Pankey v. Aetna Life Insurance Company et al

MOTION to dismiss for failure to state a claim , MOTION to dismiss for lack of jurisdiction

M.D. Fla.December 15, 2016

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION JUDSON CLAY PANKEY, Plaintiff, v. AETNA LIFE INSURANCE COMPANY, MES GROUP, INC., d/b/a MES SOLUTIONS, Defendants. No. 6:16-cv-01011-Orl-37GJK DISPOSITIVE MOTION DEFENDANTS’ MOTION TO DISMISS FIRST AMENDED COMPLAINT WITH SUPPORTING MEMORANDUM OF LAW Defendants Aetna Life Insurance Company (“Aetna”) and MES Group, Inc. (“MES Group”) (collectively, “Defendants”), pursuant to Fed. R. Civ. P. 8(a), 12(b)(1), and 12(b)(6), respectfully move this Court for an order dismissing with prejudice all claims against them.1 INTRODUCTION This Court dismissed Plaintiff Judson Pankey’s (“Pankey”) original complaint because it was “a confusing and impermissible shotgun pleading” that sought “little more than compliance with non-specific ‘requirements of Title III of the ADA,’” and consisted of “conclusory and insufficient allegation[s]” that failed to support Article III standing. Order 2-5, D.E. 34 (“Order”). Those same defects doom the First Amended Complaint (“FAC”). 1 As previously noted, see D.E. 14, at 1 n.1, MES Group is not a proper defendant in this action. Rather, the entity that performed the alleged consultative services is Lonestar Consulting Services, LLC, d/b/a MES Peer Review Services, a subsidiary of Medical Evaluation Specialists, Inc., which in turn is a subsidiary of MES Group. As the First Amended Complaint makes no effort to address this deficiency and pleads no facts that could justify veil-piercing, the claims against MES Group should be dismissed on this basis alone. See, e.g., Global Acquisitions Network v. Bank of Am. Corp., 2013 WL 604159, at *4 (C.D. Cal. Feb. 19, 2013). Case 6:16-cv-01011-RBD-GJK Document 36 Filed 12/15/16 Page 1 of 26 PageID 248 2 Pankey continues to lack Article III standing because his amended complaint for declaratory and injunctive relief is based on a past incident without any plausible allegation of an imminent future injury. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992). There is no plausible allegation that Aetna is prohibiting him from participating in a rehabilitation program, or that Aetna has ever denied-much less continues to deny-Pankey assistive devices. In fact, Aetna has repeatedly offered all requested assistive accommodations in its interactions with Pankey, only to be met with flat refusals and threats of litigation. Pankey similarly fails to allege any threat of future harm as a result of Defendants’ purportedly improper sharing of his health information. Even if Pankey could establish standing, his claims fail as a matter of law because, as explained in Defendants’ original motion to dismiss, the ADA does not apply to insurers, or their vendors, that administer employer-provided disability plans. See D.E. 14, at 11-17. And that result is exactly what Congress intended for claims concerning the processing of ERISA disability benefits. ERISA provides the exclusive remedies for challenges to an insurer’s processing of benefits. While this Court recognized that ERISA preemption “is limited to state laws,” Order 4, a cause of action under one federal statute can nonetheless displace remedies under another where, as here, Congress intended the two to be mutually exclusive. In any case, each of Pankey’s claims independently fails to satisfy Fed. R. Civ. P. 8(a)’s pleading standards and should be dismissed pursuant to Rule 12(b)(6). Pankey’s amended complaint, in short, fails to correct the many shortcomings that infected his original complaint. This Court should not entertain Pankey’s improper effort to use facially implausible ADA claims to dictate ERISA benefits. Case 6:16-cv-01011-RBD-GJK Document 36 Filed 12/15/16 Page 2 of 26 PageID 249 3 FACTUAL BACKGROUND Pankey alleges that in 2011 he became deaf and applied for benefits under his employer’s Aetna-administered long-term disability benefits plan, thus opening a series of communications with Aetna aimed at developing a “rehabilitation program” to facilitate benefit payments. FAC ¶¶ 5, 8-9. The crux of Pankey’s claims is that in 2012 he requested Communication Access Real-time Translation (“CART”) services for a proposed meeting to discuss his rehabilitation program, and that Aetna “delay[ed]” in having that meeting, thereby allegedly denying “the service of being evaluated for and participating in rehabilitation programs.” Id. ¶¶ 10-19, 44.2 Pankey does not allege that he was unable to communicate with Aetna about his benefits or rehabilitation program either before or after the time of the proposed “meeting,” or that Aetna was unresponsive to his communications. Nor does Pankey allege that he has been denied benefits under his plan or through the rehabilitation program; indeed, Aetna has continued to administer Pankey’s claim throughout this period. Id. ¶¶ 14, 17. Pankey further alleges that Aetna issued a “directive” to “not provide Plaintiff adaptive devices.” FAC ¶¶ 22, 47. That allegation is based on a single notation (taken entirely out of context) from Aetna’s claims files in which persons named “RMD DR. SNYDER AND RON MARTIN, SDCC” apparently “AGREED TO REFER TO VOC FOR TSA/LMA BASED ON DX OF SEVERE BILATERAL SENSORINEURAL HEARING 2 In the email exchange referenced in the amended complaint, Aetna explicitly proposed a “conference call.” Ex. 2 at 8. It is unclear from the amended complaint why Pankey has characterized this proposal as a request for a face-to-face meeting. These documents “‘are considered part of the pleadings’” where, as here, “‘they are referred to in the plaintiff’s complaint and are central to h[is] claim.’” Laskar v. Peterson, 771 F.3d 1291, 1295 n.3 (11th Cir. 2014) (citation omitted). Case 6:16-cv-01011-RBD-GJK Document 36 Filed 12/15/16 Page 3 of 26 PageID 250 4 LOSS. NO ADAPTIVE DEVICES. CLAIMANT HAS THE ABILITY TO COMMUNICATE EFFECTIVELY THROUGH EMAIL, TEXT, WRITING, AND READING LIPS.” Id. ¶ 20. Pankey’s amended complaint provides no information about who these persons are or the context in which they note that he was not utilizing adaptive devices for his hearing loss.3 Pankey also alleges that he filed an ADA administrative complaint with the U.S. Department of Justice in November 2012, which he first notified Aetna of in April 2014. FAC ¶¶ 15, 23-24. The Department of Justice initially “decided to do nothing” on his complaint; when Pankey “filed an amended ADA complaint in February 2014,” the Department of Justice then allegedly “referred his amended ADA complaint to its sponsored mediation program.” Id. ¶ 7. Apart from contending that the Department of Justice recommended the matter for mediation, Pankey does not allege that the Department of Justice took any other official action on his complaint. Nonetheless, he alleges that two actions taken by Defendants in administering his benefits plan were supposedly in “retaliation” for his filing an ADA administrative complaint. First, Pankey alleges that in May 2014, Aetna provided MES Group, a vendor that provides “independent medical examinations and peer reviews,” with certain of his medical records allegedly “obtained without his authorization,” and that MES Group then provided those records to a physician in the ordinary course of administering his benefits-all purportedly in “retaliation” for his filing an ADA administrative complaint. FAC ¶¶ 6, 26, 3 The amended complaint does not explain why Pankey has characterized this notation as a “directive,” as opposed to a simple notation of the fact that he does not utilize hearing aids. Case 6:16-cv-01011-RBD-GJK Document 36 Filed 12/15/16 Page 4 of 26 PageID 251 5 29-30, 35, 50. After Pankey complained about that purportedly improper disclosure, MES Group “wrote in an email” to Pankey that “it is our responsibility as an accredited independent review organization to ensure that we are providing a full, fair, and impartial review” of his benefits, which “entails providing the reviewing physician with all of the information that has been provided to us.” Id. ¶ 34. MES Group nevertheless told Pankey that “it would not further disclose” his medical records. Id. Second, Pankey alleges that in September 2015, Aetna notified him that it had inadvertently sent some of his personal information to another member, supposedly in retaliation for his filing the administrative complaint and participating in mediation. FAC ¶¶ 38, 53. Pankey admits that Aetna reached out to inform him that the information was “returned to Aetna and destroyed in line with Aetna’s privacy and security protocols,” and “offer[ed] [Pankey] free credit monitoring for one year as a precaution.” Id. ¶¶ 38, 39. Nevertheless, Pankey asserts that unspecified “technology … required Unnamed Person to extract/export the information from the compact disc to a secondary location,” posing a “threat of future harm.” Id. ¶¶ 40, 41. LEGAL STANDARD A court must dismiss a complaint under Fed. R. Civ. P. 12(b)(1) where a plaintiff lacks Article III standing. Fla. Wildlife Fed’n, Inc. v. S. Fla. Water Mgmt. Dist., 647 F.3d 1296, 1302 (11th Cir. 2011). The plaintiff “bears the burden of showing that he has standing for each type of relief sought.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). Additionally, a complaint must be dismissed under Rule 12(b)(6) unless it “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its Case 6:16-cv-01011-RBD-GJK Document 36 Filed 12/15/16 Page 5 of 26 PageID 252 6 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility is “more than a sheer possibility that a defendant has acted unlawfully,” and conclusory allegations are “not entitled to be assumed true.” Id. at 678, 681. If “the ‘more likely explanations’” for the alleged conduct “involve lawful, non- actionable behavior, the court should find that the plaintiff’s claim is not plausible.” Foster v. Select Med. Corp., 2012 WL 1415499, at *3 (M.D. Fla. Apr. 24, 2012) (quoting Iqbal, 556 U.S. at 681). And where amendment of a complaint “would be futile,” dismissal should be with prejudice. Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007) (per curiam). ARGUMENT I. Pankey Lacks Standing, Depriving This Court Of Article III Jurisdiction. The amended complaint must be dismissed because this Court lacks jurisdiction. Article III of the Constitution limits federal courts’ jurisdiction to deciding “‘actual cases or controversies.’” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006) (citation omitted). To invoke this jurisdiction, a plaintiff must have Article III standing, which requires the plaintiff to “‘allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.’” Id. at 342 (citation omitted). “In addition, ‘[b]ecause injunctions regulate future conduct, a party has standing to seek injunctive relief only if the party alleges ... a real and immediate-as opposed to a merely conjectural or hypothetical-threat of future injury.’” Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001). Accordingly, an ADA complaint seeking injunctive relief must be dismissed for lack of jurisdiction unless the plaintiff alleges non-speculative “facts giving rise to an inference that he will suffer future discrimination by the defendant.” Id.; see also Case 6:16-cv-01011-RBD-GJK Document 36 Filed 12/15/16 Page 6 of 26 PageID 253 7 City of L.A. v. Lyons, 461 U.S. 95, 105 (1983) (plaintiff lacked standing to seek to enjoin police practice based on alleged unlawful incident in the past). As in Pankey’s defective original complaint, Pankey’s amended complaint seeks only “declaratory and injunctive relief,” FAC ¶ 54; see id. at 17-18, yet fails to allege facts supporting any plausible inference of future injury. Apart from a conclusory assertion that he “will continue to be irreparably injured,” id. ¶ 54, Pankey’s amended complaint continues to allege only that Defendants discriminated or retaliated years in the past. Id. ¶¶ 7-41. These allegations of past conduct, and “conclusory and insufficient allegation[s] that he ‘will continue to be irreparably injured,’” Order 4, are insufficient to support Article III standing. As the Eleventh Circuit has made clear, such “past incidents of discrimination,” without a further (and plausible) showing of “a real and immediate threat of future discrimination,” do “not support a finding of an Article III case or controversy.” Shotz, 256 F.3d at 1082; see also Biro v. CP Venture Five-AV, LLC, 2013 WL 5487032, at *3 (M.D. Fla. Sept. 28, 2013) (no standing exists where the plaintiff “never actually alleges” with any specificity “the content of Defendant[s’] policies” or that “he will again be exposed to those policies”). At most, Counts I and II of Pankey’s amended complaint are comprised of unsupported speculation that he is “being denied th[e] service” of “being evaluated for and participating in rehabilitation programs” based on the rescheduling of a proposed meeting in 2012, and that Aetna “discriminates against him … by issuing a directive that no adaptive devices be provided to him.” FAC ¶¶ 44, 47. Yet the amended complaint alleges no factual basis on which to conclude that Pankey faces any “real and immediate” threat that Aetna will not allow him to participate in the rehabilitation program, or that Aetna will deny his request Case 6:16-cv-01011-RBD-GJK Document 36 Filed 12/15/16 Page 7 of 26 PageID 254 8 for adaptive services in future meetings. Shotz, 256 F.3d at 1082. To the contrary, the amended complaint refutes any notion that Pankey faces an imminent injury, as Pankey admits that Aetna continues to “handl[e] [his] claim in-house.” FAC ¶ 14. Pankey likewise concedes that Aetna offered him CART assistive services for the remote meeting in 2012. Id. ¶ 13; see Ex. 1; Ex. 2. As Aetna has repeatedly stated-including in this ligation, see D.E. 14, at 10 n.4-it will continue to provide all necessary assistive services upon request. There is thus no warrant to accept Pankey’s speculation that he faces imminent injury based on Aetna’s determination that the proposed “in-person meeting” was not necessary. That Pankey “continues to be a customer” of, and “will continue to have interactions” with, Aetna, FAC ¶¶ 5, 18, 22, is plainly insufficient to support a plausible inference that Aetna will deny Pankey’s future requests for access to a rehabilitation program or to necessary assistive devices. Pankey’s effort to conjure up standing with such bare “speculation” simply does not satisfy the requirements of Article III. Ault v. Walt Disney World Co., 2008 WL 490581, at *2 (M.D. Fla. Feb. 20, 2008) (no standing to pursue injunctive relief where plaintiffs’ intention to visit defendant in future are “speculative”); accord Novak v. Litchfield Cavo, LLP, 2014 WL 7330925, at *4 (N.D. Ill. Dec. 22, 2014). Indeed, it is telling that Pankey admittedly has been an Aetna member for years, yet he identifies only a 2012 proposed remote meeting for which Aetna offered CART services.4 Pankey’s retaliation claims in Counts III and IV similarly do not allege that he faces a “real and immediate” threat that Defendants will further obtain or share his medical records 4 Furthermore, if Aetna were to deny any necessary service affecting Pankey’s benefits, Pankey could pursue remedies under ERISA after exhausting his administrative appeals-a step Pankey has never taken. Case 6:16-cv-01011-RBD-GJK Document 36 Filed 12/15/16 Page 8 of 26 PageID 255 9 without authorization. Shotz, 256 F.3d at 1082. Nor does Pankey plausibly allege imminent harm as a result of Aetna sharing his health information with its third-party peer-review vendor, or as a result of MES Group sharing that information with its contracting physician. Any such injury would be entirely conjectural, not the concrete or imminent harm required by Article III. As the Supreme Court has repeatedly held, “[a]llegations of possible future injury do not satisfy the requirements of Art[icle] III.” Whitmore v. Arkansas, 495 U.S. 149, 158 (1990); Lujan, 504 U.S. at 564 n.2 (allegations of a future harm at some indefinite time cannot be an “actual or imminent injury”); see also Pub. Citizen, Inc. v. Nat’l Highway Traffic Safety Admin., 489 F.3d 1279, 1297 (D.C. Cir. 2007) (“[T]he mere increased risk of some event occurring is utterly abstract-not concrete, direct, real, and palpable.”). The Supreme Court, in fact, has specifically held that abstract conjecture about the potential future actions of third-party wrongdoers is insufficient to establish standing. See Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1150 (2013) (disapproving “standing theories that rest on speculation about the decisions of independent actors”). That is precisely why courts have routinely held that “the risk of future identity theft or fraud” following third-party theft of a plaintiff’s personal information “is too speculative to constitute an injury in fact for purposes of Article III standing.” In re SuperValu, Inc., 2016 WL 81792, at *4 (D. Minn. Jan. 7, 2016); accord Reilly v. Ceridian Corp., 664 F.3d 38, 42 (3d Cir. 2011) (“A plaintiff … lacks standing if his ‘injury’ stems from an indefinite risk of future harms inflicted by unknown third parties.”); In re Zappos.com, Inc., 108 F. Supp. 3d 949, 954-55 (D. Nev. 2015); Green v. eBay, Inc., 2015 WL 2066531, at *3 n.33 (E.D. La. May 4, 2015); Whalen v. Michael Stores Inc., 153 F. Supp. 3d 577, 582-83 (E.D.N.Y. 2015); Strautins v. Trustwave Case 6:16-cv-01011-RBD-GJK Document 36 Filed 12/15/16 Page 9 of 26 PageID 256 10 Holdings, Inc., 27 F. Supp. 3d 871, 876-77 (N.D. Ill. 2014); Storm v. Paytime, Inc., 90 F. Supp. 3d 359, 364-68 (M.D. Pa. 2015). Pankey’s lack of standing to challenge the inadvertent disclosure in this case is even clearer, as he admits that the compact disc “that contained [his] information [was] returned to Aetna and destroyed”-and thus cannot be the basis of future harm. FAC ¶ 39. Because Pankey alleges no “real and immediate” threat of future injury, his amended complaint must be dismissed. Shotz, 256 F.3d at 1082. II. Pankey’s Claims Fail As A Matter Of Law Because Insurers That Administer Employer-Provided Disability Plans And Their Vendors Are Not Places Of Public Accommodation Within The Meaning Of The ADA. Even if this Court has jurisdiction, Pankey’s claims fail because Title III of the ADA, which this Court and other courts in this Circuit have expressly held governs only physical places of public accommodation, does not apply to insurance companies acting as administrators of employer-provided disabilities insurance plans (much less their vendors), and because Defendants independently qualify for the ADA’s “safe harbor” provision. A. The anti-discrimination provisions of Title III of the ADA provide in relevant part that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns … or operates a place of public accommodation.” 42 U.S.C. § 12182(a). To establish liability, a plaintiff who is disabled within the meaning of the ADA must show that the defendant is an entity that owns or operates a place of public accommodation, and that the plaintiff was denied public accommodations by the defendant as a result of his disability. See Steelman v. Florida, 2013 WL 1104746, at *1-2 (M.D. Fla. Feb. 19, 2013), report and recommendation adopted, 2013 Case 6:16-cv-01011-RBD-GJK Document 36 Filed 12/15/16 Page 10 of 26 PageID 257 11 WL 1104256 (M.D. Fla. Mar. 18, 2013). Because Defendants are not a place of public accommodation within the meaning of the ADA, Pankey’s claims fail at the outset. The ADA defines places of “public accommodation” as twelve categories of locations-including any “hotel,” “restaurant,” “theater,” “convention center,” “bakery,” “laundromat,” “museum,” “park,” “school,” and “offices” of various kinds, including “insurance office[s].” 42 U.S.C. § 12181(7). While the business and recreational purposes of these places are distinct, they share one clear, unifying feature: They are all physical locations. Courts thus have explained that “[t]he clear connotation of the words in § 12181(7) is that a public accommodation is a physical place.” Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1014 (6th Cir. 1997) (en banc) (emphasis added); cf. Stevens v. Premier Cruises, Inc., 215 F.3d 1237, 1241 (11th Cir. 2000) (“Because Congress has provided such a comprehensive definition of ‘public accommodation’” in Title III, “the intent of Congress is clear enough.”). That is no less true of an “[o]ffice”-including an “insurance office”- which “in the context of the other terms liste[d] suggest[s] a physical place where services may be obtained and nothing more.” Parker, 121 F.3d at 1014. To interpret Title III to permit public accommodation “to constitute something other than a physical place,” by contrast, would be “to ignore the text of the statute and the principle of noscitur a sociis,” id. (emphasis added), the canon of construction by which a term must be interpreted within the context of the accompanying words to avoid giving “unintended breadth to the Acts of Congress,” Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961). This faithful reading of Title III’s clear text is exactly how the Eleventh Circuit, as well as numerous district courts within the Circuit, have consistently read the statute: “In Case 6:16-cv-01011-RBD-GJK Document 36 Filed 12/15/16 Page 11 of 26 PageID 258 12 interpreting the plain and unambiguous language of the ADA, and its applicable federal regulations, the Eleventh Circuit has recognized Congress’ clear intent that Title III of the ADA governs solely access to physical, concrete places of public accommodation.” Access Now, Inc. v. Sw. Airlines, Co., 227 F. Supp. 2d 1312, 1318 (S.D. Fla. 2002) (citing Rendon v. Valleycrest Prods., Ltd., 294 F.3d 1279, 1283-84 (11th Cir. 2002)). This Court, too, has expressly held that entities that are “service-based, rather than property-based” are not “‘a place of public accommodation’” within the meaning of the ADA. Steelman, 2013 WL 1104746, at *3, report and recommendation adopted, 2013 WL 1104256 (citation omitted). The ADA’s unambiguous language-and this Circuit’s correct reading of it- forecloses the claim that service-based entities, like Defendants, are subject to Title III. And if there were any doubt as to the meaning of “public accommodation,” the agency charged by Congress with administering the ADA also has defined a “place of public accommodation” as a physical facility. The Attorney General has through notice-and-comment rulemaking provided that “[p]lace of public accommodation” means “a facility … whose operations affect commerce and fall within at least one of” the twelve enumerated categories set forth in Title III’s definitions; “facility,” in turn, means “all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located.” 28 C.F.R. § 36.104 (emphases added). The Attorney General’s reasonable reading of the statute-which as “an exercise of [general rulemaking] authority within the agency’s substantive field” merits controlling Chevron Case 6:16-cv-01011-RBD-GJK Document 36 Filed 12/15/16 Page 12 of 26 PageID 259 13 deference, City of Arlington v. FCC, 133 S. Ct. 1863, 1874 (2013)-confirms that Title III does not refer to public accommodations outside the physical structure of an office. B. Pankey’s claims against Defendants-which in their capacity as administrators of Pankey’s employer-provided disabilities plan are service-based entities not subject to Title III-thus necessarily fail. That conclusion accords with numerous courts of appeals that have expressly held that Title III does not apply to insurers when they act as administrators of employer-provided plans. See, e.g., Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114-15 (9th Cir. 2000) (holding that the ADA applies only to physical structures and does not govern the contents of an insurance policy offered and accessed through an employer); Ford v. Schering-Plough Corp., 145 F.3d 601, 612-13 (3d Cir. 1998) (same); Parker, 121 F.3d at 1011-14 (same).5 As these decisions have explained, the “terms of a contract that the insurer markets through an employe[r]”-and a fortiori the administration of that contract-are “not what Congress addressed in the public accommodations provisions,” which cover only physical locations. Weyer, 198 F.3d at 1114. For that reason, “an insurance company administering an employer-provided disability policy is not a ‘place of public accommodation’ under Title III.” Id. at 1115; see also Ford, 145 F.3d at 612-13 (“Since [plaintiff] received her disability benefits via her employment …, she had no nexus to MetLife’s ‘insurance office’ and thus was not discriminated against in connection with a 5 Prior to Weyer, Ford, and Parker, the First Circuit had held that Title III covers the activities of insurers even where physical structures are not involved. See Carparts Distribution Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, 37 F.3d 12 (1st Cir. 1994). But as these later cases demonstrated, “the First Circuit failed to read the examples of public accommodations that piqued the First Circuit’s interest in the context of the other examples of public accommodations.” Ford, 145 F.3d at 614. “The litany of terms, including ‘auditorium,’ ‘bakery,’ ‘laundromat,’ ‘museum,’ ‘park,’ ‘nursery,’ ‘food bank,’ and ‘gymnasiu[m]’ refer to places with resources utilized by physical access.” Id. (quoting 42 U.S.C. § 12181(7)(D)-(F), (H)-(L)). Case 6:16-cv-01011-RBD-GJK Document 36 Filed 12/15/16 Page 13 of 26 PageID 260 14 public accommodation.”); Parker, 121 F.3d at 1011 (“[Plaintiff] obtained her benefits through her employer. There is, thus, no nexus between the disparity in benefits and the services which MetLife offers to the public from its insurance office.”). Indeed, the disability benefits offered through employment if anything constitute “part of the terms and conditions of … employment,” which “are covered under Title I [of the ADA], not Title III.” Ford, 145 F.3d at 612 (emphasis added); see also S. Rep. No. 101-116, at 156 (1989) (“Title III is not intended to govern any terms or conditions of employment by providers of public accommodations or potential places of employment; employment practices are governed by title I of this legislation.”); H.R. Rep. No. 101-485, pt. 2, at 372 (1990) (same). Nor does Title III “address the terms of the [long-term disabilities] policies” that insurers sell. Weyer, 198 F.3d at 1115. Title III prohibits discrimination in the enjoyment of “the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” 42 U.S.C. § 12182(a). The “ordinary meaning of this language is that whatever goods or services the place provides, it cannot discriminate on the basis of disability in providing enjoyment of those goods and services.” Weyer, 198 F.3d at 1115. This “does not require provision of different goods or services, just nondiscriminatory enjoyment of those that are provided.” Id. Thus, “an insurance office must be physically accessible to the disabled but need not provide insurance that treats the disabled equally with the non-disabled.” Ford, 145 F.3d at 613; see also Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557, 563 (7th Cir. 1999) (Title III “does not require a seller to alter his product to make it equally valuable to the disabled and to the nondisabled, even if the product is insurance”). Although the Eleventh Circuit has not directly addressed the ADA’s application in the Case 6:16-cv-01011-RBD-GJK Document 36 Filed 12/15/16 Page 14 of 26 PageID 261 15 context of employer-provided insurance, it has explained that Weyer, Ford, and Parker all “indicate that, to the extent that a plaintiff intends to raise a claim of disability discrimination based on the kind of insurance offered, the plaintiff must demonstrate that the policy was offered to the plaintiff directly by the insurance company and was connected with its offices, as opposed to its being a privilege provided by the plaintiff’s employer.” Rendon, 294 F.3d at 1284 n.8 (emphasis added). At least one district court in this Circuit, moreover, has concluded under virtually identical circumstances as here that the ADA does not apply to insurance companies in their capacity as administrators of employer-provided benefits plans. See Petrano v. Nationwide Mut. Fire Ins. Co., 2013 WL 1325045 (N.D. Fla. Jan. 24, 2013), report and recommendation adopted, 2013 WL 1325030 (N.D. Fla. Mar. 27, 2013), aff’d, 590 F. App’x 927 (11th Cir. 2014), cert. denied, 136 S. Ct. 327 (2015). In Petrano, disability-plan beneficiaries sued an insurer for failure to provide “‘electronic communications access for all written and spoken communications …, as well as a specifically trained Autism language translator, interpreter, and transcriber … at all points of contact, interaction, and determinations’” in the insurer’s administration of a benefits claim following an automobile accident. 2013 WL 1325045, at *6. Because the beneficiaries “made no allegations that they are unable to access the physical structure of [defendant’s] offices,” and “made no allegations that there is a ‘nexus’ between the complained-of activity and the physical structure,” the court held that Title III did not govern the insurer’s administration of benefits. Id. at *8. In this case, as in Petrano, Pankey does not allege that Defendants denied him access to their offices, or to any physical place of public accommodation. Nor does Pankey allege Case 6:16-cv-01011-RBD-GJK Document 36 Filed 12/15/16 Page 15 of 26 PageID 262 16 that there is a nexus between Defendants’ administration of benefits, which Pankey received through his employer, and Defendants’ offices. In the absence of such allegations, Defendants are simply not a “place of public accommodation” within the meaning of Title III-which does not address the terms of long-term disabilities policies in any event. See Weyer, 198 F.3d at 1114-15; Ford, 145 F.3d at 612-13; Parker, 121 F.3d at 1011-14. Pankey’s ADA claims against Defendants therefore fail as a matter of law. C. Finally, even if the ADA could apply to administrators of employer-provided disability plans, Defendants independently qualify for the “safe harbor” provision located in section 501(c) of the ADA, 42 U.S.C. § 12201(c). That section provides that Title III “shall not be construed to prohibit or restrict” the administration of “the terms of a bona fide benefit plan,” so long as the exemption is not “used as a subterfuge to evade the purposes of” the ADA. Id. As then-Judge Alito explained in his concurrence in Ford, under the ADA’s safe- harbor provision, a plaintiff “c[an]not successfully challenge the defendants’ insurance plan unless [h]e c[an] show that it was intended to serve the purpose of discriminating in some non-insurance-benefit aspect of h[is] relationship with the defendants.” Ford, 145 F.3d at 615 (Alito, J., concurring). The employee “‘bears the burden’” of proving this discriminatory “‘specific intent.’” Id. (quoting Pub. Emps. Ret. Sys. of Ohio v. Betts, 492 U.S. 158, 181 (1989) (addressing an analogous safe-harbor provision in the Age Discrimination in Employment Act)). Because Pankey’s “complaint contains no such allegation” that Defendants intended to discriminate against him in a “non-insurance-benefit aspect,” his claims are “eas[ily]” dispatched under the ADA’s safe-harbor provision. Id. Case 6:16-cv-01011-RBD-GJK Document 36 Filed 12/15/16 Page 16 of 26 PageID 263 17 III. ERISA Supplies The Exclusive Remedy. Congress’s intent that the ADA not apply to insurance companies acting as administrators of employer-provided disabilities plans is unsurprising: Congress intended that ERISA be the exclusive vehicle for relief when an ERISA-plan beneficiary challenges a provider’s administration of his ERISA benefits. While this Court recognized in its order dismissing Pankey’s original complaint that ERISA’s express-preemption provision “is limited to state laws,” Order 4 (citing 29 U.S.C. § 1144(d)), a cause of action under one federal statute can nevertheless displace a potential cause of action under another where, as here, Congress intended the two to be mutually exclusive. Cf. POM Wonderful LLC v. Coca- Cola Co., 134 S. Ct. 2228, 2236 (2014) (“In pre-emption cases, the question is whether state law is pre-empted by a federal statute. … This case, however, concerns the alleged preclusion of a cause of action under one federal statute by the provisions of another federal statute.”). At bottom, Pankey asserts that Defendants denied him the “service” of “being evaluated for and participating in rehabilitation programs,” FAC ¶¶ 9, 18, 44-a function governed exclusively by ERISA. Pankey cannot use the ADA to circumvent ERISA’s exclusive review procedures or dictate the timing and administration of his benefits. ERISA’s “principal function [is] to ‘protect contractually defined [ERISA] benefits.’” US Airways, Inc. v. McCutchen, 133 S. Ct. 1537, 1548 (2013) (quoting Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 148 (1985)). To this end, ERISA’s enforcement provisions authorize civil actions “by a participant or beneficiary” in an ERISA plan “to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” 29 U.S.C. § 1132(a). This Case 6:16-cv-01011-RBD-GJK Document 36 Filed 12/15/16 Page 17 of 26 PageID 264 18 integrated enforcement mechanism is “essential to accomplish Congress’ purpose of creating a comprehensive statute for the regulation of employee benefit plans.” Aetna Health Inc. v. Davila, 542 U.S. 200, 208 (2004). ERISA’s comprehensive civil enforcement provisions “‘provide strong evidence that Congress did not intend to authorize other remedies.’” Davila, 542 U.S. at 209 (citation omitted). Congress’s “‘policy choices reflected in the inclusion of certain remedies and the exclusion of others under [ERISA] would be completely undermined if ERISA-plan participants and beneficiaries were free to obtain remedies’” through other founts of law. Id. at 208-09 (citation omitted). Where an “ERISA-plan participan[t] and beneficiar[y] assert[s] improper processing of a claim for benefits,” in short, ERISA’s civil enforcement provisions are “the exclusive vehicle” for relief. Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 52 (1987); Russell, 473 U.S. at 146-48 (ERISA sets forth sole remedy for allegedly “improper or untimely processing of benefit claims” under an ERISA plan). Courts have thus long held that ERISA-plan beneficiaries cannot use other federal statutory schemes, including the ADA, as a backdoor to relief predicated on allegations of improper administration of ERISA benefits. For instance, in Potter v. Xerox Corp., the Second Circuit rejected a claim under the ADA that a person had “been wrongly denied long term disability benefits” because “the ADA is not the proper vehicle for pursuing such a claim,” which “‘is more in the nature of a claim for benefits under [ERISA].’” 1 F. App’x 34, 36 (2d Cir. 2001). Similarly, in Mash v. Xerox Corp., the court rejected the plaintiff’s ADA claims regarding the administration of his benefits, recognizing that the plaintiff’s “true dispute is with [defendant’s] decision that [plaintiff] no longer qualified for long term Case 6:16-cv-01011-RBD-GJK Document 36 Filed 12/15/16 Page 18 of 26 PageID 265 19 disability benefits,” the “remedy [for which] would have been found under ERISA rather than the ADA.” 2000 WL 1728250, at *14 (D. Del. Apr. 11, 2000). Potter and Mash are not predicated on ERISA’s express-preemption provision, but rather recognize that ERISA’s exclusive civil enforcement provisions necessarily preclude ERISA-benefits claims brought under other statutory frameworks. If a plaintiff could transform an ERISA dispute into an ADA claim simply by asserting that he or she is disabled, “virtually every[thing] … could be transformed into an ADA claim.” Petrano, 2013 WL 1325045, at *9. Here, Pankey’s claims arise from the administration of his ERISA benefits plan-as he has admitted elsewhere. D.E. 32-1, at 2. Further, ERISA’s civil enforcement provisions would supply an exclusive remedy should Pankey be denied benefits in the future-a remedy that cannot be displaced or dictated by a prospective injunction under the ADA. In short, the ADA does not apply on its plain terms, and Pankey must bring any claims under ERISA. IV. Pankey Fails To State A Plausible Claim To Relief. As set forth above, Pankey’s ADA claims are plagued by numerous incurable jurisdictional and legal defects and should be dismissed with prejudice. But even considered on its own terms, the amended complaint offers only “‘naked assertion[s]’” and mere “‘labels and conclusions’” that fail to state a plausible claim to relief. Iqbal, 556 U.S. at 678. A. The Amended Complaint Does Not Allege Plausible Discrimination Claims. Title III prohibits discrimination “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases … or operates a place of public accommodation.” 42 U.S.C. § 12182(a); see also Schiavo ex rel. Schindler v. Schiavo, Case 6:16-cv-01011-RBD-GJK Document 36 Filed 12/15/16 Page 19 of 26 PageID 266 20 358 F. Supp. 2d 1161, 1165 (M.D. Fla. 2005) (describing elements of Title III ADA claims). Even if Aetna were a place of public accommodation in its capacity as an administrator of employer-provided benefits (and it is not, see supra Part II), Pankey’s discrimination claims are not plausible because he alleges nothing to support the notion that he was discriminated against in the “full and equal enjoyment” of Aetna’s services “on the basis of” his disability. In Count I, Pankey alleges that Aetna violated Title III’s anti-discrimination provisions by denying him “the service of being evaluated for and participating in rehabilitation programs” because Aetna did not conduct an in-person meeting with him. FAC ¶¶ 42-44. As an initial matter, there is no plausible allegation that Aetna has a practice of conducting in-person meetings with any ERISA beneficiaries seeking a rehabilitation program. To the contrary, in the same email exchange referenced in the amended complaint, see id. ¶ 12, Aetna plainly informed Pankey that it was exploring either a meeting “onsite at your home or what is needed with regard to the remote CART Services.” Ex. 2 at 10 (emphases added). Nor does Pankey allege that his benefits were affected in any way by the 2012 incident, or that an onsite CART meeting-as opposed to a remote CART meeting or other forms of communication-was necessary to administer Pankey’s benefits. These omissions doom Pankey’s discrimination claim. See 42 U.S.C. § 12182(b)(1)(A)(i) (defining discrimination as “a denial of the opportunity of the individual … to participate in or benefit from” an entity’s services). In any event, the amended complaint refutes any notion that Aetna is failing to allow Pankey to participate in a rehabilitation program-let alone “on the basis of” his disability. 42 U.S.C. § 12182(a). To the contrary, Pankey alleges that Aetna offered, and he accepted, Case 6:16-cv-01011-RBD-GJK Document 36 Filed 12/15/16 Page 20 of 26 PageID 267 21 “a conference call with CART” to discuss his rehabilitation plan. FAC ¶ 13. The email exchange on which the amended complaint relies (but misleadingly excerpts) shows that Pankey responded to Aetna’s unequivocal offer of CART services for the rehabilitation meeting with abusive accusations and threats of the type that Pankey has leveled at Aetna from the start, as well as a demand that Aetna “increase my monthly benefit on the date of our conference call.” Ex. 1 at 3.6 Accordingly, the amended complaint shows that Aetna cancelled the proposed CART-assisted meeting both because it was unnecessary-Pankey does not allege he is improperly being denied benefits-and because Aetna began to have “concerns” that he was “attempting to subvert the rehab[ilitation] process”-a cause governed by ERISA and untethered to his disability. FAC ¶ 11. Once Aetna reasonably determined that it would “be handling [Pankey’s] claim in-house,” id. ¶ 14, it cannot have been discrimination “on the basis of disability” to (allegedly) fail to provide CART services for a meeting that never took place, especially while Aetna continued to administer his claim without interruption. See Daw v. Cowan, 2013 WL 5838683, at *7 (N.D. Fla. Oct. 30, 2013) (dismissing ADA claim where plaintiff “failed to allege facts demonstrating a clear causal connection between Defendants’ actions and her disability”); see also Foster, 2012 WL 1415499, at *3 (claim is not plausible if “the ‘more likely explanations’” for the alleged conduct “involve lawful, non- actionable behavior”). Pankey also does not plausibly allege that Aetna denied him “full and equal enjoyment” of a rehabilitation program. Indeed, Pankey alleges that Aetna committed 6 This exchange was not the first time that Aetna’s attempts to discuss ERISA benefit payments with Pankey resulted in him making litigation threats, which preceded his July 2012 request for CART services. See Ex. 3. Case 6:16-cv-01011-RBD-GJK Document 36 Filed 12/15/16 Page 21 of 26 PageID 268 22 to administer his claim “in-house,” FAC ¶ 14, and nothing in the amended complaint indicates that Aetna has been unresponsive either before or after the proposed meeting. In Count II, Pankey asserts that Aetna discriminates against him by supposedly “issuing a directive that no adaptive devices be provided to him,” FAC ¶¶ 45-47, but that assertion, too, is wholly unfounded. The “directive” is a blatant misreading of an internal note of “Kristyn Byrd, Senior Disability Risk Manager,” in which persons named “RMD DR. SNYDER AND RON MARTIN, SDCC” apparently “AGREED TO REFER TO VOC FOR TSA/LMA BASED ON DX OF SEVERE BILATERAL SENSORINEURAL HEARING LOSS. NO ADAPTIVE DEVICES. CLAIMANT HAS THE ABILITY TO COMMUNICATE EFFECTIVELY THROUGH EMAIL, TEXT, WRITING, AND READING LIPS.” Id. ¶ 20. On its face, the note clearly relates to a discussion of the nature of Pankey’s disability (hearing loss, for which he utilized no adaptive devices) along with a discussion of the vocational benefits to which Pankey is entitled-a textbook ERISA determination entered in Aetna’s “claim notes system,” id.-rather than a directive on how Aetna will interact with Pankey. Indeed, there is no plausible allegation that Aetna denied any request for adaptive or assistive devices, and the records on which the complaint relies show otherwise. See Ex. 1; Ex. 2. Pankey thus fails to allege how Aetna denied him the “full and equal enjoyment” of its services “on the basis of” his disability. 42 U.S.C. § 12182(a); see also, e.g., Biro, 2013 WL 5487032, at *3. Nor is there any allegation that Aetna’s alleged failure to provide assistive services in any way affected the provision of Pankey’s benefits. See 42 U.S.C. § 12182(b)(2)(A)(iii). Without such allegations, Pankey’s discrimination claims are the kind of “unadorned, the-defendant-unlawfully-harmed-me Case 6:16-cv-01011-RBD-GJK Document 36 Filed 12/15/16 Page 22 of 26 PageID 269 23 accusation[s]” that cannot support a plausible claim to relief. Iqbal, 556 U.S. at 678; see Allah El v. Avesta Homes, LLC, 520 F. App’x 806, 808 (11th Cir. 2013) (“Legal conclusions must be supported by factual allegations, and pleadings that merely contain conclusions do not demonstrate sufficient grounds for relief.”). B. The Amended Complaint Does Not Allege Plausible Retaliation Claims. Title V’s anti-retaliation provision prohibits discrimination “against any individual because such individual has opposed any act or practice made unlawful by this chapter” or “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a); see also Washington v. Sch. Bd. of Hillsborough Cnty., 2009 WL 4042938, at *6 (M.D. Fla. Nov. 23, 2009) (describing elements of a Title V ADA claim). Pankey’s retaliation claims fail because he does not plausibly allege that he suffered any adverse action within the meaning of the ADA, much less that any such action was as a result of exercising a right protected under the ADA. In Counts III and IV, Pankey alleges that Aetna “retaliated” against him for filing an ADA complaint with the Department of Justice by “disclosing his protected health information” to MES Group, which in turn “retaliated” by providing that information to a physician in the ordinary course of administering Pankey’s benefits. FAC ¶¶ 48-50, 51-53. Although Pankey claimed in his original complaint that such disclosures violated the standards of care established by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), his amended complaint attempts to downplay its reliance on HIPAA- presumably because Defendants demonstrated in their prior motion to dismiss that HIPAA creates no private cause of action. See D.E. 14, at 18-19. Pankey’s failure to allege a Case 6:16-cv-01011-RBD-GJK Document 36 Filed 12/15/16 Page 23 of 26 PageID 270 24 violation of HIPAA’s standard of care, however, cannot save his retaliation claims. The reason Pankey’s health information is confidential is because of HIPAA. Congress, however, expressly declined to include in HIPAA a private cause of action for persons aggrieved by the allegedly improper disclosure of medical information. See Sneed v. Pan Am. Hosp., 370 F. App’x 47, 50 (11th Cir. 2010); Crawford v. City of Tampa, 397 F. App’x 621, 623 (11th Cir. 2010); see generally Dominic J. v. Wy. Valley W. High Sch., 362 F. Supp. 2d 560, 573 (M.D. Pa. 2005) (“No federal court reviewing the matter has ever found that Congress intended HIPAA to create a private right of action.”). As numerous courts have held, to permit disclosure-of-information claims under the ADA would thus thwart Congress’s intent to preclude a private cause of action for such claims. For instance, in a case in which a plaintiff alleged that a defendant did not “properly secur[e] his medical information in violation of [HIPAA] and the ADA,” one federal district court held that a disclosure-of-information claim could not be sustained absent evidence that the defendant violated independent provisions of the ADA or regulations promulgated thereunder. Coleman v. City of Tucson, 2008 WL 5134346, at *7 (D. Ariz. Dec. 5, 2008); accord Easter v. Transp. Serv. Co., 2007 WL 4260809, at *5 (E.D. Tenn. Nov. 30, 2007). So, too, here. Pankey may not wrap his disclosure-of-information claims in the veneer of the ADA to create causes of actions that do not otherwise exist. A contrary view would invite the approach under which “virtually every[thing] … could be transformed into an ADA claim” that courts in this Circuit have flatly rejected. Petrano, 2013 WL 1325045, at *9. Pankey’s retaliation claims fail in any event because there is no plausible factual allegation that Defendants obtained or shared his personal health information because he Case 6:16-cv-01011-RBD-GJK Document 36 Filed 12/15/16 Page 24 of 26 PageID 271 25 filed an ADA complaint, or for any other purpose not directly linked to his ERISA-governed disability benefits administration. See Washington, 2009 WL 4042938, at *6. Long-term disability insurers and their contractors routinely share the protected information of beneficiaries in the course of administering benefits. Pankey does not deny that Aetna discloses such records to vendors for “independent medical examinations and peer reviews” (FAC ¶ 6) in the ordinary course of administering any benefits claim. The fact that Defendants continued to administer and pay his benefits claim after learning of his administrative complaint does not state a claim for ADA retaliation; if anything, it shows that Defendants did not retaliate. Nor is there any plausible factual allegation that Aetna’s inadvertent disclosure of Pankey’s summarized personal information to another member was anything other than accidental. FAC ¶¶ 38-40. Pankey in fact admits that Aetna voluntarily notified him of the accidental disclosure, reported that the records were “destroyed in line with Defendant Aetna’s privacy and security protocols,” and offered “free credit monitoring for one year as a precaution.” Id. ¶¶ 38, 39. No plausible reading of these allegations would support an ADA claim for retaliation. Rather, “given more likely explanations, they do not plausibly establish this purpose.” Iqbal, 556 U.S. at 681. Pankey’s retaliation claims accordingly fail to state a claim to relief, and must be dismissed. CONCLUSION For these reasons, the amended complaint should be dismissed with prejudice. Case 6:16-cv-01011-RBD-GJK Document 36 Filed 12/15/16 Page 25 of 26 PageID 272 26 Dated: December 15, 2016 Respectfully submitted, /s/ Rene Gonzalez-LLorens Jonathan M. Fordin, Esq. Florida Bar No. 371637 jfordin@shutts.com Rene Gonzalez-Llorens, Esq. Florida Bar No. 53790 rgl@shutts.com SHUTTS & BOWEN LLP 200 South Biscayne Blvd. Suite 4100 Miami, Florida 33131 Telephone: (305) 347-7337 Fax: (305) 347-7837 Attorneys for Defendants Aetna Life Insurance Company and MES Group, Inc. CERTIFICATE OF SERVICE I hereby certify that on December 15, 2016, the foregoing was electronically filed with the Clerk of Court using the CM/ECF system, which will send a notice of electronic filing to the parties of record. I also certify that I have sent the foregoing via regular and electronic mail to: Judson C. Pankey, 417 West Minnesota Avenue, DeLand, FL 32720; judsonpankey@gmail.com. /s/ Rene Gonzalez-LLorens RENE GONZALEZ-LLORENS Case 6:16-cv-01011-RBD-GJK Document 36 Filed 12/15/16 Page 26 of 26 PageID 273 EXHIBIT 1 Case 6:16-cv-01011-RBD-GJK Document 36-1 Filed 12/15/16 Page 1 of 24 PageID 274 2014-04-11 8:46 AM AETNA -> 18557331262 Page 40 of 68 c~ i I Judson Pankey < RE: CART 1 message Mcvetty, Michael R < McvettyM@aetna.com> To: Judson Pankey Cc: "Mcvetty, Michael R" Judson, Fri, Nov 9, 2012 at 2:55 PM We have recently had a conference with our vocational and claims departments. We will be handling your claim in-house for the time being and will not be employing the CART services at this time. Thank you for your willingness to work with us. A quick review of your claim shows that we're missing the date of birth of your youngest child. Please let me know this date so that I can cease the SS offset at the appropriate time. Thank you and best regards, Mike McVetty From: Judson Pankey ] Sent: Friday, November 02, 2012 8:34 AM To: Mcvetty, Michael R Subject: Re: CART Mr. Mcvetty: We have been coordinating for the past six months on the meeting that Aetna originally requested on June 27. 2012. We have had more than two dozen e-mail exchanges regarding coordination of the meeting, which as recently as October 30, Aetna represented as a meeting. Only after I asked how many participants Aetna demanded that I accommodate at my personal residence, did Aetna clarify that a meeting is no longer proposed, only a chat conference call. Aetna's intentional efforts to confuse an already challenging communication situation is reprehensible. I am available for Aetna's chat conference call from 9 AM to 11 AM on November 14. 15, or 16. only if the CART operator can provide the record discussed below. Based on my past interaction with Aetna and Aetna's consultants, and their defamatory comments, subterfuge, and outright misrepresentations, all as detailed in their reports and written notes contained 2118/2014 So1 Case 6:16-cv-01011-RBD-GJK Document 36-1 Filed 12/15/16 Page 2 of 24 PageID 275 2014-04-11 8:46 AM AETNA -> 18557331262 Page 41 of 68 within Aetna's internal files, I must have a verbatim record of our chat conversation from the CART operator to ensure an accurate representation of our chat conversation. Please confirm that Aetna's chosen CART operator can provide a digital file of our chat conversation at the conclusion of our chat call. If the CART operator is unable to provide a verbatim record of the chat call, then I will need time to arrange for and invite another participant into the chat call who will compile a verbatim record of our chat call. Lastly, per your e-mail below, Aetna states that my participation in the "vocational assessment" is a requirement of the Policy. Presuming that you and Ms. Farland are not physicians or licensed health care practitioners, the Policy requires that I participate in an Approved Rehabilitation Program, which I have requested from Aetna numerous times. Further, the Policy specifically defines, in the Definitions section, the components of an Approved Rehabilitation Program, which includes "vocational testing". As you are further aware, the Policy requires that Aetna increase my monthly benefit payable while I am actively --...i.:-:-.-4.; __ : ........... l\.,. ___ ,,_...1 n-1.-.-1.-..:1:~ ..... -.: ....... n ... ,..,............... /\,..,..,...,..,..;;.,.,..i.,, t ,....,,..._,......, .. /\,.... ..... .., 1-..... '"""''°'"'-"'"',... ......... --...-.. ... +hi., J.J'dlll\.-ltJClllll~ Ill Oji l"'\P}JfUVt.::U "t::'llClUlllLClUUll llU~!Ctlll. F""'\\J"-'Ul\..IUl~lJ, I ~AjJC"-'~ f""\t;; wrote: Mr. Pankey. The purpose of the CART is to alleviate the pressure and costs of gathering all involved parties to one place. There will be you, me, Ms. Farland and the CART operator involved in a vocational assessment as is required by the policy. Best regards, Mike McVetty 866-326-1380 From: Judson Pankey Sent: Wednesday, October 31, 2012 12:45 PM To: Mcvetty, Michael R Subject: Re: CART Mr. Mcvetty. 2/ 18/2014 Case 6:16-cv-01011-RBD-GJK Document 36-1 Filed 12/15/16 Page 3 of 24 PageID 276 2014-04-11 8:46 AM AETNA -> 18557331262 Page 42 of 68 With regards to the meeting we are trying to schedule below, how many Aetna representatives/consultants will be physically attending the meeting, Le,, not calling in, but meeting with me in person? On Wed, Oct 31, 2012 al 11: 12 AM, Mcvetty, Michael R wrote: The purpose ofthe CART is to allow you to stay in your home and communicate with Aetna so there is no need to find a different venue, As you have previously confirmed, you have a computer at home, As you have demonstrated through the fact that we are currently e-mailing each other, you also have the capacity e-mail. We can take as long as you'd like for the meeting. We have no maximum time limits. An agenda and a list of participants will be provided once we have a confirmed date, Are you available on the 7'" of November at2:00pm? Please see the CART overview below, Remote CART: CART provider in a different location than the consumer[s] Internet must be available Consumer views CART on their own computer or handheld device. (May also be projected for a group.) Remote CART is the preferred method for teleconferences, for example, We provide remote CART services for groups like the Fluri 18557331262 Page 43 of 68 From: Judson Pankey Sent: Wednesday, October 31, 2012 10:48 AM To: Mcvetty, Michael R Subject: Re: CART Mr. McVetty: I am in receipt of your e-mail below. Your e-mail did not indicate the location of the meeting. I need the location so we can both coordinate travel. With regards to the meeting duration, your e-mail of July 2, 2012, attached hereto, stated Aetna's purpose of the meeting was for both Aetna and I to ask questions. I have many questions with some being very detailed policy/plan questions. I would anticipate my questions taking 45 minutes to an hour for Aetna to answer; hence, it appears the meeting will be a couple of hours in duration With regards to Aetna's demand that I provide a computer and internet connection, Aetna needs to coordinate with the appropriate party at the to-be-agreed-upon meeting venue to ensure an internet connection and computer are available. It is Aetna's responsibli!y under the American's with Disabilities Act to ensure these items are provided since they are apparently necessary (per Aetna) to accommodate my request for CART. Once I receive your suggestion of a meeting location, the agenda, and the list of participants. as previously coordinated between us, then I will be able to fully respond to your inquiry. Sincerely, Judson Pankey On Tue. Oct 30, 2012 at 12:26 PM, Mcvetty, Michael R wrote: Mr. Pankey. Would you be available on Wednesday, November 7'". 2012 at 2 pm for a CART meeting? It should take about an hour to complete. You would need the internet and your own computer. Thank you, Mike McVetty 866-326-1380 This e-mail may contain confidential or privileged information. If you thmk you have received this e-mail 1n error, please advise the sender by reply e-mail and then delete this e-mail immediately. Thank you. Aetna 2/18/2014 'ff LO Case 6:16-cv-01011-RBD-GJK Document 36-1 Filed 12/15/16 Page 5 of 24 PageID 278 2014-04-11 8:46 AM AETNA -> 18557331262 Page 44 of 68 Sincerely, Judson Pankey Sincerely, Judson Pankey Sincerely, Judson Pankey 2118/2014 9!l Case 6:16-cv-01011-RBD-GJK Document 36-1 Filed 12/15/16 Page 6 of 24 PageID 279 EXHIBIT 2 Case 6:16-cv-01011-RBD-GJK Document 36-1 Filed 12/15/16 Page 7 of 24 PageID 280 2014-04-11 8:46 AM AETNA -> 18557331262 Page 6 of 68 G~._.il Judson Pankey < RE: Aetna LTD claim 1 message Mcvetty, Michael R < McvettyM@aetna.com> To: "Judson C. Pankey" Cc: "Farland, Stephanie L" Mr. Pankey, Thank you. Stephanie will be in touch soon. Best regards, Mike McVetty 866-326-1380 From: Judson C. Pankey Sent: Thursday, July 05, 2012 9:21 AM To: Mcvetty, Michael R Cc: Farland, Stephanie L SUbject: Re: Aetna LTD claim Thank you for the clarification. I am available to meet locally with one to two weeKs notice. Sincerely, Judson Pankey Thu, Jul 5, 2012 at 9:31 AM On Jul 3. 2012, at 10:30 AM, "Mcvetty, Michael R" wrote: Mr. Pankey. Case 6:16-cv-01011-RBD-GJK Document 36-1 Filed 12/15/16 Page 8 of 24 PageID 281 2014-04-11 8:46 AM AETNA -> 18557331262 An Approved Rehabilitation Program can't be written until everyone agrees on the program. A full evaluation is required to determine if you're an appropriate candidate for a rehabilitation program A rehabilitation program is written when there are established goals and outcomes once the evaluation is complete. Please let us know when you're available. Best regards, Mike McVetty 866-326-1380 From: Judson C. Pankey Sent: Tuesday, July 03, 2012 9:01 AM To: Mcvetty, Michael R Cc: Farland, Stephanie L Subject: Re: Aetna LTD claim Presuming your efforts, as referenced in your e-mail below, pertain to Aetna's evaluation for my participation in an Approved Rehabilitation Program pursuant to !he Policy, then it makes sense to meet after Aetna completes the written Approved Rehabilitation Program. Please forward me a copy of the aforementioned Program at your earliest convenience. Judson Pankey On Jul 2. 2012. at 3:17 PM, "Mcvetty, Michael R" wrote: Mr. Pankey, Please let us know when we could expect an opportunity to sit down and have a discussion regarding our efforts to help you regain employment. Best regards, Mike McVetty Page 7 of 68 2/ 18/2014 Case 6:16-cv-01011-RBD-GJK Document 36-1 Filed 12/15/16 Page 9 of 24 PageID 282 2014-04-11 8:46 AM AETNA -> 18557331262 866-326-1380 From: Judson Pankey Sent: Monday, July 02, 2012 3:13 PM To: Mcvett:y, Michael R Cc: Farland, Stephanie L Subject: Re: Aetna LTD claim Mr. Mcvetty: Thanks for your e-mail. In response to your questions: - I am not proficient in sign language - I communicate via relay, texting, and e-mail with none being any more effective than the other I look foiw;ird to receiving Aetna's response. Sincerely, Judson Pankey On Mon, Jul 2, 2012 at 11:46 AM, Mcvetty, Michael R wrote: Judson, It's very easy to assign a tone to an e-mail when we'ne not able to see the big pictune or the true intent I get the feeling that you may feel that we're trying to force you to return to work at all costs. That's not the case. We're trying to help you return to work in your own, or any other reasonable occupation, if it's an attainable goal given the obstacles in place. It would benefit you and your family to have you earning a wage commensurate with your experience and obvious capabilities Health insurance and other benefits may also be easier to provide while gainfully employed. Page 8 of 68 2118/2014 11'5 Case 6:16-cv-01011-RBD-GJK Document 36-1 Filed 12/15/16 Page 10 of 24 PageID 283 2014-04-11 8:46 AM AETNA -> 18557331262 Aetna would obviously benefit in that we would either be paying a reduced benefit or no benefit at all. However, we aren't willing to compromise you, your family or our reputation by forcing an unreasonable return to work plan upon you. We're trying to assess your situation to see if there is any way we can help you regain employment either through adaptive devices, re-training, job modification or other resources our vocational rehabilitation consultants can acquire for you. We would like an opportunity to talk with you in a venue in which you'd be comfortable which would also allow us to conference call in to answer any questions you may have and to ask questions we may have. We would need to know the most effective way to communicate with you. Have you become proficient with sign language? Would you like us to provide an interpreter? Would you like a friend or family member to assist in the interview? If so, we would need written permission to allow us to discuss your claim with them. Please let us know what would work best for you. I've cc'd Stephanie Farland as she'll be the one to set up the resources. Thanks, Mike McVetty 1-866-326-1380 This e-mail may contain confidential or privileged information. If you think you have received this e-mail in error, please advise the sender by reply e-mail and then delete this e-mail immediately. Thank you. Aetna Page 9 of 68 2/ 18/2014 71fu Case 6:16-cv-01011-RBD-GJK Document 36-1 Filed 12/15/16 Page 11 of 24 PageID 284 2014-04-11 8:46 AM AETNA -> 18557331262 Page 10 of 68 Judson Pankey < RE: Accommodation Request, Title Ill of the ADA 1 message Mcvetty, Michael R < McvettyM@aetna.com> To: "Judson C. Pankey" Cc: "Farland, Stephanie L" Mr. Pankey, I'm going to defer to Stephanie to make the arrangements. Thank you, Mike McVetty 866-326-1380 -----Original Message--- Frorn: Judson C. Pankey[ Sent Thursday, July 05, 2012 9:37 AM To: Mcvetty, Michael R Cc: Farland, Stephanie L Subject: Accommodation Request, Title Ill of the ADA Mr. Mcvetty: Thu, Jul 5, 2012 at 9:43 AM Pursuant to the Americans with Disabilities Act, I request that CART be provided for our upcoming meeting. This request extends to any additional meetings we may have in the future. Sincerely, Jud$on Pankey This e-mail may contain confidential or privileged information. If you think you have received this e-mail in error, please advise the sender by reply e-mail and then delete this e-mail immediately. Thank you. Aetna 2/18/2014 117 Case 6:16-cv-01011-RBD-GJK Document 36-1 Filed 12/15/16 Page 12 of 24 PageID 285 2014-04-11 8:46 AM AETNA -> 18557331262 Page 11 of 68 c~ i I Judson Pankey RE: Aetna L TO claim 1 message Farland, Stephanie L < FarlandS@aetna.com> Thu, Jul 5, 2012 at 12:28 PM To: "Judson Pankey Cc: "Mcvetty, Michael R" Good Afternoon Mr. Pankey, I wanted to follow up with you and thank you for the information on your relay service. I am also in the process of exploring CART for the meeting. I wanted to find out if you used this service before and if so which company did you use, and it you have not used this before that is okay, I am just working out the details on who can provide that service for you. Thank in advance and I will be in touch soon. Stephanie Farland, tv1.Ed. 1 CRC Vocational Rehabilitation Consultant Aetna Return to Work Solutions5rv1 Program Aetna Disability and Absence Management a farlands@aetna.com 860·2 73·9029 lts about what you can do, not what you cant do From: Mcvetty, Michael R Sent: Tuesday, July 03, 2012 10:25 AM To: Farland, Stephanie L Subject: FW: Aetna LTD claim 211812014 119 Case 6:16-cv-01011-RBD-GJK Document 36-1 Filed 12/15/16 Page 13 of 24 PageID 286 2014-04-11 8:46 AM AETNA -> 18557331262 from: Judson C. Pankey Sent: Tuesday, July 03, 2012 8:47 AM To: Mcvetty, Michael R Subject: Re: Aetna LTD claim I use ip-relay (purple). Www.ip-relay.com Judson Pankey On Jul 2, 2012, at 3:19 PM, "Mcvetty, Michael R" wrote: Mr. Pankey, Please provide the contact information for the relay service you currently utilize. Thank you, Mike McVetty from: Judson Pankey [ Sent: Monday, July 02, 2012 3:13 PM To: Mcvetty, Michael R Cc: Farland, Stephanie L Subject: Re: Aetna LTD claim Mr Mcvetty: Thanks for your e-mail. Page 12 of 68 2/ 18/2014 11'f Case 6:16-cv-01011-RBD-GJK Document 36-1 Filed 12/15/16 Page 14 of 24 PageID 287 2014-04-11 8:46 AM AETNA -> 18557331262 In response to your questions - I am not proficient in sign language - I communicate via relay, texting, and e-mail with none being any more effective than the other I look forward to receiving Aetna's response. Sincereiy, Judson Pankey On Mon, Jul 2, 2012 at 11 :46 AM. Mcvetty, Michael R wrote: Judson. It's very easy to assign a tone to an e-mail when we're not able to see the big picture or the true intent I get the feeling that you may feel that we're trying to force you to return to work at all costs. That's not the case. We're trying to help you return to work in your own, or any other reasonable occupation, if it's an attainable goal given the obstacles in place. It would benefit you and your family to have you earning a wage commensurate with your experience and obvious capabilities. Health insurance and other benefits may also be easier to provide while gainfully employed. Aetna would obviously benefit in that we would either be paying a reduced benefit or no benefit at all. However, we aren't willing to compromise you, your family or our reputation by forcing an unreasonable return to work plan upon you. We're trying to assess your situation to see if there is any way we can help you regain employment either through adaptive devices, re-training, job modification or other resources our vocational rehabilitation consultants can acquire for you. We would like an opportunity to talk with you in a venue in which you'd be comfortable which would also allow us to conference call in to answer any questions you may have and to ask questions we may have. We would need to know the most effective way to communicate with you. Have you become proficient with sign language? Would you like us to provide an interpreter? Would you like a friend or family member to assist in the interview? If so, we would need written permission to allow us to discuss your claim with them. Please let us know what would work best for you. I've cc'd Stephanie Farland as she'll be the one to set up the resources. Page 13 of 68 2118/2014 190 Case 6:16-cv-01011-RBD-GJK Document 36-1 Filed 12/15/16 Page 15 of 24 PageID 288 2014-04-11 8:46 AM AETNA -> 18557331262 Thanks Mike McVetty 1-866-326-1380 This e-mail may contain confidential or privileged information. If you think you have received this e-mail in error. please advise the sender by reply e-mail and then delete this e-mail immediately. Thank you. Aetna Page 14 of 68 2/ 18/2014 "191 Case 6:16-cv-01011-RBD-GJK Document 36-1 Filed 12/15/16 Page 16 of 24 PageID 289 2014-04-11 8:46 AM AETNA -> 18557331262 Page 15 of 68 Judson Pankey < Good Afternoon 1 message Farland, Stephanie L < FarlandS@aetna.com> Wed, Jul 18, 2012 at 1 :50 PM To: "Judson Pankey Cc: "Mcvetty, Michael R" Hi Mr. Pankey, I am in the process of obtaining the information from your relay company you use the CART system Per an email from the company they do provide onsite and remote CART services. I have reached out again to obtain information on what is needed to set someone up onsite at your home or what is needed with regard to the remote CART Services. Once I have all this information set up for you I will reach out to you again with acceptable dates to schedule the meeting. I wanted to reach out to provide an updated information. Stephanie Farland MEd. CRC Vocat1onel Rehabilitation Consultant Aetna Return to WorX Solutions"" P1ogrem Aetna Disability and Absence Management a far/ands@aetna com 860-273-9029 !ts about what you can do. not what you can't do This e-mail may contain confidential or privileged information. lfyou think you have received this e-mail in error, please advise the sender by reply e-mail and then delete this e-mail immediately. Thank you. Aetna .. 2/ 18/2014 19>1. Case 6:16-cv-01011-RBD-GJK Document 36-1 Filed 12/15/16 Page 17 of 24 PageID 290 2014-04-11 8:46 AM AETNA -> 18557331262 Page 16 of 68 c~ ii Judson Pankey < RE: i-relay, CART services 1 message Mcvetty, Michael R < McvettyM@aetna.com> To: Judson Pankey Thank you. From: Judson Pankey Sent: Thursday, August 16, 2012 1 :39 PM To: Mcvetty, Michael R Subject: Re: i-relay, CART services Mr. Mcvetty: Thu, Aug 16, 2012 at 1 :48 PM I have not been Involved in who provides CART on behalf of lhe entity I am requesting it from. Judson Pankey On Tue. Aug 14, 2012at1:18 PM, Mcvetty, Michael R wrote: rve been asked to help ascertain whether or not you've used i-relay for their CART services in the past. !f you haven't used i-relay, have you used anyone else? Thanks f\.-1ike l\Ar.Vetty 207-228--9153 2118/2014 Case 6:16-cv-01011-RBD-GJK Document 36-1 Filed 12/15/16 Page 18 of 24 PageID 291 2014-04-11 8:46 AM AETNA -> 18557331262 Page 17 of 68 This e-mail may contain confidential or privileged information. If you think you have received this e-mail in error, please advise the sender by reply e-mail and then delete this e-mail immediately. Thank you. Aetna Sincerely, Judson Pankey 211812014 1B4 Case 6:16-cv-01011-RBD-GJK Document 36-1 Filed 12/15/16 Page 19 of 24 PageID 292 EXHIBIT 3 Case 6:16-cv-01011-RBD-GJK Document 36-1 Filed 12/15/16 Page 20 of 24 PageID 293 1/11/2014 7:35 AM To: Michael Mcvetty, Aetna From: Judson Pankey Date: June 28. 2012 RE: Claim No. Mr. Mcvetty: AETNA -> 18557331262 Page 13 of 84 Thanks for your e-mail. Please note that was relying upon the definition of Approved Rehabilitation Program shown in the Policy glossary on ~_ge 19, and inc-!udes as its fLrst bullet point, 'Vocational testing'. I disagree with Aetna's assertion that my participating in its 'evaluation' is not actual participation, and thus, is not covered by the 10%, increase in benefit payment. Should Aetna continue to insist on my participation while not increasing my benefit payment per the requirements of the Policy, then I will be left with little choice butto resolve our dispute through other means. I have previously provided Ms. Farland much infonnation about my job with CPH. Further, I understand that she obtained additional information from CPH directly. I am at a loss as to what useful purpose Ms. Farland hopes to serve by having me and my former colleagues at CPH suffer more emotional distress and embarrassment since Aetna knows full well that I would not be able to communicate effectively with my former colleagues, and thus, would be made to look like a fool. Further, Ms. Farland only makes vague references to adaptive equipment that is proposed to be evaluated as part of the Approved Rehabilitation Program. My doctor, the local vocational rehab office, nor I are aware of any adaptive equipment that would compensate for my deafness. As required by the Policy, I will participate in Aetna's approved rehabilitation program. Please orovide me a written copy of the Approved Rehabilitation Program. Judson Pankey On Wed. Jun 27, 2012 at 2:23 PM, Mcvetty, Michael R wrote: Mr. Pankey, Your Plan states: "When Long Term Disability Benefit Eligibility Ends You will no Jonger be considered as disablecl nor eliglble for long term monthly benefits When the first of the following occurs: • The date you no longer meet the LTD test of disability, as determined by Aetna. • The date you are no Jonger under the regular care of a physician. • The date Aetna finds you have withheld infonnation about working, or being able to work. at a reasonable occupatiOn. • The date you fail to provide proof that you meet the l TD test of disability. • The date you refused to be examined by or cooperate with an independent physician or a licensed and certified health care praclitioner, as requested. Aetna nas the right to examine and evaluate any pereon who is the basis of your claim at any reasonable time while your claim is pending or payable. The examination or evaluation will be done at Aetna's expense. I ~8 Case 6:16-cv-01011-RBD-GJK Document 36-1 Filed 12/15/16 Page 21 of 24 PageID 294 ~/11/2014 7:35 AM AETNA -> 18557331262 • The date an independent medical exam report or functional capacity evaluation does not. in Aetna's opinion, confinn that you are disabled. • The date you reach the end of your Maximum Benefit Duration, as shown in the Schedule of BenerJts. • The date you are not receiving effective treatment for alcoholism or drug abuse, if J<>Ur disability is caused (m whole or part) by alcoholism or drug abuse. • The elate you refuse to cooperate with or accept: - Changes to your work site or job process design8d to suit your identifl9d medical limitations; or - Adllplive equipment or devices designed to suit your identified medical limitations; which would allow you to work at your own occupation or a reasonable occupation (if you are receiving benefits for lleing unable to work any reasonsble occupation) and provided that a physician agrees that such changes, adaptive devices or equipment suit your particuiar medicai iimitations. ·· • The date you refuse any treatment recommended by your attending physician that, in Aetna's opinion, would cure, correct or limit your disability. • The date your condition would permit you to: -Wort<; or - Increase the hours you work; or - Increase the number or type of duties you perform in your own occupalion but you refuse to do so. • The date of your death. • ·. The day after Aetna detennines that you can participate in an approved rehabilitation program and you refuse to do so.• It defines Approved Rehabilitation Program as: "Approved Rehabilitatlon Program Aetnahas the right to evaluate you for participation in an approved rehabilitation program. If, in Aetna's judgment, you are able to participate, Aetna may, in its sole discretion require you to partk':ipate in an approved rehabilitation program. The plan will pay for all of the services and supplies, approved in advance by Aetna, you need in connection with participation in the program, except those for which you can be reimbursed by another payer. including government benefits programs. During your active participation in an Aetna approved rehabilitation program, Aetna will lru:rease lhe monthly benefit payable. A 10% increase in the monthly benefit payable (after all applicable reductions for other income benefits) will be paid for up to six consecutive months for each disability, up to a maximum monthly increase Of $500. • At this time we are evaluating you for participation in an approved rehabilitation program. You are not currently participating in an approved rehabilitation program which would afford you the 10% increase in your monthly benefit. As Ms. Farland has indicated, she is requesting that you and your employer assist in the evaluation proC 18557331262 Please confirm that Aetna has increased my monthly benefit payable for my participation in an Aetna approved rehabilitation program, per the Approved Rehabilitation Program section of the Policy, and such increase is retroactive to June. Thanks, Judson Pankey -----··Forwarded message----- From: Judson Pankey Date: Wed, Jun 27, 2012 at 12:54 PM Subject: Re: Hello To: ''Farland, Stephanie L" Cc: "lgardnen@.cphengineers.com" , "Mcvetty, Michael R" Ms. Farland: Please.provide me a copy of Aetna's written Approved Rehabilitation Program pursuant to the Policy. Sincerely. Judson Pankey On Wed, Jun 27, 2012 at 9:02 AM, Farland, Stephanie L wrote: Good Morning Ms. Gardner and Mr. Pankey, As you know I have been evaluating for possible adaptive equipment that could possibly be obtained to assist Mr. Pankey to be able to return to his job with some of the assistance that has been provided to him. I am writing to request a day and time that is convenient for both of you to have an ergonomic specialist come out to evaluate the job and workplace in order to complete research to determine inhere an~ any adaptive equipment measures that can be put in place or not. Once I hear back from you on a day and time and if you could possibly provide a second day, I will send the request to one of our vendors. Thank you in advance and if you have any questions, please do not hesitate to contact me . . fet!la Rt? turn to Irork Solu1ion~ ..... ·., f'ro~ran: . ietna !Jisablfi(r a1ul Ahs-ence .\fa11age111enr I (oO Page 15 of 84 Case 6:16-cv-01011-RBD-GJK Document 36-1 Filed 12/15/16 Page 23 of 24 PageID 296 4/11/2014 7:35 AM AETNA -> 18557331262 t'arlands' (t'.ae lna. con: 860-273-9021/ its ahou1 H·hat you can tin. 1101 irilot you can't do This e-mail may contain confidential or privileged information. If you think you have received this e-mail in error, please advise the sender by reply e-mail and then delete this e-mail immediately. Thank you. Aetna Sincerely . . 1 udson Pankey .,. . ~·)inccrc!y. Judson P::.H1ke\' Sincerely, Judson Pankey f &I Page 16 of 84 Case 6:16-cv-01011-RBD-GJK Document 36-1 Filed 12/15/16 Page 24 of 24 PageID 297