Rouse v. Berry, Civil Action No. 06-2088 (RWR).

• Decision Date: 29 January 2010
• Docket Number: Civil Action No. 06-2088 (RWR).
• Citation: 680 F.Supp.2d 233
• Parties: Ralph ROUSE, Jr., Plaintiff, v. John BERRY, et al., Defendants.
• Court: U.S. District Court — District of Columbia

680 F.Supp.2d 233

Ralph ROUSE, Jr., Plaintiff,

v.John BERRY, et al., Defendants.

Civil Action No. 06-2088 (RWR).

United States District Court,

District of Columbia.

Decided: Jan. 29, 2010.

James Charles Bailey, Jason H. Ehrenberg, Bailey & Ehrenberg PLLC, Washington, DC, for Plaintiff.

Justin M. Sandberg, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

RICHARD W. ROBERTS, District Judge.

Plaintiff Ralph Rouse, Jr. brings claims against the Director ¹ 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, codi- fied 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 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 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 29 U.S.C § 791(g) (applying ADA standards to complaints alleging "nonaffirmative action em- ployment 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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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. Insulation Contractors, 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, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)) (internal quotation marks and citation omitted). "[0]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, 127 S.Ct. 1955. 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,- U.S.-, 129 S.Ct. 1937, 173

L.Ed.2d 868 (2009), invalidated Aktieselskabet). A complaint should contain enough factual heft to show an entitlement to relief. Twombly, 550 U.S. at 557, 127 S.Ct. 1955. 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, 127 S.Ct 1955. "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 U.S. at 512, 122 S.Ct. 992.³ 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.

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").⁵This 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, 109 S.Ct. 2854, 106 L.Ed.2d 134 (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., 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, 109 S.Ct. 2854, 106 L.Ed.2d 134 (1989) (quoting United Air Lines, Inc. v. McMann, 434 U.S. 192, 203, 98 S.Ct. 444, 54 L.Ed.2d 402 (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, 109 S.Ct. 2854; 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...