                    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.
                                - 2 -


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.)
                                - 3 -


       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.)
                                - 4 -


       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
                                   - 5 -


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.)
                               - 6 -


                            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
                               - 7 -


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
                               - 8 -


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
                               - 9 -


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)).
                                  - 10 -


       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
                              - 11 -


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).
                              - 12 -


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
                              - 13 -


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
                              - 14 -


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
                              - 15 -


     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
                              - 16 -


(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).
                               - 17 -


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
                               - 18 -


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 “§ 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-
                              - 19 -


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”
                               - 20 -


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
                              - 21 -


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
                              - 22 -


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
