                    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 AND ORDER

     Plaintiff Ralph Rouse, Jr. brings claims against the

Director1 of the Office of Personnel Management (“OPM”), and Long

Term Care Partners, LLC (“LTC Partners”), alleging that they

violated § 501 and § 504 of the Rehabilitation Act, codified

respectively at 29 U.S.C. § 791 and 29 U.S.C. § 794, when Rouse

was denied the opportunity to participate in the Federal Long

Term Care Insurance Program (“LTCIP”).   The Director and LTC

Partners have moved to dismiss the complaint under Federal Rule

of Civil Procedure 12(b)(6), asserting that 1) Rouse has failed

to plead a claim upon which relief can be granted under § 501

because he has not alleged sufficient facts to show that the

benefits plan is a subterfuge for discrimination, and that 2)

Rouse, as a government employee, cannot bring a claim under

§ 504.   OPM and LTC Partners’ motions to dismiss will be granted


     1
       John Berry is substituted for Linda Springer under Fed.
R. Civ. P. 25(d).
                                  -2-

in part and denied in part because Rouse has pled sufficient

facts to allege a claim plausibly entitling him to relief under

§ 501, but he cannot bring a claim under § 504 since he is a

federal employee.

                              BACKGROUND

       Rouse, an employee of the Department of Health and Human

Services, applied for long term care insurance through the LTCIP.

(Second Am. Compl. ¶¶ 6, 13, 15.)       LTCIP is sponsored by OPM and

administered by LTC Partners.    (Id. ¶ 14.)    Rouse has paraplegia

and uses a push wheelchair to assist with walking.      (Id. ¶¶ 11-

12.)    He revealed this use in his LTCIP 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.)   Rouse submitted his application and later received

a letter from LTC Partners denying his coverage because of his

wheelchair use.    (Id. ¶¶ 15, 17.)     Rouse brings his action under

both § 501 and § 504 of the Rehabilitation Act, claiming that the

defendants unlawfully discriminated against him because of his

disability when they rejected his LTCIP application.

       The OPM Director and LTC Partners have moved to dismiss the

complaint under Fed. R. Civ. P. 12(b)(6), arguing that Rouse has

failed to allege sufficient facts that demonstrate that the
                                 -3-

administration of the plan was a subterfuge to evade the purposes

of the Rehabilitation Act under § 501, and that federal employees

are prohibited from bringing claims under § 504.   (OPM’s Mem. in

Supp. of Renewed Mot. to Dis. (“OPM’s Mem.”) at 7, 16; LTC

Partners’ Mem. in Supp. of Renewed Mot. to Dis. (“LTC Mem.”) at

8, 14.)   Rouse argues that he has pled all the facts necessary to

state a claim under § 501 and that, as a “participant in a

program or activity conducted by an Executive agency[,]” he also

has a cognizable claim under § 504 even though he is a federal

employee.   (Pl.’s Mem. in Opp’n to Def. John Berry’s Renewed Mot.

to Dis. (“Pl.’s OPM Opp’n”) at 7, 11-12 (internal quotation marks

omitted); Pl.’s Mem. in Opp’n to Def. LTC Partners’ Renewed Mot.

to Dis. at 7-8.)

                              DISCUSSION

     Section 501 provides a cause of action for federal employees

alleging disability discrimination under the Rehabilitation Act,

Taylor v. Small, 350 F.3d 1286, 1291 (D.C. Cir. 2003), while

§ 504 “prohibits a federal agency or a federally funded program

from denying benefits to handicapped individuals solely on the

basis of their disability.”    Modderno v. King, 871 F. Supp. 40,

42 (D.D.C. 1994).   The standards under Title I of the Americans

with Disabilities Act of 1990 (“ADA”) apply when determining

whether § 501 and § 504 of the Rehabilitation Act have been

violated in a complaint alleging employment discrimination.    See
                                  -4-

29 U.S.C. § 791(g) (applying ADA standards to complaints alleging

“nonaffirmative action employment discrimination”); 29 U.S.C.

§ 794(d).   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 compensation,

job training, and other terms, conditions, and privileges of

employment.”2    42 U.S.C. § 12112(a).

I.   SECTION 501

     Federal Rule of Civil Procedure 8(a)(2) requires that a

complaint contain only “a short and plain statement of the claim

showing that the pleader is entitled to relief[.]”     Fed. R. Civ.

P. 8(a)(2).     There is ordinarily no need for a plaintiff to plead

detailed factual allegations, as the rule simply “‘contemplate[s]

[a] statement of circumstances, occurrences, and events in

support of the claim presented[.]’”      Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 n.3 (2007) (quoting 5 C. Wright & A. Miller,

Federal Practice and Procedure § 1202, at 94 (3d ed. 2004)).     A

plaintiff is not required to plead in his complaint all elements

of a prima facie case, or “plead law or match facts to every

element of a legal theory.”    Miller v. Insulations Contractors,


     2
       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).
                                  -5-

Inc., 608 F. Supp. 2d 97, 106 (D.D.C. 2009) (quoting Krieger v.

Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000) and citing

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002)) (internal

quotation marks and citation omitted).       “[O]nce a claim has been

stated adequately, it may be supported by showing any set of

facts consistent with the allegations in the complaint.”

Twombly, 550 U.S. at 563.     Accord, Aktieselskabet AF 21. Nov.

2001 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir. 2008).       But

see Tooley v. Napolitano, 586 F.3d 1006, 1007 (D.C. Cir. 2009)

(declining to reject or address the government’s argument that

Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), invalidated

Aktieselskabet).   A complaint should contain enough factual heft

to show an entitlement to relief.       Twombly, 550 U.S. at 557.

That is, a complaint needs to plead “only enough facts to [nudge]

a claim to relief . . . across the line from conceivable to

plausible[.]”   Id. at 570.    “Determining whether a complaint

states a plausible claim for relief will . . . be a context-

specific task that requires the reviewing court to draw on its

judicial experience and common sense.”       Iqbal, 129 S. Ct. at

1950.

     In the context of a fairly straightforward employment

discrimination complaint, plaintiffs traditionally have not been

subject to a heightened pleading standard.       Swierkiewicz, 534
                                -6-

U.S. at 512.3   The D.C. Circuit has long recognized the ease with

which a plaintiff claiming employment discrimination can survive

a Rule 12(b)(6) motion to dismiss for failure to state a claim

upon which relief may be granted.     “‘Because racial

discrimination in employment is a claim upon which relief can be

granted, . . . “I was turned down for a job because of my race”

is all a complaint has to state to survive a motion to dismiss

under [Rule] 12(b)(6).’”   Potts v. Howard Univ. Hosp., 258 Fed.

Appx. 346, 347 (D.C. Cir. 2007) (quoting Sparrow v. United Air

Lines, Inc., 216 F.3d 1111, 1115 (D.C. Cir. 2000)).      Rouse raises

a straightforward federal employee discrimination claim,4 and the

question is whether his § 501 claim pleads enough facts to set

forth a plausible claim.




     3
       Indeed, Twombly explicitly disavowed any retreat from
Swierkiewicz, see Twombly, 550 U.S. at 569-70, and Iqbal did not
even discuss Swierkiewicz, much less disavow it.
     4
       The factual context of Rouse’s complaint presents no
complexities such as a Sherman Act conspiracy class action
complaint alleging certain anti-competitive parallel conduct but
no factual context suggesting agreement as distinct from
identical independent action, Twombly, 550 U.S. at 548-49, or a
damages claim under Bivens v. Six Unknown Fed. Narcotics Agents,
403 U.S. 388 (1971), that high officials entitled to assert a
qualified immunity defense directed plaintiff’s detention
purposefully on account of his race and religion in violation of
clearly established law under the Free Exercise Clause of the
First Amendment and the Due Process Clause of the Fifth
Amendment. Iqbal, 129 S. Ct. at 1943-45, 1948.
                                -7-

     Despite its general intention to prohibit employment

discrimination against disabled individuals as expressed in Title

I of the ADA, Congress created an exception so that organizations

can sponsor or provide bona fide benefit plans not subject to

state insurance laws even if they offer different terms to

disabled individuals.   42 U.S.C. § 12201(c)(3) (stating that

Title I shall not be construed to prohibit or restrict “a person

or organization covered by this chapter from establishing,

sponsoring, observing, or administering the terms of a bona fide

benefit plan that is not subject to State laws that regulate

insurance”).5   This exception, commonly referred to as a safe

harbor provision, allows a bona fide benefits plan to exist even

if it would otherwise violate the ADA.   However, the exception

does not allow an organization to administer a benefits plan that

is “used as a subterfuge to evade the purposes” of the ADA in

preventing employment discrimination based on disability.    42

U.S.C. § 12201(c).

     The D.C. Circuit has looked to Pub. Employees Ret. Sys. of

Ohio v. Betts, 492 U.S. 158, 165 (1989), superceded by statute,

Older Workers Benefit Protection Act of 1990, Pub. L. No. 101-

433, 104 Stat. 978, as recognized in EEOC v. Aramark Corp., Inc.,



     5
       The parties agree that of the three exceptions in 42
U.S.C. § 12201(c), exception (c)(3) applies to LTCIP, which is
not subject to state laws. (OPM’s Mem. at 7; Pl.’s OPM Opp’n at
8.)
                                  -8-

208 F.3d 266, 271 (D.C. Cir. 2000), which involved a similar

exception found in the Age Discrimination in Employment Act of

1967, 81 Stat. 602, as amended, 29 U.S.C. § 621 et seq, for

guidance when determining whether a plan is a subterfuge for

discrimination.     Modderno v. King, 82 F.3d 1059, 1064 (D.C. Cir.

1996) (applying Betts in the Rehabilitation Act context).

Subterfuge is defined as “‘a scheme, plan, strategem, or artiface

of evasion,’ which . . . connotes a specific ‘intent . . . to

evade a statutory requirement.’”    Betts, 492 U.S. 158, 171 (1989)

(quoting United Air Lines, Inc. v. McMann, 434 U.S. 192, 203

(1977)).   A statutory requirement is evaded where there is

“actual intent to discriminate in those aspects of the employment

relationship protected” by the ADA.     Betts, 492 U.S. at 181;

Aramark Corp., Inc, 208 F.3d at 271 (stating that “[u]nder the

ADA, then, “subterfuge to evade” still requires intent”).     Betts

concluded that “the provisions of a bona fide benefit plan [were

exempt] so long as the plan [was] not a method of discriminating

in other, non-fringe-benefit aspects of the employment

relationship[.]”6    Betts, 492 U.S. at 177.   Examples of age-based

discrimination in a non-fringe benefit aspect might include an



     6
       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).
                                  -9-

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.    Id. at 180.

     While Rouse must establish as part of his prima facie case

that the safe harbor is merely a subterfuge, see Betts, 492 U.S.

at 181, he need not plead every element of his prima facie claim

to survive a motion to dismiss.    Swierkiewicz, 534 U.S. at 511

(“This Court has never indicated that the requirements for

establishing a prima facie case . . . also apply to the pleading

standard that plaintiffs must satisfy in order to survive a

motion to dismiss.”).   Therefore, a motion for summary judgment,

and not a motion to dismiss, is the proper vehicle by which the

defendants may raise their challenges to the sufficiency of

Rouse’s showing of subterfuge.

     However, Rouse’s allegations must still give rise to an

entitlement to relief in order to survive the motion to dismiss,

meaning that he must have pled a factually plausible § 501 claim

under the Rehabilitation Act.    “Under Title VII, the ADEA, and

the Rehabilitation Act, the two essential elements of a[n

employment] discrimination claim are that (i) the plaintiff

suffered an adverse employment action (ii) because of the

plaintiff’s race, color, religion, sex, national origin, age, or
                                -10-

disability.”    Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C.

Cir. 2008).

     Rouse pled that he “received a letter from [LTC Partners],

stating that he was denied coverage because he answered that he

used a wheelchair[.]”    (Second Am. Compl. ¶ 17.)   This factual

assertion plausibly alleges the adverse employment action prong

of Rouse’s discrimination claim.    See Greer v. Paulson, 505 F.3d

1306, 1317 (D.C. Cir. 2007) (noting that a diminution in benefits

qualifies as an adverse employment action).    It also satisfies

the second material element of an employment discrimination claim

–– that the defendant took action because of a prohibited

consideration.    Unlike what the plaintiff pled in Iqbal, Rouse

has not merely parroted the legal elements of the claim in his

complaint.    He has made a factual allegation that provides

independent corroboration of his belief that LTC Partners denied

his coverage on the basis of his disability, and that allegation

is entitled to a presumption of truth.    Cf. Twombly, 550 U.S. at

555 (noting that “on a motion to dismiss, courts ‘are not bound

to accept as true a legal conclusion couched as a factual

allegation’” (quoting Papasan v. Allain, 478 U.S. 265, 286
                                -11-

(1986))).7   Thus, Rouse has stated a claim of employment

discrimination under § 501 of the Rehabilitation Act.

II.   SECTION 504

      Section 504 of the Rehabilitation Act prohibits

“discrimination . . . under any program or activity conducted by

any Executive Agency[.]”    29 U.S.C. § 794(a).   The D.C. Circuit

does not recognize a cause of action under § 504 for federal

employees claiming employment discrimination.     Taylor, 350 F.3d

at 1291 (“[B]ecause the Congress addressed discrimination against

Government employees . . . in § 501, it is highly unlikely the

Congress meant to address the subject again in § 504.”).     Rouse

attempts to distinguish Taylor on the grounds that although he is

a federal employee, he is also a potential participant in the

long-term insurance benefit program, which is administered by

OPM, an executive agency.    (Pl.’s OPM Opp’n at 6-7.)   This

distinction, however, is unavailing, as Rouse’s entitlement to

participate in the program stems entirely from his status as a

federal employee.   Participation in the program is a benefit for

OPM employees, and any disparate treatment in its administration,

then, is employment discrimination.    Section 504 does not provide

Rouse an “alternative route for relief under the Rehabilitation



      7
       In any event, Rouse has pled sufficient facts in support
of his claim of discrimination to satisfy any fair reading of
pleading requirements articulated in Sparrow, Swierkiewicz,
Twombly, or Iqbal.
                               -12-

Act” for an employment discrimination claim.   Taylor, 350 F.3d at

1291 (quoting Rivera v. Heyman, 157 F.3d 101, 104 (2d Cir.

1998)).   Count II will therefore be dismissed.8

                       CONCLUSION AND ORDER

     Because Rouse has pled facts demonstrating that he suffered

an adverse employment event because of his disability, he has

established a claim under § 501 even without establishing that

the administration of the benefits plan is a subterfuge for

discrimination.   However, he cannot bring a claim under § 504

because but for his status as a federal employee, he would not be

eligible to participate in the benefits program.   Accordingly, it

is hereby

     ORDERED that the OPM Director’s and LTC Partners’ motions

[32, 33] to dismiss be, and hereby are, DENIED as to Counts I and

III, and GRANTED as to Count II.   It is further

     ORDERED that the parties confer and file by February 12,

2010 a joint status report and proposed order reflecting three

mutually agreeable dates on which to hold a scheduling

conference.




     8
       The defendants also argue that since Counts I and II must
be dismissed, the request for a declaratory judgment in Count III
based upon the violations alleged in Counts I and II must be
dismissed. Since Count I survives, Count III will not be
dismissed.
                          -13-

SIGNED this 29th day of January, 2010.


                         ________/S/_________________
                         RICHARD W. ROBERTS
                         United States District Judge
