                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                                 No. 98-30333
                               Summary Calendar

DENNIS MULLEN,
                                                              Plaintiff-Appellant,
                                      versus
BOYD GAMING CORPORATION;
TREASURE CHEST CASINO, LLC,
                                                           Defendants-Appellees.



                  Appeal from the United States District Court
                     for the Eastern District of Louisiana
                               (96-CV-3038-T)


                                   June 2, 1999
Before POLITZ, BARKSDALE, and STEWART, Circuit Judges.
POLITZ, Circuit Judge:*
      Dennis Mullen appeals an adverse summary judgment in favor of Boyd

Gaming Corporation and Treasure Chest Casino on his American with Disabilities
Act of 1990 (ADA) claim. For the reasons assigned, we affirm.

                                BACKGROUND

      In April, 1995, Mullen’s physician recommended gastric bypass surgery for



  *
    Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set
forth in 5TH CIR. R. 47.5.4.
treatment of his morbid obesity. At six feet, Mullen weighed over four hundred
pounds and suffered from various health problems connected with his excessive

weight. At this time, Mullen was an employee of Treasure Chest Casino. The

Treasure Chest employee benefits plan established and administered by Boyd
Gaming provided that the plan would not cover any expenses caused by, or on

account of:

         Surgical or invasive treatment, or reversal thereof, for reduction of
         weight, regardless of associated medical or physiological conditions,
         including treatment of the complications resulting from surgical
         treatment of obesity.

         Mullen filed suit against Boyd Gaming and Treasure Chest Casino, claiming

that the exclusion violated the ADA. Boyd Gaming and Treasure Chest Casino
moved for summary judgment which the district court granted, finding that the

plan’s exclusion of weight loss treatment applied equally to all employees and was
thus not violative of the ADA. Mullen timely appealed.
                                      ANALYSIS

         Summary judgment is appropriate when the record discloses that there is no

genuine issue as to any material fact and that the movant is entitled to judgment as
a matter of law.1 In determining whether summary judgment was appropriate, we

conduct a de novo review, judging the facts in the light most favorable to the non-

movant.2

         On appeal, Mullen disputes the district court’s determination that the weight

   1
       Fed. R Civ.P. 56(c); City of Arlington v. FDIC, 963 F.2d 79 (5th Cir. 1992).
  2
      Floors Unlimited, Inc. v. Fieldcrest Cannon, Inc., 55 F.3d 181 (5th Cir. 1995).
                                           2
loss treatment exclusion applies equally to all employees. He contends that the
plan excludes a procedure that is medically necessary only for a specific class of

disabled individuals, namely, the morbidly obese. He maintains that because only

the morbidly obese qualify for this treatment, and because they are recognized as
disabled, the plan’s exclusion of this treatment represents an impermissible

disability-based distinction.

            Under the ADA, insurance distinctions that apply equally to all insured

employees – both those with and without disabilities – do not discriminate on the
basis of disability, even though such distinctions may have a greater impact on
individuals with disabilities.3 The exclusion contained in Boyd Gaming’s benefits
is just such a distinction, as it applies to all who seek surgical or invasive treatment

for weight, regardless of whether they are disabled. Despite his claim, Mullen has
offered no proof that the treatment in question is required for or sought by the

morbidly obese only,4 or that the plan’s exclusion is a subterfuge for
discrimination.5
            Agreeing with the district court that the benefits plan exclusion was not an

impermissible distinction violative of the ADA, we conclude that Mullen’s claim

  3
   EEOC Interim Policy Guidance: ADA and Health Insurance, ADA Man. (BNA)
70:1051 (June 8, 1993); Krauel v. Iowa Methodist Medical Center, 95 F.3d 674
(8th Cir. 1996).
  4
   EEOC Interim Policy Guidance: ADA and Health Insurance, ADA Man. (BNA)
70:1051 (June 8, 1993) provides that limits on medical procedures that are not
exclusively or nearly exclusively utilized for a treatment of a particular disability
are not distinctions based on a disability.
      5
          42 U.S.C. § 12201(c); Krauel.
                                              3
must fail, and the judgment appealed is AFFIRMED.




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