[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
DECEMBER 14, 2005
No. 04-11245
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 02-01819-CV-T-27-TGW
KIMBERLY SLOMCENSKI,
Plaintiff-Appellant,
versus
CITIBANK, N.A., a foreign corporation,
CITIBANK LONG TERM DISABILITY PLAN,
JOHN DOES, (1 through 6) as plan
administrator for the Citibank Medical
Benefits Plan, Citibank Vision Care
Benefits Plan, Citibank Life Insurance
Benefits Plan, Citibank Dental Care
Benefits Plan, Citibank Accidental
Death & Disability Benefits Plan,
Citibank Pharmaceutical Benefits Plan,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 14, 2005)
Before EDMONDSON, Chief Judge, BIRCH and COX, Circuit Judges.
BIRCH, Circuit Judge:
This appeal requires us to address, inter alia, whether a fact-based argument
first made by plaintiff-appellant, Kimberly Slomcenski upon a motion for
reconsideration of the district court’s order granting summary judgment in favor of
defendant-appellee Citibank, N.A. (“Citibank”) provides a basis for denial of
summary judgment in favor of Citibank. The district court – after refusing to void
a provision limiting long-term disability (“LTD”) benefits for conditions related to
mental or nervous disorders, which Slomcenski had challenged pursuant to the
Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001
et seq. – determined that Citibank’s denial of Slomcenski’s claim for continued
LTD benefits was not arbitrary and capricious. Accordingly, the district court
entered summary judgment in favor of Citibank on Slomcenski’s ERISA claim. In
addition, the district court entered summary judgment in favor of Citibank on
Slomcenski’s claim brought under the Americans with Disabilities Act of 1990
(“ADA”), 42 U.S.C. § 12101 et seq. Because we agree with the district court that
Slomcenski failed to carry her burden of demonstrating any genuine issue of
material fact as to the validity of the limiting provision, we AFFIRM the district
2
court’s grant of summary judgment on Slomcenski’s ERISA claim. The district
court’s disposition of Slomcenski’s ADA claim is also AFFIRMED.
I. BACKGROUND
Slomcenski was hired as an information technology specialist in Citibank’s
human resources department in November 1997. In this capacity, she was required
to develop, implement, and maintain high quality systems, interface with managers
about the department’s systems needs, and provide training and documentation for
system users. This position required an employee with five to ten years of
experience and strong analytical, organizational, and communications skills.
As a Citibank employee, Slomcenski was covered by Citibank’s Long Term
Disability Plan (“Plan”). The Human Resources Policy Committee of Citibank
(“Committee”) was administrator of the Plan. Pursuant to the Plan, the Committee
had the authority to “interpret and construe the provision[s] of the Plan and to
finally decide any matters arising under the Plan.” R1-33 (Exhibits), Tab A, Exh. 1
at 10. The Plan also specified that the Committee might “at any time, by written
notice, amend or terminate th[e] Plan in whole or in part.” Id. at 14. In addition,
the Plan provided the Committee with the authority to delegate some or all of its
responsibilities as it deemed appropriate. Pursuant to this provision, Citibank
entered into an Administrative Services Agreement with Continental Casualty
3
Company (“Continental”) which granted Continental sole responsibility for
managing the Plan and making final disability claim determinations. The
agreement with Continental remained in effect from 1 January 1998 through 31
December 2001. Thereafter, Citibank entered into a similar Administrative
Services Agreement with Metropolitan Life Insurance Company (“MetLife”). This
agreement, which has been in effect since January 2002, provided that MetLife had
all “discretionary authority for approving or denying Plan Benefits in whole or in
part.” Id. Exh. 3 at 6.
A. Eligibility and Coverage Provisions
The Plan was issued and made effective on 1 October 1993. Employees
became eligible to receive benefits under the Plan on the first day of their
employment at Citibank. If an employee became disabled, then he or she was
eligible to receive short term disability benefits (“STD”) for 180 days. If the
employee remained disabled after the expiration of the STD period, the receipt of
LTD benefits was conditioned on an inability to perform each and every material
duty pertaining to his or her regular occupation. After twenty-four consecutive
months of disability, inclusive of the initial 180-day STD period, the employee
could continue to receive LTD benefits only if unable to perform every occupation
for which he or she was or could become qualified.
4
As required by ERISA, Citibank provided its employees with a summary
plan description (“SPD”), which explained benefits options to employees in a
straightforward manner. The SPD in place at the time of Slomcenski’s
employment explained that a disabled employee could receive 180 days of STD
benefits, followed by eighteen months of LTD benefits if the employee was
medically unable to perform the material and substantial duties of the employee’s
own occupation, followed by continued LTD benefits if the employee was
medically unable to perform the essential duties of any occupation for which the
employee was or could become reasonably qualified. If the employee was disabled
due to a mental or nervous disorder, however, the SPD reflected a limit on
disability payments to a total of thirty months from the date the mental or nervous
disorder began, unless the employee was confined as an inpatient in a hospital or
other treatment center.
It is undisputed that this mental or nervous disorder benefits limitation was
not included in the Plan when it was issued in 1993. Because the issue of
Committee activity was raised for the first time after the summary judgment record
had closed, that record contains no direct evidence of Committee activity or lack
thereof in connection with the adoption of a mental or nervous disorder limitation
or its inclusion in the SPD. The district court found that Citibank first gave its
5
employees notice of the new limitation by way of a summary of material
modifications (“SMM”) issued in 1997. The amendment was included in the SPD
issued in March of 1997, which was subsequently filed with the Department of
Labor in compliance with 29 C.F.R. § 2520.104a-3 (1997). All SPD’s issued from
1997 on, including the 1998 SPD issued to Slomcenski, contained the mental or
nervous disorder limitations provision.
B. Slomcenski’s Disability
On 21 July 1999, Slomcenski applied for disability benefits. She claimed
that she suffered from headaches, nausea, insomnia, depression, loss of caring, loss
of interest, and allergies. According to Slomcenski, these conditions developed
following a change of management at her work. Dr. Gilson Webb, a psychiatrist
who examined Slomcenski, diagnosed her with major depressive disorder. On the
basis of Dr. Webb’s diagnoses and Slomcenski’s failure to respond to
antidepressants and psychotherapy, Continental awarded Slomcenski disability
benefits under the Plan.
Following this initial benefits determination, Slomcenski’s condition was
routinely monitored and re-evaluated. In December 1999, Continental referred
Slomcenski to Dr. Daniel Sprehe for an independent psychiatric medical
evaluation. Dr. Sprehe confirmed that Slomcenski still suffered from severe
6
depression. Under a category for physical medical problems, Dr. Sprehe diagnosed
Slomcenski with Hashimoto’s Thyroid Disease. In March 2000, Continental
arranged for Dr. Charles Paskewicz, a licensed psychologist, to conduct an
independent review of Slomcenski’s file. Paskewicz found that all the available
evidence indicated that Slomcenski was continuing to suffer from severe
depression. As a result of these diagnoses, Continental informed Slomcenski that
she would continue to receive benefits. However, in the benefits award letter,
Continental stated that, if Slomcenski remained disabled, her receipt of benefits
would be limited to thirty months because her disability was the result of a mental
or nervous disorder. According to the letter, her benefits would terminate in
January 2002.
In October 2000, Dr. Robert Gilbert diagnosed Slomcenski with irritable
bowel syndrome. In January 2001, Dr. Webb re-examined Slomcenski and found
that, while Slomcenski continued to suffer from major depressive disorder, “some
of [her] symptoms [appeared to be] related to her physical condition.” R1-31
(Exhibits) at SYN00035. In September 2001, Dr. Paul Winters examined
Slomcenski after she complained of fatigue, numbness on part of her foot, and
lower back pain. Dr. Winters noted that Slomcenski was scheduled to be evaluated
for fibromyalgia. During this time, Slomcenski was also evaluated by a
7
rheumatologist, Dr. Michael Burnette, for her complaints of persistent joint pain
and chronic fatigue. Dr. Burnette found that Slomcenski had some trigger points
for pain in her upper back and some pain with the movement of her spine. Dr.
Burnette concluded that Slomcenski “ha[d] manifestations of a fibromyalgia
disorder, and [that] her history suggest[ed] chronic fatigue.” Id. at SYN00038.
Following Burnette’s evaluation, Slomcenski sent a letter to Continental
which indicated that she had been diagnosed with fibromyalgia and chronic fatigue
syndrome. Slomcenski also reported that she experienced severe pain on a daily
basis. In December 2001, Continental responded that Slomcenski’s letter and
supporting documentation were insufficient to support the finding that Slomcenski
suffered from a physical impairment. Accordingly, Continental maintained that
Slomcenski’s benefits would be terminated in January 2002 pursuant to the thirty-
month mental or nervous disorder limitation.
Slomcenski appealed Continental’s determination and argued that her
depression stemmed from the fibromyalgia, which was a physical condition. By
this time, MetLife had assumed responsibility for making benefits determinations
under the Plan and referred Slomcenski’s file to Dr. Amy Hopkins for an
independent review. Based on her review of all the diagnoses in Slomcenski’s file,
Dr. Hopkins observed that Slomcenski “ha[d] major depression, and all of her
8
[symptoms] can be explained on [that] basis.” Id. at SYN0009. She concluded
that Slomcenski did not have an “objectively documented physical impairment”
and that her disability was related to a mental disorder. Id. at SYN00010.
Accordingly, the original determination by Continental that Slomcenski’s benefits
would terminate in January 2002 was affirmed.
C. Procedural History
Slomcenski filed suit against Citibank and related entities in September
2002. In an amended complaint, Slomcenski alleged that Citibank had violated
ERISA and the ADA by denying her claim for continued LTD benefits under the
Plan pursuant to the mental or nervous disorder benefits limitation provision. The
limitations provision appeared in the copies of the SPD attached to the original and
the amended complaints. Neither complaint challenges the validity of the
provision. Both in her response to Citibank’s motion for summary judgment on
the ERISA claim and in her cross-motion for summary judgment, however,
Slomcenski argues that the provision was not properly part of the Plan because it
appears only in the SPD, not in the original Plan document. Citibank responded
with a supplemental affidavit by Phyllis Wade, a Citigroup, Inc. Benefits Manager,
stating that the Plan had been properly amended to include the provision through
an SMM giving notice to employees, the 1997 revision of the SPD adding the
9
provision, and the filing of that new SPD with the Department of Labor. The court
found that Slomcenski, far from showing the invalidity of the provision for the
purposes of her own motion for summary judgment, had not raised a genuine issue
of material fact as the validity of the provision for the purposes of Citibank’s
motion. Accordingly, taking the mental or nervous disorder limitation into
consideration, the court determined that Citibank’s denial of benefits was not
arbitrary and capricious and therefore entered summary judgment in favor of
Citibank on Slomcenski’s ERISA claim.1 In addition, the district court entered
summary judgment in favor of Citibank on Slomcenski’s ADA claim because it
found that she was unable to perform her job function, and was, therefore, not a
“qualified individual” for the purposes of bringing an ADA claim.
Slomcenski filed a motion to reconsider, for the first time arguing that the
provision was void because none of the documents in which it is included refer to
any Committee action in relation thereto.2 The court observed that neither ERISA
1
This order contains the first mention of the Plan provision requiring Committee action
for valid amendment.
2
The motion also rehashed her arguments about the absence of the provision in the
original plan document and challenged the propriety of the court’s consideration of the Wade
affidavit. The court correctly rejected the first argument on the ground that it had been properly
disposed of the first time around and Slomcenski had failed to “‘set forth facts or law of a
strongly convincing nature to induce’ reversal denying her motion for summary judgment.” R2-
74 at 4. The court also concluded that, because Slomcenski had failed previously to challenge
the Wade affidavit, the argument that it ought not to have been considered could not form a basis
for reconsideration. Notwithstanding that, the court further observed that because the affidavit
did not contradict Wade’s prior testimony, it had been properly considered anyway.
10
nor the Plan’s own amendment procedures required reissuance of the original plan
document subsequent to an amendment and that the Plan’s provision for written
notice of any amendment to Plan participants did not require reference to
Committee action. Accordingly, the court ruled that in light of Wade’s affidavit
stating that the provision had been properly added to the Plan, Slomcenski’s bare
contention that the Committee had not participated in the amendment failed to raise
a genuine issue of material fact. The summary judgment order remained
undisturbed.
On appeal, Slomcenski argues that the district court erred in entering
summary judgment in favor of Citibank on her ERISA claim by finding that the
mental or nervous disorder benefits limitation provision could be considered in
determining whether the denial of her claim for LTD benefits was arbitrary and
capricious.3 Alternatively, assuming the benefits limitation provision was properly
considered, Slomcenski argues that Citibank’s denial of her claim for benefits was
arbitrary and capricious because Citibank based its denial on the lack of objective
3
Citibank argues that Slomcenski waived her ability to make this argument because she
raised it for the first time in her motion for summary judgment in district court. Although the
court referred to the argument as “arguably untimely” and an “inappropriate attempt to inject a
new theory into the case” without foundation in the complaint, it did address whether the mental
or nervous disorder limitation could be properly considered in evaluating the denial of LTD
benefits in both its orders regarding summary judgment of the claim. R2-74 at 2; R2-62 at 15-
16. Therefore, we may consider Slomcenski’s argument that the Committee did not approve the
limitation provision. See Local 92, Int’l Ass’n Bridge, Struct. Ornam. Ironwks. v. B&B Steel
Erectors, Inc., 850 F.2d 1551, 1555 n.3 (11th Cir. 1988).
11
evidence of a physical impairment, a “proof requirement” not found in any Plan
document. Appellant’s Br. at 16-17. Slomcenski also challenges the district
court’s disposition of her ADA claim.
II. DISCUSSION
A. ERISA Claim
We review de novo the district court’s grant of summary judgment in a case
involving a claim for benefits governed by ERISA. See Williams v. BellSouth
Telecomms., Inc., 373 F.3d 1132, 1134 (11th Cir. 2004). In making this inquiry,
“[w]e view all evidence and factual inferences reasonably drawn from the evidence
in the light most favorable to the non-moving party.” Burton v. Tampa Hous.
Auth., 271 F.3d 1274, 1277 (11th Cir. 2001). Summary judgment is appropriate
“if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.
Ct. 2548, 2553 n.4 (1986).
“We exercise a complete and independent review of the district court’s grant
of summary judgment to determine whether there are any genuine issues of
material fact which preclude judgment as a matter of law in favor of the moving
12
party.” Sutton v. BellSouth Telecomms., Inc., 189 F.3d 1318, 1319 (11th Cir.
1999) (per curiam). “In determining whether an issue of fact is ‘genuine’ for the
purpose of defeating summary judgment, we ask whether the evidence is ‘such that
a reasonable jury could return a verdict for the nonmoving party.’” Hudgens v.
Bell Helicopters/Textron, 328 F.3d 1329, 1344-45 (11th Cir. 2003) (citations
omitted). Here, these standards must be applied to evaluate Slomcenski’s
contention that the Committee did not properly amend the Plan to include the
benefits limitation. We find that Slomcenski has not carried this burden.
1. Limitations Provision
ERISA requires that every employee benefits plan “provide a procedure for
amending such plan, and for identifying the persons who have authority to amend
the plan.” 29 U.S.C. § 1102(b)(3). In addition, once a company sponsoring a
benefits plan has adopted a procedure for amending it, the company must follow
that procedure when purporting to amend its benefits plan. See Curtiss-Wright
Corp. v. Schoonejongen, 514 U.S. 73, 85, 115 S. Ct. 1223, 1231 (1995); Shaw v.
Conn. Gen. Life Ins. Co., 353 F.3d 1276, 1283 (11th Cir. 2003) (“Having created a
particular [amendment] procedure, it seems evident to us that the parties to the
agreement must follow that procedure in order to create enforceable amendments
to their contract.”). For example, where a benefits plan required a participant to
13
make a written request to amend a particular plan provision, we determined that an
oral agreement to accomplish the same was insufficient to amend a benefits plan
under ERISA. See Nachwalter v. Christie, 805 F.2d 956, 960 (11th Cir. 1986).
Likewise, where a benefits plan required that both the sponsoring company and the
plan administrator sign a written document authorizing amendments to the plan,
our court has found that an SPD that was not formally approved by both parties, as
specifically required by that plan’s amendment provision, was not a valid
amendment to the plan. See Shaw, 353 F.3d at 1284.
In addition to the requirement that amendment procedures, once adopted,
must be followed for any amendment to be valid, ERISA imposes restraints on the
amendment procedures that can be adopted. For instance, we have determined that
the ERISA requirement that “[e]very employee benefit plan shall be established
and maintained pursuant to a written instrument,” 29 U.S.C. § 1102(a)(1), makes
informal written notice memorializing an oral amendment, such as a posted notice,
memo, letter, or brochure, an impermissible amendment mechanism. Smith v.
Nat’l Credit Union Admin. Bd., 36 F.3d 1077, 1080 (11th Cir. 1994). “[A]ny
modification or amendment to an ERISA plan can be implemented or applied only
after the amendment has been appropriately adopted in a formal, complete and
written form.” Smith, 36 F.3d at 1081 (emphasis in original); see also Inter-Modal
14
Rail Employees Ass’n v. Atchison, Topeka & Santa Fe Ry. Co., 520 U.S. 510, 516,
117 S. Ct. 1513, 1516 (1997) (requiring “formal procedures” to amend a benefits
plan).
Based on this precedent and the summary judgment record currently before
us, we conclude that Slomcenski has failed to raise a genuine issue of material fact
as to the validity of the amendment adding the LTD benefits limitation provision.
Although Slomcenski contends that Citibank did not follow the Plan’s amendment
procedures in purporting to adopt the mental or nervous disorder benefits
limitation, the only support she offers for this contention is the absence of any
mention of Committee action in either the SMM or the SPD.4 Under the terms of
the Plan, only the Committee was vested with the authority to amend the Plan. The
Plan’s amendment procedure provision required that written notice of any
amendment be given to participant employees. The procedure provision did not
require, however, that such notice be in any particular form or that it include any
specific information. Particularly, it did not require any reference to Committee
action. Citibank has not specifically contended that the Committee ever took any
action with regard to the inclusion of a mental or nervous disorder benefits
4
To the extent she reasserts her earlier argument that the provision is invalid because it
does not appear in the original Plan document, we agree with and adopt the reasoning of the
district court.
15
limitation, but it has offered, in the form of the supplemental Wade affidavit, more
general evidence that the amendment was properly made.
Alternatively, assuming the Committee had followed the Plan’s amendment
procedures, Slomcenski also argues, relying on Smith, that SMMs and SPDs are
insufficiently formal plan documents to amend a Plan pursuant to the requirement
of 29 U.S.C. § 1102(a)(1) that “[e]very employee benefit plan . . . be established
and maintained pursuant to a written instrument.”
A distinction between formal “written instruments” and informal documents
has been maintained so that plan participants can always effectively decipher their
rights and obligations. Smith, 36 F.3d at 1081. Although it does stand for the
proposition that informal documents may not effect an amendment, however,
Smith deals with notices “posted and/or distributed . . . in the customary manner
typically used to disseminate employee communications and information,” not
with SPDs. Id. at 1080 n.4. Further, the notices at issue in Smith did not
“completely or adequately explain the modifications” to the plan and so “did not
protect the interests of the employees and their beneficiaries.” Smith, 36 F.3d at
1081.
SPDs, on the other hand, as mandatory written instruments, required by
ERISA to be “sufficiently accurate and comprehensive to reasonably apprise . . .
16
participants and beneficiaries of their rights and obligations under the plan,” are
sufficiently formal to meet the requirements of § 1102. See 29 U.S.C. § 1022(a);
Alday v. Container Corp. of Amer., 906 F.2d 660, 665-66 (11th Cir. 1990). We
find that the SPD at issue here, which was filed with the United States Department
of Labor in compliance with ERISA, described and explained the LTD limitations
provision completely enough to give employees sufficient notice of their rights
under the Plan.
Accordingly, because no genuine issue of fact has been raised as to whether
the Committee was involved in drafting and imposition of the limitations provision
and the issuance of the SMM and SPDs and because an SPD is sufficiently formal
to meet the amendment procedure requirements of the both ERISA and our circuit,
we find that the district court’s grant of summary judgment based on consideration
of that provision should be affirmed.5
2. Denial of Benefits
The standard of review applied to a plan administrator’s determination of an
employee’s claim for benefits is based on whether the plan vested the administrator
5
We do not reach the issue of whether the rule in Loskill v. Barnett Banks, Inc. Severance
Pay Plan, 289 F.3d 734, 738 (11th Cir. 2002) (per curiam), would apply if Citibank had failed to
follow the Plan’s amendment procedures, thereby requiring a further showing of either bad faith
on the part of Citibank or detrimental reliance on the part of Slomcenski before the amendment
would be voided.
17
with discretionary authority to make benefits determinations and whether the
administrator had a conflict of interest in making such determinations. See Shaw,
353 F.3d at 1282. A decision governed by a plan that gives such discretion is
reviewed under an arbitrary and capricious standard. Id. The district court found,
and the parties do not dispute on appeal, that MetLife’s denial of benefits to
Slomcenski is governed by the arbitrary and capricious standard of review.
Accordingly, we review the Plan adminstrator’s denial of benefits to Slomcenski
for whether it was arbitrary and capricious and agree with the district court that it
was not.
Giving more weight to the opinions of some experts than to the opinions of
other experts is not an arbitrary or capricious practice. See Black & Decker
Disabil. Plan v. Nord, 538 U.S. 822, 831-34, 123 S. Ct. 1965, 1970-72 (2003)
(reversing summary judgment in favor of plaintiff awarded solely on the basis that
the plan administrator credited its own doctor’s evaluation of the claimant’s
medical records over that of the treating physician). An administrator’s
determination must be upheld if it has a reasonable factual basis, even if the record
also contains contrary information. Jett v. Blue Cross & Blue Shield of Ala., Inc.,
890 F.2d 1137, 1140 (11th Cir. 1989).
18
Here, the Plan administrator appears to have made the decision to deny
benefits by giving more weight to the opinions of Drs. Webb, Sprehe, and
Paskewicz than to that of Dr. Burnette. Drs. Webb, Sprehe, and Paskewicz each
diagnosed Slomcenski with major depressive disorder and noted no physical
ailments. Even Dr. Burnette, who diagnosed fibromyalgia, recognized that both
fibromyalgia and chronic fatigue disorder are related to depression. Accordingly,
as the district court concluded, it was not unreasonable for the Plan administrator
to conclude, based on this information, that Slomcenski’s disability was related to
a mental or nervous disorder. Because there was a reasonable basis for the
conclusion, it cannot be deemed arbitrary or capricious.
B. ADA Claim
We review de novo a district court’s grant of summary judgment on a claim
brought under the ADA. See Higdon v. Jackson, 393 F.3d 1211, 1218 (11th Cir.
2004). The ADA protects any “qualified individual with a disability” from
discrimination in regard to the terms, conditions, and privileges of employment.
42 U.S.C. § 12112(a). The term “qualified individual with a disability” 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.” 42 U.S.C. § 12111(8). The ADA defines
19
the term “disability” as: “(A) a physical or mental impairment that substantially
limits one or more of the major life activities of such individual; (B) a record of
such an impairment; or (C) being regarded as having such an impairment.” 42
U.S.C. § 12102(2). Because the ADA reserves its protections for individuals still
able to perform the essential functions of a job, albeit perhaps with reasonable
accommodation, a plaintiff who is totally disabled and unable to work at all is
precluded from suing for discrimination thereunder. See Morgan v. Joint Admin.
Bd., 268 F.3d 456, 459 (7th Cir. 2001); see also Cleveland v. Policy Mgmt. Sys.
Corp., 526 U.S. 795, 806, 119 S. Ct. 1597, 1603 (1999) (noting that plaintiff’s
claim that she is “unable to work” forecloses her status as a “qualified individual”
for the purposes of the ADA); Weyer v. Twentieth Century Fox Film Corp., 198
F.3d 1104, 1112 (9th Cir. 2000) (affirming grant of summary judgment on ADA
claim because plaintiff’s claim that she was “totally disabled” precluded her from
claiming that she was a “qualified individual” under the ADA).
Based on this precedent, we reject Slomcenski’s argument that she could sue
Citibank under the ADA for its purported adoption and enforcement of the mental
or nervous disorder benefits limitation. A plaintiff may seek redress for
discrimination under the ADA if that individual is a “qualified individual with a
disability.” 42 U.S.C. §§ 12112(a), 12117(a). At the time Citibank employees
20
received notice of the mental or nervous disorder benefits limitation through the
1997 SMM and subsequent SPDs, however, Slomcenski was not yet disabled. In
her initial brief, Slomcenski represented that she “began to suffer fibromyalgia
symptoms in 1999” and therefore applied for disability benefits in July 1999.
Appellant’s Br. at 4. Slomcenski asserted that, prior to this onset of symptoms in
1999, she “fully met Citibank’s job expectations.” Id. She had no prior record of
impairment and there is no evidence that anyone at Citibank regarded her as
disabled prior to July 1999. Accordingly, there is no evidence in the record that
she had a disability as defined by 42 U.S.C. § 12102(2) at the time the mental or
nervous disorder limitation was purportedly adopted, and therefore she was not a
qualified individual with a disability at that time. Additionally, Slomcenski could
not have been considered a qualified individual with a disability when Citibank
attempted to enforce the mental or nervous disorder limitation provision against
her in January 2002 because her claim for LTD benefits was premised on her
representation that she was unable to perform every occupation for which she was
qualified or could become qualified. See 42 U.S.C. § 12111(8) (requiring that an
ADA plaintiff be able to perform the “essential functions of the employment
position that such individual holds or desires”); Cleveland, 526 U.S. at 806, 119 S.
Ct. at 1603; Weyer, 198 F.3d at 1108. Because Slomcenski could not demonstrate
21
that she was a qualified individual with a disability as required to bring a claim
under the ADA, the district court properly granted summary judgment in favor of
Citibank on Slomcenski’s ADA claim.6
III. CONCLUSION
In her appeal, Slomcenski has pursued a set of arguments, raised late in the
summary judgment proceedings before the district court, that Citibank failed to
follow proper procedures for amending its employee benefits plan under ERISA.
We conclude that an SPD is a sufficiently formal plan document to have effected
an amendment in this case and that Slomcenski has failed to carry her burden as to
raising any genuine issue of material fact as to the mental or nervous disorder
benefits limitation amendment. Accordingly, the district court properly considered
the mental or nervous disorder limitation in its grant of summary judgment; we
agree with its finding that the Plan administrator’s decision to deny benefits was
not arbitrary or capricious; and we AFFIRM its grant of summary judgment as to
the ERISA claim. Further, because the district court properly concluded that
Slomcenski was not a “qualified individual with a disability” under the ADA, the
6
Because we conclude that Slomcenski was not qualified to bring an ADA claim, we
decline to reach the merits of her claim that the reasoning in our opinion in Johnson v. Kmart
Corporation, 273 F.3d 1035 (11th Cir. 2001), vacated and reh’g granted, 273 F.3d 1070 (11th
Cir. 2001), stay granted pending bankruptcy proceedings, 281 F.3d 1368 (11th Cir. 2002),
dictates that the inclusion of a mental or nervous disorder limitation like the one at issue here
violates the ADA.
22
district court’s grant of summary judgment on Slomcenski’s ADA claim is also
AFFIRMED.
23