The opinion of the court was delivered by: David M. Cohen United States Magistrate Judge
RECOMMENDED DECISION ON DEFENDANTS' MOTIONS TO DISMISS
This action is one of two lawsuits now pending in this court involving allegations that defendants Bath Iron Works Corporation ("BIW") and Fortis Benefits Insurance Corporation ("Fortis") violated the Americans with Disabilities Act ("ADA") in connection with certain disability benefits provided to the plaintiff, a BIW employee who has rapidly cycling bipolar disorder. In EEOC v. Bath Iron Works Corp., et al. (Docket No. 97-355-P-H), the Equal Employment Opportunity Commission ("EEOC") alleges that BIW and Fortis violated the rights secured to the plaintiff under Title I of the ADA, which concerns employment discrimination. The plaintiff has brought the instant action individually, invoking Title I of the ADA as well as Title III of the statute, governing public accommodations, and the provisions of the Maine Human Rights Act that are analogous to the ADA.
The defendants have each moved pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the plaintiff's claim under Title I of the ADA (Docket Nos. 2-3). Their position is that the plaintiff's exclusive pathway to legal redress under Title I is to intervene in the separate action filed by the EEOC, and that the Title I claim is subject to dismissal because the EEOC has not issued a "right to sue" letter to the plaintiff as required by the ADA. I recommend that the defendants' motion be granted.
"When evaluating a motion to dismiss under Rule 12(b)(6), [the court] take[s] the well-pleaded facts as they appear in the complaint, extending the plaintiff every reasonable inference in his favor." Pihl v. Massachusetts Dep't of Educ., 9 F.3d 184, 187 (1st Cir. 1993). The defendant is entitled to dismissal for failure to state a claim "only if it clearly appears, according to the facts alleged, that the plaintiff cannot recover on any viable theory." Correa-Martinez v. Arrillaga- Belendez, 903 F.2d 49, 52 (1st Cir. 1990); see also Jackson v. Faber, 834 F. Supp. 471, 473 (D. Me. 1993).
Title I of the ADA concerns discrimination against "a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). The "powers, remedies, and procedures" available for the enforcement of the employment discrimination provisions are those set out in Title VII of the Civil Rights Act. 42 U.S.C. § 12117(a) (referring to Title VII provisions condified as 42 U.S.C. §§ 2000e-4 to 2000e-6 and 2000e-8 to 2000e-9). ...