benefits were terminated, but 219 days after

July 31, 2013, the last day of the month in which Fortier

6 concedes she received the July 17, 2013 letter. On March 25,

2014, Hartford informed Fortier by letter that it would not

review the substance of her appeal because it was untimely.

Fortier’s counsel sent Hartford a letter on July 25, 2014,

stating that in his view, the appeal period ran from September

13, 2013, not July 17, 2013. Hartford disagreed and refused to

examine the substance of Fortier’s appeal. This action

followed.

III. Discussion

Defendants move to dismiss Counts I and III of Fortier’s

first amended complaint. Fortier brings Count I pursuant to

ERISA and seeks to recover long-term disability benefits under

the LTD Plan. Defendants contend that this count must be

dismissed because Fortier failed to exhaust her administrative

remedies, as she failed to file a timely appeal under the LTD

Plan. In Count III, Fortier contends that the mental illness

limitation violates Titles I and III of the ADA and “New

Hampshire anti-discrimination laws” by providing different

levels of coverage for physically and mentally disabled

beneficiaries. Defendants contend that this count must be

dismissed both due to lack of standing and because Fortier has

failed to state a claim upon which relief may be granted. The

court considers each count in turn.

7 A. Count I

The parties’ sole dispute as to Count I revolves around

exhaustion. Under ERISA, every benefit plan must, among other

things, “afford 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.”

(2). The Secretary of Labor

(“Secretary”) has promulgated regulations for the administrative

review of claims for plan benefits. See

.503—1.

Among these is a requirement that every employee benefit plan

“[p]rovide claimants at least 60 days following receipt of a

notification of an adverse benefit determination within which to

appeal the determination.”

§ (h)(2)(i). This period is

extended to “at least 180 days following receipt of a

notification of an adverse benefit determination” when the

employee benefit plan is a “group health plan.” Id. §

(h)(3)(i).1

The regulations further require that the communication of

denial of benefits “spell out the specific reasons for an

1 “The term ‘group health plan' means an employee welfare benefit plan providing medical care (as defined in section 213(d) of Title 26) to participants or beneficiaries directly or through insurance, reimbursement, or otherwise.”

(1).

8 adverse determination, delineate the particular plan provisions

on which the determination rests, furnish a description of any

additional material necessary to perfect the claim, and provide

a description of the plan's review procedures and applicable

time limits.” Stephanie C. v. Blue Cross Blue Shield of

Massachusetts HMO Blue, Inc.,

(1st Cir. 2016)

(citing

.503–1(g)(1)). Though a beneficiary may

bring suit challenging the denial of benefits under a plan

subject to ERISA, see

(a), she must first

exhaust her plan’s administrative remedies, see Tetreault v.

Reliance Standard Life Ins. Co.,

(1st Cir.

2014); see also Heimeshoff v. Hartford Life & Acc. Ins. Co.,

(2013) (noting that federal courts of appeals

have “uniformly required that participants exhaust internal

review before bringing a claim for judicial review”).

Defendants contend that Fortier failed to exhaust her

administrative remedies because she did not appeal the denial of

her long-term disability coverage within 180 days of receipt of

the July 17, 2013 letter. Defendants assert, and Fortier does

not dispute, that her claim required Hartford to make a

determination of disability. Defendants note that under such

circumstances, the LTD Plan requires a beneficiary to file her

appeal within 180 days of the day she received her claim denial.

Doc. no. 16-3 at 15, 33. Defendants point to the July 17, 2013

9 letter, which they contend: (1) informed Fortier that her

benefits would cease on September 13, 2013; (2) explained the

basis for that adverse determination; and (3) indicated that if

Fortier wished to appeal that determination, she or her

representative “must write to [Hartford] within one hundred

eighty (180) days of receipt of this letter.” See doc. no.

16-4. Defendants note that there is no dispute Fortier did not

file her appeal until March 7, 2014, well more than 180 days

after she received the July 17, 2013 letter. Thus, according to

defendants, Fortier’s appeal was untimely.

In response, Fortier marshals a litany of legal and factual

arguments. Though not always clear from her papers where one

argument stops and the next one begins, the court understands

Fortier to make the following four arguments: (1) that her

appeal was timely as a matter of law because it was filed within

180 days of the day she stopped receiving her benefits under the

LTD Plan; (2) that even if her appeal was untimely, it should be

excused because defendants failed to faithfully copy the LTD

Plan appeals requirements into the July 17, 2013 letter; (3)

that her untimely appeal should be excused due to ambiguities in

the LTD Plan language relating to appeals; and (4) that

dismissal of Count I on exhaustion grounds is inappropriate due

10 to the application of the New Hampshire “notice-prejudice” rule.2

The court considers each of these arguments in turn.

1. Timeliness of Fortier’s Appeal

First, Fortier argues that her appeal was timely as a

matter of law because it was filed within 180 days of September

13, 2013, the day she stopped receiving benefits under the LTD

Plan. To this end, Fortier alleges that the denial of benefits

in the July 17, 2013 letter was not sufficiently definite to

trigger the appeals period, because the letter suggested that

her benefits could be extended if she were hospitalized before

September 13, 2013. The court is not persuaded by this

argument.

The July 17, 2013 letter contained both a definite

explanation as to why Fortier was no longer entitled to benefits

after September 13, 2013, and a definite statement that

Fortier’s benefits would end on that date. Doc. no. 16-4 at 1

(“[T]he benefits will cease on 09/13/2013” (emphasis added)).

Fortier does not cite, and the court cannot identify, any

2 Fortier also raises two related procedural arguments that she believes preclude dismissal of Count I: (1) that defendants incorrectly argue that ERISA exhaustion is a jurisdictional prerequisite when it is in fact an affirmative defense; and (2) that defendants have not met the heightened requirements for Rule 12(b)(6) dismissal based on an affirmative defense. The court need not reach either of these arguments in light of its determinations infra.

11 authority for the proposition that these statements somehow do

not constitute an “adverse benefit determination” simply because

other provisions of the ERISA plan remained in effect until the

date the benefits were ultimately terminated. Indeed, Fortier’s

interpretation is contrary to the plain language of the July 17,

2013 letter, the LTD Plan documents, and ERISA itself, all of

which support the conclusion that the appeals period commenced

once Fortier received notification that her benefits were being

terminated. See doc. no. 16-3 at 15, 33 (noting that appeals

must be filed within 180 days of the date the beneficiary

receives a denial of coverage); doc. no. 16-4 at 3 (instructing

Fortier or her representative to appeal “within one hundred

eight (180) days of receipt of this letter” (emphasis added));

see also

.503—1(h)(2)(i), (h)(3)(i)

(contemplating appeals period commencing upon “receipt of a

notification of an adverse benefit determination” (emphasis

added)). Thus, absent any contrary authority, there is no basis

to conclude that the appeals period in this case commenced on

any date other than the date on which Fortier received the July

17, 2013 letter.

2. Recitation of Appeals Terms in July 17, 2013 Letter

Next, Fortier argues that defendants failed to comply with

ERISA because they did not copy the appeal terms from the LTD

12 Plan documents into the July 17, 2013 letter. She specifically

contends that the inclusion of the words “from receipt of this

letter” in the July 17, 2013 letter impermissibly amended the

LTD Plan. This argument, too, is unavailing.

There is no requirement under ERISA that a notification of

an adverse benefit determination quote verbatim the appeals

procedure language in the governing ERISA plan document.

Instead, the notification must “set forth, in a manner

calculated to be understood by the claimant - the time limits

applicable to [the plan's review] procedures . . . .”

.503—1(g)(1)(iv). The July 17, 2013 letter did exactly

that: it explained, in plain terms, that Fortier or her

representative must appeal within 180 days of the date she

received notification that her claim had been denied. This

language tracks closely the requirements in the LTD

certification. That the July 17, 2013 letter took the

additional step of making clear that the letter itself

constituted the operative notification does not alter this

conclusion. If anything, the inclusion of the phrase “from

receipt of this letter” only enhances the likelihood that

Fortier would understand that the July 17, 2013 letter

constituted an adverse benefit determination and that she had

180 days from receipt thereof to appeal. Fortier’s argument to

the contrary is therefore misplaced.

13 3. Ambiguities in Plan Language

Fortier next argues that her untimely appeal should be

excused due to ambiguities in the LTD Plan language as it

relates to appeals. Though it is not abundantly clear just what

Fortier believes to be ambiguous about the operative LTD Plan

language, the court construes her papers to assert two distinct

ambiguities. First, Fortier appears to rely upon the fact that

the LTD certification mandates both 180-day and 60-day appeals

periods for claims not requiring Hartford to make a

determination of disability. Compare doc. no. 16-3 at 15 with

id. at 34. Fortier does not dispute, however, that she is not

subject to these provisions because her claim required Hartford

to make a determination of disability. And even if she were,

her appeal would have been untimely regardless of whether a 60-

day or 180-day appeal period applied. This inconsistency

therefore does not excuse Fortier’s untimely appeal.

Second, Fortier appears to contend that the requirement in

the LTD certificate that a beneficiary or her representative

“appeal once” before filing an action in court is ambiguous. To

this end, Fortier suggests that she could reasonably be viewed

as already having “appealed once,” as she filed an appeal of a

previous termination of her benefits in November of 2011. Such

a reading is inconsistent with the language of the LTD

14 certificate, however, which states: “On any wholly or partially

denied claim, you or your representative must appeal once to

[Hartford] for a full and fair review.” Doc. no. 16-3 at 33

(emphasis added). This language, by its plain terms, requires a

beneficiary or her representative to “appeal once” to Hartford

on each wholly or partially denied claim. The LTD certificate

is therefore not ambiguous in this regard.

4. Notice-Prejudice Rule

Lastly, Fortier argues that the court cannot dismiss Count

I on exhaustion grounds because defendants have failed to

demonstrate that they were prejudiced by her untimely appeal.

In support of this argument, Fortier relies on the “notice-

prejudice” rule, a doctrine recognized in some states that

requires an insurer to demonstrate prejudice before it can deny

insurance coverage solely on the basis that the insured’s claim

was untimely.

The parties agree that the New Hampshire Supreme Court has

recognized at least a limited form of the notice-prejudice rule

under New Hampshire common law. See Bianco Prof’l Ass’n v. Home

Ins. Co.,

(1999) (citation omitted) (applying

the rule to certain types of liability insurance policies).

And, the parties also agree that in a state where the notice-

prejudice rule is recognized, ERISA does not preempt the

15 application of that rule to an untimely initial claim for

benefits under an ERISA plan. See UNUM Life Ins. Co. of Am. v.

Ward,

, 367–73 (1999) (holding that ERISA does not

preempt California’s notice-prejudice rule because the rule

“regulat[es] insurance” and thus escapes preemption under

ERISA’s savings clause). Thus, the parties’ dispute requires

the court to answer a narrow question: does New Hampshire’s

notice-prejudice rule apply to untimely ERISA appeals?

Neither the Supreme Court nor the First Circuit (nor,

indeed, any court in this district) has considered this

particular issue. Of the handful of federal courts that have, a

majority have either held or suggested that the notice-prejudice

rule does not extend to untimely ERISA appeals. See Edwards v.

Briggs & Stratton Ret. Plan,

(7th Cir. 2011);

Chang v. Liberty Life Assur. Co. of Boston,

(9th Cir. 2007); Dietz-Clark v. HDR, Inc., No. 3:15-CV-00035

JWS,

, at *2 (D. Alaska Oct. 15, 2015); Knight v.

Provident Life & Acc. Ins. Co., No. 3:12-CV-01226,

, at *2 n. 4 (M.D. Tenn. Feb. 5, 2014); Tetreault v.

Reliance Standard Life Ins. Co., No. CIV.A. 10-11420-JLT,

, at *10 (D. Mass. Nov. 28, 2011), report and

recommendation adopted, No. CIV.A. 10-11420-JLT,

(D. Mass. Jan. 25, 2012). Contrary authority can be found in an

opinion out of the Eastern District of Pennsylvania, in which

16 the court suggests in dictum that an untimely ERISA appeal would

have been subject to the notice-prejudice rule, and a subsequent

decision out of the Western District of Pennsylvania that

parenthetically quotes that dictum. See Foley v. Int’l Bhd. of

Elec. Workers Local Union 98 Pension Fund,

,

803 n. 6 (E.D. Pa. 2000); see also Taylor v. Fortis Benefits

Ins. Co., No. CIV. A. 07-528,

, at *3 (W.D. Pa.

May 1, 2008), report and recommendation adopted, No. 2:07-CV-

528,

(W.D. Pa. Aug. 6, 2008), aff’d sub nom.

Taylor, Jr. v. Union Sec. Ins. Co.,

(3d Cir.

2009).

Though inclined to agree with the majority position, the

court declines to rule now, as a matter of law, that the notice-

prejudice rule is inapplicable to Fortier’s ERISA appeal.

Several considerations militate against resolving this issue

without further briefing. For one, most of the courts taking

the majority position relied on particular nuances in state

insurance law when concluding that the notice-prejudice rule did

not apply to ERISA appeals.3 Here, no party has addressed how

3 Both the Edwards and Tetreault courts relied on the fact that the underlying state notice-prejudice rules only applied to liability insurance policies. See

;

, at *9. Similarly, the Dietz-Clark court explicitly noted that Alaska cases “simply do not support application of the notice-prejudice rule to a deadline of a post-denial appeals that is mandated by a federal regulation.”

, at *2.

17 New Hampshire insurance law may be similar to or different from

the law applied in those cases or how the nuances of New

Hampshire law might impact the application of the notice-

prejudice rule in this case. Additionally, nearly all of the

cases addressing this question were decided on summary judgment.4

These facts, when considered in light of the lack of controlling

authority on this issue and the relative paucity of authority

from other jurisdictions, persuade the court to refrain from

ruling on this matter now.

The court therefore defers ruling on the application of the

New Hampshire notice-prejudice rule to this case until the

summary judgment stage. To the extent defendants renew their

exhaustion argument at that time, and Fortier continues to rely

on the notice-prejudice rule as a basis for defeating

exhaustion, the parties would be well-advised to further develop

this issue in their briefing. On this basis, defendants’ motion

to dismiss Count I is denied without prejudice.5

4 Only one of the cases cited above resolved this issue on a Rule 12(b)(6) motion. See Dietz-Clark,

, at *1.

5 In addition to her legal arguments, Fortier asserts numerous fact-based arguments as to why dismissal is improper. In light of the court’s resolution of the motion to dismiss as to Count I, the court need not address these factual arguments.

18 B. Count III

In Count III, Fortier contends that the LTD Plan violates

Titles I and III of the ADA and “New Hampshire anti-

discrimination laws” by treating those suffering from mental

disabilities differently than those suffering from physical

disabilities. Defendants argue that Fortier lacks standing to

bring this claim. Alternatively, they contend that Fortier has

failed to state a claim upon which relief may be granted. The

court declines to reach the standing issue because, even

assuming standing exists, Fortier has not stated a viable claim

for relief.

Though the First Circuit has not directly considered

whether the ADA is violated when, as here, a long-term

disability insurance plan provides different levels of benefits

for physical and mental disabilities, at least two courts in

this district have answered this question in the negative. See

Witham v. Brigham & Women’s Hosp., Inc., No. CIV. 00-268-M,

, at *4 (D.N.H. May 31, 2001); Pelletier v. Fleet Fin.

Grp., Inc., No. CIV. 99-245-B,

, at *2 (D.N.H.

Sept. 19, 2000). In reaching their conclusions, these courts

relied on the reasoning of the Second Circuit’s decision in EEOC

v. Staten Island Sav. Bank,

(2d Cir. 2000). See

Witham,

, at *3; Pelletier,

, at

*3. In that case, the Second Circuit considered several

19 factors, including: (1) the statutory language of Title I; (2)

the ADA’s legislative history; (3) the existence of the ADA’s

safe-harbor provision; (4) regulatory guidance; and (5)

Congress’s awareness of the “historic and nearly universal

practice inherent in the insurance industry of providing

different benefits for different disabilities.” See Staten

Island Sav. Bank, 207 F.3d at 151-53; Witham,

, at

*3; Pelletier,

, at *3. The Witham and Pelletier

courts also distinguished Olmstead v. L.C.,

(1999),

in which the Supreme Court suggested that the ADA might prohibit

individualized discrimination based on a particular disability

or category of disabilities, concluding that the “reasoning

underlying Olmstead does not invalidate the type of disability

insurance policy at issue . . . .” See Witham,

,

at *3; Pelletier,

, at *3; see also Weyer v.

Twentieth Century Fox Film Corp.,

, 1117–18 (9th

Cir. 2000) (“Olmstead does not speak to insurance

classifications . . . [and] [a]pplying Olmstead to insurance

classifications would conflict with the [Supreme] Court's

decisions in Alexander v. Choate and Traynor v. Turnage, which

both endorse distinctions between types of disabilities, and

Congress’s clear instruction in the insurance safe harbor that

the Act was not intended to reach common insurance practices

such as underwriting of risks.”).

20 In addition to the Second Circuit, there are at least six

other courts of appeals that so hold. See Weyer,

(9th Cir. 2000); Kimber v. Thiokol Corp.,

(10th Cir. 1999); Lewis v. Kmart Corp.,

(4th Cir. 1999); Ford v. Schering-Plough Corp.,

(3d Cir. 1998); Parker v. Metro. Life Ins. Co.,

(6th Cir. 1997); EEOC v. CNA Ins. Cos.,

(7th Cir. 1996). Although there is a small handful

of contrary district court authority, see, e.g., Fletcher v.

Tufts Univ.,

(D. Mass. 2005), the

circuits appear to uniformly hold that differential-benefits

claims are not cognizable under the ADA.

While recognizing this weight of authority, Fortier relies

on Sirva Relocation, LLC v. Richie,

(1st Cir.

2015), to argue that dismissal of Count III is improper. The

appellant in Sirva, like Fortier here, urged the court to hold

that a differential-benefits claim exists under the ADA. The

First Circuit declined in Sirva to rule on the viability of

differential-benefits claims under the ADA, concluding that a

ruling on that issue was unnecessary to resolve the appeal.

. The First Circuit nevertheless noted the consensus of

circuit authority holding that no differential-benefits claim

exists under the ADA, as well as the contrarian views held by

some district courts.

. The First Circuit declined

21 to describe the appellee’s position as a “slam dunk,” but noted

that “the answer to [the] question seem[ed] much clearer than

the [appellant] admit[ted] . . . .”

.

The court agrees with Fortier that Sirva leaves open the

question of differential-benefits claims under the ADA as a

matter of First Circuit law. This does not, however, compel the

court to conclude, as Fortier appears to contend, that the First

Circuit was signaling in Sirva that it was inclined to recognize

such claims. There is nothing in Sirva (nor, indeed, in any of

the district court opinions recognizing differential-benefits

claims) that persuades the court that Witham and Pelletier were

incorrectly decided or that the court should stray from the

consensus view of the other circuit courts. Thus, the court

concludes, for the reasons discussed in these prior cases, that

differential-benefits claims are not cognizable under the ADA.

Defendants’ motion is therefore granted as to Count III.6

6 Though Fortier also alleges that the LTD Plan violates “New Hampshire anti-discrimination laws,” she has not identified, either in the first amended complaint or her filings, any state statutory provision or common-law doctrine that she believes has been violated. Nor has she explained how a differential-benefits claim is cognizable under New Hampshire law. She has therefore failed to provide any state-law basis to sustain Count III.

22 IV. Conclusion

For the foregoing reasons, defendants’ motion to dismiss

(doc. no. 16) is denied as to Count I and granted as to Count

III.

SO ORDERED.

__________________________ Landya B. McCafferty United States District Judge

September 11, 2017

cc: Jonathan M. Feigenbaum, Esq. Joseph C. Galanes, Esq. Byrne J. Decker, Esq. Kaveh S. Shahi, Esq.

23