Rouse v. Springer , 848 F. Supp. 2d 4 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
RALPH ROUSE, JR., )
)
Plaintiff, )
)
v. ) Civil Action No. 06-2088 (RWR)
)
JOHN BERRY, et al., )
)
Defendants. )
______________________________)
MEMORANDUM OPINION
Plaintiff Ralph Rouse, Jr. brings suit against the Director
of the Office of Personnel Management (“OPM”), and Long Term
Care Partners, LLC (“LTC Partners”), alleging that they engaged
in disability discrimination in violation of § 501 of the
Rehabilitation Act (“the Act”), 29 U.S.C. § 791, when Rouse was
denied standard coverage under the Federal Long Term Care
Insurance Program (“FLTCIP”).1 The parties have filed cross-
motions for summary judgment. No material facts are in dispute
and Rouse has failed to carry his burden to establish a triable
issue regarding whether the defendants discriminated against him
in a non-fringe-benefit aspect of his employment. The
1
Rouse’s claim under § 504 of the Act, which prohibits a
federal agency or a federally funded program from denying
benefits to handicapped individuals solely on the basis of their
disability, was dismissed earlier.
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defendants therefore are entitled to judgment as a matter of
law.
BACKGROUND
The second amended complaint and the summary judgment
filings set forth the following facts as to which there is no
genuine dispute. Plaintiff Rouse is an employee of the
Department of Health and Human Services who applied for long
term care insurance through the FLTCIP. (Second Am. Compl.
¶¶ 6, 13, 15.) Rouse has paraplegia and uses a push wheelchair
to assist with mobility. (Id. ¶¶ 11-12.) He revealed this use
in his FLTCIP application. (Id. ¶ 16.) The application form
stated that an affirmative response to the question of whether
he used a medical device, aid, or treatment, such as a
wheelchair, would make him ineligible “for any of the insurance
options under this program shown in Part F of [the] form” (id.),
which included standard coverage. Rouse submitted his
application and later received a letter from LTC Partners
denying him standard coverage because of his wheelchair use.
(Id. ¶¶ 15, 17; Fed. Def.’s Mot. Summ. J., Stmt. of Material
Facts Not in Dispute (“Fed. Def.’s Stmt.”) ¶ 49.) LTC Partners
offered Rouse its alternative coverage option instead. (Fed.
Def.’s Mot. Summ. J., Ex. C, Pl.’s Resp. to Req. for Adm’n 11;
id., Ex. A (“Kichak Decl.”) ¶¶ 20, 36-41.)
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Rouse stated in his deposition that he has been treated
fairly by the federal government with regard to the job
opportunities for which he has applied and been hired over the
course of his career. (LTC Partners’ Mot. Summ. J. (“LTC
Partners’ Mot.”), Ex. T (“Rouse Dep.”) 24:16 to 25:1.) Rouse
testified that, as far as he could recall, he has never been
denied a promotion for which he applied (Rouse Dep. 76:5-13),
and that he has received outstanding or exceptional work
evaluations over the years of his employment (Rouse Dep. 77:12-
21). He stated that he had never been denied healthcare, life
insurance, or vacation hours because of his wheelchair use.
(Rouse Dep. 77:22 to 78:19.) Rouse further acknowledged that he
has never experienced discrimination in hiring, placement,
promotions or other advancement opportunities in connection with
or as a result of his being denied long term care insurance
under the FLTCIP. (Rouse Dep. 82:3-9.) He nonetheless stated
that his denial from standard coverage “caused [him] to really
question why the federal government would have entered into
something like [FLTCIP],” and that he “felt like it was a
discriminatory offering.” (Rouse Dep. 79:1-14.) Rouse stated
that he feels that “people ought to be judged by their own --
the content of their character and the quality of their work and
their abilities, rather than being put in a box.” (Id.)
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The FLTCIP is a long-term care insurance program sponsored
by the federal government and administered by LTC Partners that
provides benefits for long-term care, including home and
community based services and services provided in nursing homes
and other institutions. OPM derives authority to establish and
administer the FLTCIP from the Long-Term Care Security Act
(“LTCSA”), 5 U.S.C. §§ 9001-9009. The Act does not require the
FLTCIP to provide universal coverage. 5 U.S.C. § 9002(e)(3)
(“Nothing in this chapter shall be considered to require that
long-term care insurance coverage be guaranteed to an eligible
individual.”). Under the program, OPM enters into a “master
contract” with a qualified insurance carrier that specifies the
benefits, premiums and other terms and conditions of the
policies issued by the carrier. 5 U.S.C. § 9003. A federal
employee must apply for coverage, and the carrier has discretion
to accept or reject the application in accordance with the terms
of the master contract. 5 U.S.C. § 9003(c); 5 C.F.R. § 875.407.
After LTCSA was enacted, OPM began the process of
establishing a long-term care insurance program and developing
underwriting standards for the program. (Kichak Decl. ¶¶ 14-
16.) Nancy Kichak, Associate Director for Employee Services and
Chief Human Capital Officer at OPM in 2000, when Congress
enacted the LTCSA, said that OPM “relied on the industry
experience in setting the guidelines OPM would use to manage the
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risk pool of the FLTCIP,” and that OPM used this information to
determine how to solicit bids from providers. (Kichak Decl.
¶ 15.) OPM contracted with defendant LTC Partners, a joint
venture between qualified carriers John Hancock Life Insurance
Company and Metropolitan Life Insurance Company, in order to
administer the FLTCIP. (Fed. Def.’s Stmt. ¶ 14.) LTC Partners
ultimately determined the conditions for the risk class of
individuals eligible for standard insurance coverage based on
input from OPM and discussions with experts including
underwriters and actuaries employed at John Hancock and MetLife.
(LTC Partners’ Mot., Stmt. of Material Facts Not in Dispute
(“LTC Partners’ Stmt.”) ¶ 22.) Underwriting is the process of
reviewing health and medical information provided during the
insurance application process in order to determine whether an
application presents a level of risk acceptable to the insurer.
(Id. ¶ 8.) The FLTCIP incorporates three general risk
classification categories: applicants eligible for standard
coverage; applicants eligible for the alternate insurance
coverage, and applicants not eligible for any insurance
coverage. (Id. ¶ 22.) Wheelchair users were determined to be
part of the risk class of individuals automatically ineligible
for standard coverage. (Id.)
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DISCUSSION
Summary judgment may be granted when the pleadings, the
discovery and disclosure materials on file, and any affidavits
show “that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Moore v. Hartman, 571 F.3d 62,
66 (D.C. Cir. 2009). Here, where both parties move for summary
judgment, the defendants are entitled to judgment in their favor
if the plaintiff fails “to make a showing sufficient to
establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Section 501 of the Rehabilitation Act provides a cause of
action for federal employees alleging disability discrimination.
Taylor v. Small, 350 F.3d 1286, 1291 (D.C. Cir. 2003). The
standards set forth in Title I of the Americans with
Disabilities Act of 1990 (“ADA”) apply when determining whether
§ 501 has been violated in a complaint alleging employment
discrimination. See 29 U.S.C. § 791(g) (applying ADA standards
to complaints alleging “nonaffirmative action employment
discrimination”). Under Title I of the ADA, “[n]o covered
entity shall discriminate against a qualified individual on the
basis of disability in regard to job application procedures, the
hiring, advancement, or discharge of employees, employee
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compensation, job training, and other terms, conditions, and
privileges of employment.” 42 U.S.C. § 12112(a). Discrimination
includes “participating in a contractual or other arrangement or
relationship that has the effect of subjecting a covered
entity’s qualified applicant or employee with a disability to
the discrimination prohibited by this subchapter[.]” 42 U.S.C.
§ 12112(b)(2).
Although Title I of the ADA generally prohibits employment
discrimination against disabled individuals, Congress created an
exception to enable organizations to sponsor or provide bona
fide benefit plans not subject to state insurance laws even if
they offer different terms to disabled individuals, provided,
however, that the benefits plan is not “used as a subterfuge to
evade the purposes” of the ADA in preventing employment
discrimination based on disability. 42 U.S.C. § 12201(c)(3). A
plan is bona fide if it “exists and pays benefits.” Pub.
Employees Ret. Sys. of Ohio v. Betts, 492 U.S. 158, 166 (1989)
(internal quotations omitted), superseded by statute, Older
Workers Benefit Protection Act of 1990, Pub. L. No. 101-433, 104
Stat. 978. There is no dispute that FLTCIP is a bona fide
benefit plan not subject to state laws that regulate insurance.
(Pl.’s Opp’n at 5 n.4.) The parties dispute whether the FLTCIP
is a subterfuge to evade the purposes of the ADA and therefore
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whether the safe harbor provision shields the defendants from
liability.
I. STANDARD FOR SUBTERFUGE
The D.C. Circuit has resolved the interpretation of
“subterfuge” that courts should employ to determine whether a
plaintiff can maintain a discrimination claim against a bona
fide benefit plan under the Rehabilitation Act. In Modderno v.
King, the Circuit accorded subterfuge its “‘ordinary meaning as
“a scheme, plan, stratagem, or artifice of evasion.”’” 82 F.3d
1059, 1064 (D.C. Cir. 1996) (quoting Betts, 492 U.S. at 167(quoting McMann, 434 U.S. at 203)). The court adopted this
definition from the Supreme Court’s decision in Betts, 492 U.S.
at 167, which interpreted a substantially similar exception
found in the Age Discrimination in Employment Act of 1967
(“ADEA”), 81 Stat. 602, as amended, 29 U.S.C. § 621 et seq. The
D.C. Circuit considered both the statutory language and
legislative history of the ADA to determine whether a different
definition than that employed under the ADEA was warranted, but
ultimately decided that Congress had intended the definition of
“subterfuge” employed in Betts to apply. The Modderno court
reasoned that “Betts had been decided . . . before Congress
adopted the ‘subterfuge’ language of § 501(c) of the ADA. Thus
when Congress chose the term ‘subterfuge’ for the insurance
safe-harbor of the ADA, it was on full alert as to what the
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Court understood the word to mean and possessed (obviously) a
full grasp of the linguistic devices available to avoid that
meaning.” Modderno, 82 F.3d at 1065. It further was not
persuaded to defer to the interpretation advanced by the EEOC --
that a disability-based distinction is invalid unless supported
by a cost-based showing -- because that interpretation was found
to be at odds with the plain language of statute. Id.Proof of subterfuge requires a showing of discriminatory
intent and “cannot mean merely a lack of actuarial
justification.” EEOC v. Aramark Corp., Inc., 208 F.3d 266, 271
(D.C. Cir. 2000). The D.C. Circuit and every other circuit to
have considered the issue have rejected the contention that the
ADA safe harbor provision applies only to plans with terms that
are actuarially justified. See Modderno, 82 F.3d at 1065(rejecting “actuarial defense interpretation of subterfuge”
because it contradicts the plain language of the ADA); Leonard
F. v. Israel Discount Bank of New York, 199 F.3d 99, 105 (2d
Cir. 1999) (“Neither the subterfuge clause nor the safe harbor
provision to which it belongs makes reference to ‘sound
actuarial principles.’”); Ford v. Schering-Plough Corp., 145
F.3d 601, 611-12 (3d Cir. 1998); Parker v. Metro. Life Ins. Co.,
121 F.3d 1006, 1012 n.5 (6th Cir. 1997); Krauel v. Iowa
Methodist Med. Ctr., 95 F.3d 674, 678-79 (8th Cir. 1996)).
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Proof of an actual intent to discriminate is an affirmative
element of a plaintiff’s cause of action. In Betts, the Supreme
Court reasoned that “[b]y requiring a showing of actual intent
to discriminate in those aspects of the employment relationship
protected by the provisions of the [Act], [the analogous ADEA
safe harbor provision] redefines the elements of a plaintiff’s
prima facie case instead of establishing a defense to what
otherwise would be a violation of the Act.” Betts, 492 U.S. at
181. Accordingly, the employee “seek[ing] to challenge a
benefit plan provision as a subterfuge to evade the purposes of
the Act . . . bears the burden of proving that the
discriminatory plan provision actually was intended” to
discriminate. Id. The D.C. Circuit has placed the burden on
the plaintiff in suits brought under the ADA. Aramark, 208 F.3d
at 273.
Rouse argues in several ways that the subterfuge standard
adopted in Modderno does not control this case, and he proposes
that the definition of subterfuge advanced in EEOC regulations
be used instead. (Pl.’s Mem. at 17-26.)2 Indeed, Rouse
2
The EEOC guidelines define subterfuge to mean disparate
treatment in an employee benefit plan on the basis of disability
“that is not justified by the risks or costs associated with the
disability,” including disparate treatment that is not
“justified by legitimate actuarial data, or by actual or
reasonably anticipated experience.” EEOC Interim Enforcement
Guidance on the Application of the Americans with Disabilities
Act of 1990 to Disability-Based Distinctions in Employer
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dedicates most of his briefing to evaluating the defendants’
alleged discrimination under the standards promulgated by the
EEOC rather than under the case law of this circuit. First,
Rouse argues that “Modderno is distinguishable from the instant
case because it dealt with limitations on benefits for a person
already covered by a plan rather than admittance to the
insurance plan itself.” (Pl.’s Mem. at 24 n.7 (emphasis in
original).) Second, Rouse argues the case is distinguishable
because “Modderno was brought under § 504 of the Rehabilitation
[Act], whereas the instant case arises under § 501.” (Id.)
Third, Rouse argues that the definition endorsed in Modderno
does not control because the D.C. Circuit has not had an
opportunity to review an insurance plan that was established
after the enactment of the ADA. (Pl.’s Opp’n at 15-16; Pl.’s
Reply at 16-17.) However, the defendants respond, correctly,
that these factual distinctions are irrelevant to the holding in
Modderno and do not diminish the controlling status of the case.
(Fed. Def.’s Opp’n at 16.) The same safe harbor provision
applies to actions under the Rehabilitation Act challenging
limitations of benefits for covered individuals as to actions
challenging denial of admittance into a given plan, and to
Rehabilitation Act cases under section 504, as well as under
Provided Health Insurance, 1993 WL 1497027, at *6 (EEOC
Guidance, June 8, 1993).
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section 501. The Modderno Court had to resolve the meaning of
the provision in order to decide the case before it, and the
statutory interpretation it adopted controls in future cases,
such as the instant case, where the definition of the provision
is at issue.
Similarly, although it is true that Modderno considered a
challenge to an insurance plan established before the enactment
of the ADA, this distinction bears only on the application of
the “subterfuge” definition to the facts of this case; it does
not permit lower courts to adopt a different definition
entirely. In Modderno, the D.C. Circuit, relying on Supreme
Court decisions in McMann and Betts, found that because the
ordinary meaning of “subterfuge” requires an actual intent “to
evade” congressional purposes, a benefit plan established before
the ADA’s passage could not constitute a subterfuge to evade the
ADA’s purposes within the meaning of the safe harbor provision.
Modderno, 82 F.3d at 1064 (noting the Supreme Court’s
observation that “[t]o spell out an intent in 1941 to evade a
statutory requirement not enacted until 1967 attributes, at the
very least, a remarkable prescience to the employer”) (quoting
McMann, 434 U.S. at 203)). Here, the FLTCIP was established
after the ADA’s passage. The rule that intent to evade is
extremely difficult or even impossible to establish with respect
to a plan adopted before the relevant statute was enacted does
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not apply. Defendants concede that it is theoretically possible
that the FLTCIP was established to evade the purposes of the
Rehabilitation Act (LTC Partners’ Reply at 9), but Rouse must
establish that the plan was a subterfuge by reference to the
definition endorsed in Modderno. Irrespective of the particular
facts of the Modderno case, the court’s “interpretation of the
safe harbor was essential to its reasoning as well as to its
disposition of the claims before it,” and the subterfuge
definition therefore “stands as binding precedent.” Aramark,
208 F.3d at 272.
Rouse criticizes the reasoning of Modderno, contending that
the D.C. Circuit, “[i]n applying Betts to ADA cases . . . did
not take the legislative history into account” (Pl.’s Reply at
3), and repeatedly invites this court essentially to overrule
the decision (Pl.’s Mem. at 24 n.7 (stating that “[t]o the
extent the Court considers Modderno applicable, the Court should
take the opportunity to reconsider its application under these
circumstances”); Pl.’s Reply at 3 (stating that because the D.C.
Circuit did not take legislative history into account, “the
Court in this case should take this opportunity to grant
deference to the EEOC’s interpretation of the ADA”)). The
decisions of the D.C. Circuit, including Modderno, are binding
on the lower courts of this circuit “unless and until overturned
by the court en banc or by Higher Authority.” Critical Mass
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Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871, 876
(D.C. Cir. 1992) (en banc) (citation omitted); see also Lee v.
United States, 570 F. Supp. 2d 142, 149 (D.D.C. 2008) (“The
doctrine of stare decisis compels district courts to adhere to a
decision of the Court of Appeals of their Circuit until such
time as the Court of Appeals or the Supreme Court of the United
States sees fit to overrule the decision.”) (quoting Owens–Ill.,
Inc. v. Aetna Cas. & Sur. Co., 597 F. Supp. 1515, 1520 (D.D.C.
1984)). To the extent that Rouse wishes to reargue the
relevance of the legislative history of the ADA and the agency
deference due to the EEOC, he must direct those arguments to the
appeals court sitting en banc. Rouse’s present reliance on the
EEOC standards therefore is misplaced.
Finally, Rouse relies on case law interpreting the safe
harbor provision applicable to insurers and other organizations
that underwrite, classify, or administer risks according to
state law, 42 U.S.C. § 12201(c)(1), as opposed to the provision
applicable to bona fide benefit plans, such as FLTCIP, that are
not subject to state laws that regulate insurance, 42 U.S.C.
§ 12201(c)(3). The relevant ADA provisions are as follows:
(c) Insurance. Subchapters I through III of this chapter and
title IV of this Act shall not be construed to prohibit or
restrict –- . . .
(1) an insurer, hospital or medical service company, health
maintenance organization, or any agent, or entity that
administers benefit plans, or similar organizations from
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underwriting risks, classifying risks, or administering
such risks that are based on or not inconsistent with State
law; or . . .
(3) a person or organization covered by this Act from
establishing, sponsoring, observing or administering the
terms of a bona fide benefit plan that is not subject to
State laws that regulate insurance.
42 U.S.C. § 12201(c) (emphasis added). These two subsections
are subject to the identical restriction that they “shall not be
used as a subterfuge to evade the purposes of subchapter[s] I
and III of this chapter.” Id. However, although subsection
(c)(1) expressly limits the exemption to insurers and others who
underwrite, classify, or administer risks based on or not
inconsistent with state law, subsection (c)(3) makes no mention
of underwriting or otherwise assessing risks. Rouse cites
Doukas v. Metropolitan Life Ins. Co., 950 F. Supp. 422, 424
(D.N.H. 1996). (Pl.’s Combined Opp’n at 17.) There, a district
court considered an action by a plaintiff to recover under the
ADA against a mortgage disability insurer who denied her
application for insurance because the plaintiff’s medical
history, which included bipolar disorder, “did not meet its
underwriting standards governing disability coverage.” Although
the district court found genuine issues of fact existed as to
whether the insurer’s decision was “related to actual or
reasonably anticipated experience,” Doukas, 950 F. Supp. at 432,
its decision addressed the safe harbor provision in subsection
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(c)(1), not subsection (c)(3). The court’s holding that “it
appear[ed] that an insurance company’s failure to rely on
actuarial principles or actual or reasonably anticipated
experience may be inconsistent with New Hampshire law,” id. at
428 (emphasis added), does not support Rouse’s proposal to
require actuarial justification in this case.
II. FRINGE-BENEFIT VS. NON-FRINGE-BENEFIT ASPECTS OF EMPLOYMENT
RELATIONSHIP
A benefits plan is a subterfuge “to evade the purposes” of
the ADA, 42 U.S.C. § 12201(c), where there is actual intent to
use the terms of the benefit plan as a means of discriminating
against a disabled individual in protected aspects of
employment. Applying its definition of subterfuge, Betts
concluded that “the provisions of a bona fide benefit plan [were
exempt] from the purview of the ADEA so long as the plan [was]
not a method of discriminating in other, non-fringe-benefit
aspects of the employment relationship[.]”3 Betts, 492 U.S. at
177 (emphasis added). Rouse maintains that Betts’s requirement
is limited to suits under the ADEA, and that here, where suit is
brought under the Rehabilitation Act and the ADA safe harbor
provision applies, a benefit plan is exempt only if it does not
3
Fringe benefits have been defined to include “‘medical,
hospital, accident, life insurance and retirement benefits;
profit-sharing and bonus plans; leave; and other terms,
conditions, and privileges of employment.’” Krauel v. Iowa
Methodist Med. Ctr., 95 F.3d 674, 679 n.6 (8th Cir. 1996)
(quoting 29 C.F.R. § 1604.9).
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discriminate in either fringe-benefit or non-fringe-benefit
aspects of employment. (Pl.’s Opp’n at 21-22.) Betts concluded
that a bona fide benefit plan is entitled to rely on the safe
harbor provision unless it discriminates in non-fringe-benefit
aspects of employment in order to give meaningful effect to both
the ADEA’s general prohibition of age-based discrimination and
the safe harbor provision. The general prohibition provided
that “it is unlawful for an employer ‘to fail or refuse to hire
or discharge any individual or otherwise discriminate against
any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual’s age[,]’” Betts, 492 U.S. at 165 (quoting § 4(a)(1)
of the ADEA), while the safe harbor provision exempted bona fide
benefit plans in a manner nearly identical to the analogous
provision in the ADA. The Court reasoned that interpreting the
safe harbor provision to permit liability where a plan
discriminated in fringe-benefit aspects of employment “would in
effect render [the safe harbor provision] nugatory” since “[a]ny
benefit plan that by its terms mandated discrimination against
older workers would also be facially irreconcilable with the
prohibitions in § 4(a)(1) and, therefore, with the purposes of
the Act itself.” Betts, 492 U.S. at 177.
The same holds true in the present context. Concluding
that FLTCIP is ineligible for the safe harbor provision because
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it makes disability-based distinctions in a “fringe-benefit
aspect” of employment would place the very purpose of an
explicit exemption for bona fide benefit plans in serious doubt.
Rouse argues that such a conclusion is justified by the ADA’s
definition of the term “discrimination,” which includes
participating in “a relationship with . . . an organization
providing fringe benefits to an employee of the covered entity,”
where the relationship “has the effect of subjecting a covered
entity’s qualified applicant or employee with a disability to
the discrimination prohibited by this subchapter.” 42 U.S.C.
§ 12112(b)(2) (emphasis added). According to Rouse, this
definition proves that the purpose of the ADA includes avoiding
discrimination in both the provision of fringe benefits and in
other aspects of employment. (Pl.’s Reply at 20-21.) He
further cites an Eleventh Circuit opinion, Johnson v. K Mart
Corp., 273 F.3d 1035, 1050-51 (11th Cir. 2001), vacated pending
reh’g en banc, 273 F.3d 1035, 1070 (11th Cir. 2001) (decision
suspended as a result of the automatic stay imposed by the
defendant’s bankruptcy petition), that agrees with his
reasoning, concluding that Ҥ 12112(b) -- which includes in the
definition of discrimination a wide array of actions that
‘adversely affect[ ] the opportunities or status of [job
applicants or employees] because of . . . disability’ -- not
only reinforces a broad reading of the rule against disability-
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based discrimination but specifically prohibits discrimination
in fringe benefits.”
Rouse’s argument misreads the language of § 12112(b)(2).
By its terms, subsection (b)(2) describes situations in which a
covered entity may be held liable under the ADA for
discrimination carried out not by the entity itself but by the
entity’s contractual or other partners, including the entity’s
fringe benefit plans. However, the provision does not purport
to alter or expand the substance of the “discrimination
prohibited by this subchapter,” 42 U.S.C. § 12112(b)(2), which
is explicitly set forth in the previous section, § 12112(a).
Subsection (a) prohibits disability-based discrimination “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). Although “terms, conditions, and privileges
of employment” could be construed to include bona fide fringe
benefit plans, the explicitly more specific reference to those
plans in the safe harbor provision takes them out of the general
prohibition, as the Supreme Court recognized in Betts when
interpreting ADEA language that was identical in relevant part.
Betts, 492 U.S. at 165 (noting that “[n]otwithstanding th[e]
general prohibition” against age-based discrimination “with
respect to . . . terms, conditions, or privileges of employment”
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the safe harbor provision made specific exceptions for bona fide
employee benefit plans). In sum, the rule in Betts, requiring a
plaintiff to show discrimination in non-fringe-benefit aspects
of employment, is warranted here. There is no language in the
ADA compelling a different result and adopting Rouse’s proposed
position would render the safe harbor provision meaningless.
III. FLTCIP’S ELIGIBILITY FOR SAFE HARBOR PROVISION
In view of the standards outlined above, defendants’
entitlement to summary judgment turns on whether Rouse has
created a triable issue that the FLTCIP was a means of
discriminating against him in non-fringe-benefit aspects of his
employment. The Supreme Court stated in the ADEA context that
examples of discrimination in a non-fringe benefit aspect of
employment might include an employer reducing salaries for all
employees “while substantially increasing benefits for younger
workers[,]” or an employer “adopt[ing] a plan provision
formulated to retaliate against” an employee who filed a
discrimination complaint. Betts, 492 U.S. at 180. Rouse,
however, stated in his deposition that he had been treated
fairly by the federal government with regard to the employment
opportunities for which he has applied and been hired over the
course of his career (Rouse Dep. 24:16 to 25:1), and that he has
never experienced discrimination in hiring, placement,
promotions or other advancement opportunities in connection with
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or as a result of his being denied standard long term care
insurance under the FLTCIP (Rouse Dep. 82:3-9). Rouse contends
that FLTCIP is a subterfuge to evade the purposes of the ADA
even under the Betts standard because a goal of FLTCIP is to
“attract and retain employees,” which he characterizes as a non-
fringe benefit aspect of the employment relationship, and the
automatic exclusion of wheelchair users from standard coverage
discourages them from seeking or maintaining federal employment.
(Pl.’s Opp’n at 22.)
Employing the definition of “subterfuge” endorsed by the
D.C. Circuit, Rouse must show that defendants designed FLTCIP as
“a scheme, plan, stratagem, or artifice of evasion,” Modderno,
82 F.3d at 1064 (internal quotations omitted), to discourage
wheelchair users from seeking or maintaining federal employment.
Rouse has not proffered evidence tending to prove such actual
intent. Rouse, moreover, is a long-time federal employee who
does not contend that he was discouraged from seeking or
maintaining government employment. See, e.g., Aramark, 208 F.3d
at 272 (“Neither appellant explains how the plan amendments
could be a subterfuge to evade the ADA and discriminate against
[appellant] if they did not affect her.”). Although Rouse
proffered evidence that the federal government has witnessed a
declining number of disabled employees since 2000, the
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conclusion that implementation of FLTCIP caused or was intended
to cause such decline is entirely speculative.
Rouse also argues that the automatic exclusion of
wheelchair users from standard coverage stigmatizes disabled
federal employees and insulted his own personal worth. (Pl.’s
Opp’n at 22-23.) Although such effects might arguably be
characterized as products of prohibited discrimination in regard
to “other conditions” of employment, 42 U.S.C. § 12112(a),
stigma and insult arising from exclusion from standard coverage
are inherently connected to the terms and conditions of the
fringe benefit itself, rather than the terms and conditions of
Rouse’s employment. Such effects therefore are not properly
considered to relate to non-fringe-benefit aspects of
employment.
CONCLUSION
No material facts are in dispute and Rouse has not produced
evidence tending to show that defendants discriminated against
him in a non-fringe-benefit aspect of employment. Summary
judgment therefore will be entered in favor of the defendants.
An appropriate order accompanies this memorandum opinion.
SIGNED this 24th day of March, 2012.
__________/s/_______________
RICHARD W. ROBERTS
United States District Judge